Technical Note : The LDC TRIPS Transition Extension and the Question of Rollback

When the WTO TRIPS Agreement entered into force on January 1, 1995, least developed countries (LDCs) were given until January 1, 2006 to bring their legislation into conformity with the agreement (subject to compliance with national treatment and most favored nation (MFN) treatment obligations). Pursuant to Article 66.1, upon presentation of a duly motivated request, the TRIPS Council is obligated to provide extensions of the transition period “In view of the special needs and requirements of least-developed country Members, their economic, financial and administrative constraints, and their need for flexibility to create a viable technological base.” The first LDC extension was granted in 2002 further to Paragraph 7 of the Doha Declaration on the TRIPS Agreement and Public Health in respect to pharmaceutical patents and regulatory data requirements, and included authority to disapply existing protections. That public health-related extension expires on January 1, 2016. A general extension of the LDC transition was adopted by the TRIPS Council in 2005, and is set to expire on July 1, 2013. The 2005 extension included a clause that has become known as the “no-rollback” provision, providing that “Least-developed country Members will ensure that any changes in their laws, regulations and practice made during the additional transitional period do not result in a lesser degree of consistency with the provisions of the TRIPS Agreement”. LDCs have presented a request for an additional extension of the transition arrangement. In this context, they have objected to the inclusion of a “no-rollback” clause. This paper examines whether the WTO TRIPS Council has the authority to establish a no-rollback requirement as a condition of further LDC transition extensions. It considers the terms of the TRIPS Agreement, the negotiating history of the transition arrangements, other WTO Agreement language regarding waivers, ambiguity of terms, prospective options should there not be an agreement, and policies underlying the LDC request and certain objections. This paper was presented and discussed at a meeting organized by ICTSD at the WTO on May 24, 2013