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Info Service on WTO and Trade Issues (Dec22/14) Geneva, 19 Dec (D. Ravi Kanth) — The TRIPS Council has recommended that the General Council extend the 17 December deadline on paragraph eight of the World Trade Organization’s 12th ministerial conference (MC12) Ministerial Decision on the TRIPS Agreement concerning the extension of the Decision to cover the “production and supply of COVID-19 diagnostics and therapeutics,” rejecting an earlier draft report prepared by the chair of the TRIPS Council, diluting the mandate in paragraph eight. During an informal/formal meeting of the WTO’s TRIPS Council on 16 December, the United States agreed to write language on extending the deadline set out in paragraph eight, said people, who asked not to be quoted. Earlier (on 15 December), the US had maintained that the extension of the deadline is only that “discussions in the TRIPS Council will continue and will be reported to the General Council no later than 30 June 2023.” However, on 16 December, the US drafted a so-called compromise decision that states; “In view of paragraph 8 of the Ministerial Decision on the TRIPS Agreement adopted on 17 June 2022 (the “Decision”) providing that no later than 6 months from the date of this Decision members will decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics, the TRIPS Council recommends that the General Council extend the deadline.” Many developing countries, particularly the key members among the 65 co-sponsors of the original TRIPS waiver proposal, agreed to the reiteration of paragraph eight of the Ministerial Decision on the TRIPS Agreement and its extension, said people, who asked not to be identified. However, Switzerland and the United Kingdom were reluctant to agree to the US compromise text, saying that it is not clear whether the General Council, which is meeting on 19 December, can agree to adopt the decision or whether it is proper to place the decision before the next General Council meeting in 2023. At this point of the meeting of heads of delegation on 16 December, the WTO Secretariat apparently intervened to say that the decision can be adopted at the General Council meeting on 19 December, said people, who asked not to be quoted. In the face of the growing consensus around the US compromise proposal, Switzerland and the UK apparently reluctantly agreed to join the consensus, said people, who asked not to be quoted. TRIPS COUNCIL CHAIR’S “DUBIOUS” ROLE The chair of the TRIPS Council, Ambassador Lansana Gberie of Sierra Leone, was apparently forced to retreat from his position on ruling out conducting any meeting on 16 December unless members agreed to his proposal. Ambassador Gberie also threatened that he will not hold any meeting on 16 December due to “logistical” reasons and that he will not send any report to the General Council, said people, who preferred not to be identified. However, he was forced to retreat from his earlier position due to sharp criticisms by Sri Lanka that the WTO seems to be able to provide space for meetings of the non-mandated Joint Statement Initiative (JSI) groups but not for the TRIPS Council, said people familiar with the development. Finally, the chair held an informal meeting in the morning and a formal meeting of heads of delegation in the afternoon of 16 December, said people, who asked not to be identified. The chair also had to allegedly face criticism as his textual proposal made on 15 December was rejected and accepted the new compromise text that radically differed from his proposal. To recall the developments on 15 December, Ambassador Gberie proposed a draft text (JOB/IP/65/Rev.1), as follows:
The chair maintained that his draft revised report is to be adopted “as the Council’s report to the General Council scheduled for 19-20 December 2022.” As reported in SUNS #9712 dated 16 December 2022, a large majority of developing and least-developed countries rejected the chair’s revised draft at the meeting on 15 December. On 16 December, the chair seems to have been slighted by the compromise proposal, said a participant, who asked not to be quoted. Significantly, the US compromise proposal seems to be based on the US Trade Representative (USTR) Ambassador Katherine Tai’s letter to the US International Trade Commission (USITC). In her letter to the USITC on 15 December, Ambassador Tai wrote: “In June 2022, Members of the World Trade Organization (WTO) agreed to provide further flexibilities with respect to COVID-19 vaccines, as well as to consider extending those flexibilities to diagnostics and therapeutics. USTR has consulted with Congress and a wide range of stakeholders on the question of extending those flexibilities. The positions are divergent, even on basic questions around whether there is adequate global supply of diagnostics and therapeutics. These interested parties also diverge on whether extending these flexibilities to diagnostics and therapeutics would in fact improve access, particularly in non-high-income countries, or undermine innovation.” The press release issued by the Office of the USTR on 16 December said: “The USITC investigation would provide information on market dynamics as World Trade Organization (WTO) Members consider whether to extend the June 17, 2022 Ministerial Decision on the TRIPS Agreement to COVID-19 diagnostics and therapeutics. In her request to the USITC, Ambassador Tai emphasized the longstanding concern over inequitable global access to medicines and therapeutics. Ambassador Tai also recognizes the need for transparency so that interested parties have a common set of facts and views to consider.” FORMAL TRIPS COUNCIL MEETING During the day-long informal meeting on 16 December, which was later turned into a formal meeting of heads of delegation around 3.00 pm, the USTR’s statement became the basis for extending the deadline, said several participants, who asked not to be quoted. The proposed US draft at the suddenly-convened heads of delegation meeting by the chair of the TRIPS Council reads: “In view of paragraph 8 of the Ministerial Decision on the TRIPS Agreement adopted on 17 June 2022 (the “Decision”) providing that no later than 6 months from the date of this Decision members will decide on its extension to cover the production and supply of COVID-19 diagnostics and therapeutics, the TRIPS Council recommends that the General Council extend the deadline.” It remains to be seen how members will assess the US compromise proposal at the General Council meeting on 19-20 December, said several participants, who asked not to be quoted. WHO HIGHLIGHTS INEQUITY IN ACCESS TO DIAGNOSTICS & THERAPEUTICS On 16 December, as the TRIPS Council chair and developed countries engaged in delaying tactics, Dr. Tedros Adhanom Ghebreyesus, the WHO Director-General, in his opening remarks at the WHO, WIPO, WTO Joint Technical Symposium on the COVID-19 Pandemic on the same day, expressed hope that WTO Member States will soon reach an agreement on the extension of the TRIPS waiver for diagnostics and therapeutics. He stressed that “we have come a long way in bringing the pandemic under control, and we are in a much better position. But the pandemic is still not over” and that “Ten thousand people are dying from this virus every week”. “Despite all the gains we have made in the past three years, severe global inequities still hamper the response”, he added. He reinforced that “Access to diagnostics and life-saving treatments for COVID-19 remains unacceptably unaffordable and unequal”, and that “the burden of post-COVID-19 condition is only likely to increase”. He highlighted “local production” as the “key to bringing this pandemic to an end, and for strengthening preparedness for future emergencies”. “This pandemic has been a visceral demonstration of how health directly impacts societies and economies. Simply put, we cannot afford not to work together”, he added. He urged Member States to implement all the available tools they have to make local production possible and improve access including the use of TRIPS flexibilities, and implementation of the recent WTO TRIPS decision. WHO will continue providing technical assistance on how to make use of these instruments, he emphasized. Despite the central role of WHO in recommending measures to address COVID-19 pandemic, developed countries rejected insertion into the draft report text suggested by developing and LDC members to “acknowledge the leading role of WHO in coordinating the global response in the fight against COVID-19, and therefore the WTO will benefit from the WHO’s expertise and advice with regard to the global state of therapeutics and diagnostics”. +
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