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Info Service on WTO and Trade Issues (Dec22/07) Geneva, 7 Dec (D. Ravi Kanth) — Many developing and least-developed countries on 6 December demanded an agreement on extending the World Trade Organization’s 17 June Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics, but major industrialized countries, particularly the United States, seem to have spiked the deadline on its extension, as mandated by trade ministers at MC12, said people familiar with the development. As per paragraph eight of the WTO’s 12th ministerial conference (MC12) Decision on the TRIPS Agreement, members ought to have concluded a decision to extend the Ministerial Decision on vaccines to diagnostics and therapeutics by 17 December. Given the inimical positions adopted by major industrialized countries, particularly the United States and the European Union, where Big Pharma is also located, there may well be no decision by 17 December, and if anything, the “can is being kicked down the road” like the other MC12 decisions, said people, who asked not to be quoted. Hours before the beginning of the informal meeting of the WTO’s TRIPS Council on 6 December, the Office of the United States Trade Representative (USTR) announced that it has asked the US International Trade Commission (USITC) “to launch an investigation to provide information on COVID-19 diagnostics and therapeutics.” In what appears to be a calculated move, the US said that while it “supports the December 17 deadline to decide whether to extend the WTO Ministerial Decision on the TRIPS Agreement to cover the production and supply of COVID-19 diagnostics and therapeutics,” it has asked the USITC to launch an investigation. The US trade envoy to the WTO, Ambassador Maria Pagan, said that there are “real questions on issues regarding market dynamics, including supply and demand, price points, the relationship between testing and treating, and production and access.” In effect, the US has asked for additional time to enable the USITC to complete its investigation of these complex issues. The timing of the US decision appears somewhat puzzling as it could have announced the same decision six months ago, instead of “throwing a spanner in the works” days before the deadline, said a person, who asked not to be quoted. “GREEN ROOM” MEETING Once the US decision was made public well before noon in Geneva, the WTO Director-General, Ms Ngozi Okonjo- Iweala, convened a “green room” meeting of select trade envoys, apparently to discuss the way forward on what could be done on the decision as contained in paragraph eight of the MC12 Ministerial Decision on the TRIPS Agreement. As reported in SUNS #9624 dated 27 July 2022, the US had initially maintained at a General Council meeting that paragraph eight of the Ministerial Decision on the TRIPS Agreement is not a mandate but only a decision to continue the discussions. At the closed-door “green room” meeting convened by the DG that lasted for about two hours, there was a divide between the major pharmaceutical-producing countries in the North on the one side, and developing and least-developed countries such as South Africa, India, Indonesia, Bangladesh, and several other members, on the other, said people, who asked not to be quoted. The 65 co-sponsors, who had originally proposed the TRIPS waiver in October 2020, called for “the MC12 Decision on the TRIPS Agreement [to be] extended mutatis mutandis for the production and supply of COVID-19 therapeutics and diagnostics.” But several industrialized countries, including the United States, the European Union, and Canada among others called for extending the 17 December deadline further to an unspecified period ostensibly for holding more discussions as well as consultations at various levels. Switzerland is apparently the only country that opposed a decision for extending the MC12 Ministerial Decision on the TRIPS Agreement to diagnostics and therapeutics on grounds that there is no need at this juncture, said people who asked not to be quoted. At the “green room” meeting, the US trade envoy Ambassador Pagan informed that the USTR had already referred the issue to the US International Trade Commission, suggesting that Washington has placed the issue under scrutiny, said people who asked not to be quoted. The EU apparently suggested at the “green room” meeting about extending the deadline beyond 17 December in order to hold further discussions and consultations. The EU, however, did not specify any specific deadline at the “green room” meeting for concluding the discussions. Brazil appears to have suggested a short extension of the deadline beyond 17 December. Canada apparently proposed extending the deadline on diagnostics and therapeutics until the 13th ministerial conference (MC13), while Singapore said it would not be wise to extend it till the next ministerial meeting as it could then become a bargaining chip for the proponents, said people familiar with the “green room” discussions. At the “green room” meeting, Mexico, Chinese Taipei, and Thailand among others also supported the need for extending the deadline without indicating any timeframe, said people who asked not to be quoted. The proponents who sought a decision as per paragraph eight of the MC12 Ministerial Decision on the TRIPS Agreement at the “green room” meeting include South Africa, India, Nigeria, Bangladesh, Argentina, and Sri Lanka among others. CO-SPONSORS CIRCULATE A DRAFT DECISION Several developing countries – Argentina, Bangladesh, Bolivia, Egypt, India, Pakistan, South Africa, and Venezuela – on behalf of the original co-sponsors of document IP/C/W/669/Rev.1, issued a draft decision after the “green room” meeting. The draft decision, contained in document IP/C/W/694 of 6 December, stated unambiguously that the Ministerial Decision on the TRIPS Agreement adopted on 17 June 2022 is “far removed from the comprehensive TRIPS waiver proposal contained in documents IP/C/W/669 and IP/C/W/669/Rev.1 (“original TRIPS waiver proposal”) co-sponsored by 65 WTO members (co-sponsors).” The co-sponsors stated that “a more comprehensive waiver decision as envisaged in the original TRIPS waiver proposal would support the efforts to ensure timely, equitable and universal access to safe, affordable and effective therapeutics and diagnostics, ramping up of production and expanding supply options.” They argued that the “MC12 Ministerial Decision on the TRIPS Agreement (document WT/MIN (22)/30) is the result of over one and a half years of arduous and lengthy discussions on the original TRIPS waiver proposal and intense negotiations heading towards the 12th Ministerial Conference in the midst of a global crisis” and “it is of limited scope covering only vaccines.” More importantly, they said, “diagnostics and therapeutics are essential tools for a comprehensive approach to fight the pandemic, that it is not over.” Against this backdrop, “omitting these vital tools will deter the effectiveness of the decision that aims [at] timely and affordable access to effective vaccines against the ongoing COVID-19 pandemic,” the co-sponsors said. “At a minimum,” the co-sponsors emphasized, “the extension of the policy tools provided in document WT/MIN/(22)/30 to therapeutics and diagnostics will result in a holistic approach to enable developing countries to address those IP (intellectual property) barriers that prevent the expansion and diversification of production and increase accessibility to crucial life-saving COVID-19 tools.” Further, “the current outcome represents a narrow-conditioned Decision due to demands of some WTO members, requiring significant compromises on the part of the co-sponsors that had hoped for greater solidarity among WTO members during a public health emergency and consequently a more comprehensive waiver decision as envisaged in the original TRIPS waiver proposal that would support ramping up of production and expanding supply options.” The co-sponsors called on the General Council, which is scheduled to meet on 19 December, “to immediately extend the 17 June TRIPS Decision adopted by the Ministers by consensus after long protracted negotiations, mutatis mutandis to therapeutics and diagnostics.” “WTO Members have an opportunity to show they can act promptly to respond to the ongoing COVID-19 pandemic and the challenge of inequitable access to therapeutics and diagnostics and respond to the criticism that the Decision on vaccines came too little too late,” they said. The co-sponsors submitted a “Decision Text” for the General Council to adopt on 19 December. The Decision Text is as follows: “General Council Decision on Extension of the 17 June 2022 Ministerial Decision to COVID-19 Therapeutics and Diagnostics (hereafter referred to as “Therapeutics and Diagnostics Decision”) The General Council Having regard to the 17 June 2022 Ministerial Decision on the TRIPS Agreement, document WT/MI(22)/30 Decides as follows: The MC 12 Decision on the TRIPS Agreement is extended mutatis mutandis for the production and supply of COVID-19 therapeutics and diagnostics. An eligible Member may apply the provisions of this Therapeutics and Diagnostics Decision until 5 years from the date of this Decision. Any extension of the MC 12 Decision on the TRIPS Agreement pursuant to paragraph 6 shall apply to this Decision as well.” INFORMAL TRIPS COUNCIL MEETING At the informal TRIPS Council meeting on 6 December, several industrialized countries echoed the same positions as they did at the “green room” meeting, said people who asked not to be quoted. The US informed members at the informal TRIPS Council meeting that it will support an extension of the original 17 December deadline. It said that in this additional time, the US International Trade Commission will launch an investigation to help understand these complex issues, getting more input from partners and report their findings to the USTR. The EU said that it is open to advancing the discussions by addressing issues raised during the discussions on the definition of COVID-19 therapeutics and diagnostics. The EU said a paper issued by Chinese Taipei before the meeting could serve a useful purpose. The United Kingdom said that the mandate of the Council is to decide if the extension is required to guarantee equitable access, being conscious of the significant risks of undermining the integrity of the IP framework and the potential consequences for members’ ability to tackle health emergencies, both now and in the future. The UK also welcomed the paper by Chinese Taipei as a useful contribution to an evidence-based discussion. China apparently said that considering the divergent views expressed by members and the limited time left before 17 December, the extension of the deadline with a clearer way forward is the most pragmatic solution. It also signalled flexibility to consider the length of the extension. India said members made strenuous efforts to achieve paragraph eight of the Ministerial Decision, which provided a clear deadline for members to decide on the extension of the Decision to therapeutics and diagnostics. In this context, said India, the proposed General Council Decision provides members with the opportunity to explicitly state whether they agree to the extension of the Decision to therapeutics and diagnostics or whether they do not agree to its extension. Tanzania, on behalf of the African Group, said that diagnostics and therapeutics are central in saving lives, as vaccination alone reduces the risk of mortality but does not in any way prevent transmissions or infections. In its intervention, Sri Lanka said that after evaluating the options available, it wants to show flexibility on the extension. Sri Lanka apparently said if members are planning to go on that path (of extending discussions), it should be with the aim of giving ample time for all members to incorporate more evidence-based information after concluding the ongoing domestic consultations in order to reach a meaningful decision. Sri Lanka urged members not to drag the discussions on the extension forever without taking a meaningful decision based on the mandate given by ministers at MC12. The chair of the TRIPS Council, Ambassador Lansana Gberie of Sierra Leone, has scheduled a meeting for 15 December, as the deadline expires on 17 December. In short, the WTO appears to have failed to adhere to paragraph eight of the MC12 Ministerial Decision, casting doubts on whether the US and other major industrialized countries will ever agree to extending the TRIPS Ministerial Decision to diagnostics and therapeutics, said people after the meeting. +
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