The TRIPS Waiver Compromise Draft: A promising or compromising text?

The TRIPS Waiver Compromise Draft: A promising or compromising text?

After nearly 18 months of negotiations, there has finally been some progress with regard to the request to waive certain provisions of the TRIPS Agreement in response to the COVID-19 pandemic. It was in October 2020, during the meeting of the WTO’s TRIPS Council, that India and South Africa initially tabled this waiver request. A revised proposal was subsequently submitted in May 2021.

Following intensive quadrilateral negotiations between South Africa, India, the United States and the European Union on 15 March 2022, a compromise agreement was tentatively reached that will now be presented to other WTO members for their consideration and possible adoption.[1] It will be interesting to see what benefits this is going to reap, as some have argued that there is likely to be little practical impact from any waiver of IP rights.[2]

The compromise draft text has drawn criticism from both those who support and oppose the waiver request.[3] The proponents of the waiver request find the compromise draft text disappointing. They argue that it is a very limited and narrow agreement. It only covers vaccines, and it limits “eligible members” to developing countries.[4] On the other hand, opponents of the waiver maintain the view that the compromise draft is a solution in search of a problem.[5] However, it remains to be seen if this compromise draft text would constitute the basis of any final waiver that may be adopted by the TRIPS Council.

Essentially, the May 2021 revised proposal sought a waiver of TRIPS obligations relating to the application and enforcement of copyright, patent rights, industrial designs, and the protection of undisclosed information.[6] These obligations were to be waived ‘in relation to health products and technologies including diagnostics, therapeutics, vaccines, medical devices, personal protective equipment, their materials or components, and their methods and means of manufacture for the prevention, treatment or containment of COVID-19.’ According to the revised proposal, the waiver should be in place for at least 3 years.[7]

However, the provisions of the compromise draft text are far from the demands contained in the revised waiver proposal. According to Oke, one could convincingly argue that the text is probably closer to the positions of both the EU and the US in this regard.[8] The compromise text merely provides some concessions regarding the rules governing compulsory licensing contained in Article 31 of the TRIPS Agreement, and its scope is limited to the production and supply of COVID-19 vaccines for now at least. This is basically in line with the position of the EU and the US on the waiver request. Although initially opposed to the waiver request, the US eventually expressed its support for the waiver proposal in May 2021. This support was, however, strictly limited to the production of vaccines.[9] In June 2021, the EU subsequently tabled its own counterproposal at the TRIPS Council, which essentially revolved around clarifying the rules relating to compulsory licensing in Articles 31 and 31bis of the TRIPS Agreement.[10] Nevertheless, when compared with the permanent waiver codified in Article 31bis of the Agreement, one could say that the provisions of the compromise draft text are not as cumbersome and complex as the provisions contained in Article 31bis.[11]

The aspects of the draft text that may be considered as gains for proponents of the waiver request include paragraph 2 of the text which allows that :

“…an eligible Member may authorize the use of patented subject matter under Article 31 without the right holder’s consent through any instrument available in the law of the Member such as executive orders, emergency decrees, government use authorizations, and judicial or administrative orders, whether or not a Member has a compulsory license regime in place…”

According to the text, the ” law of a Member” referred to in Article 31 is not limited to legislative acts such as those laying down rules on compulsory licensing. It also includes other acts, such as executive orders, emergency decrees, and judicial or administrative orders.[12]

Although the scope of the compromise text is currently limited to the production of vaccines, Oke argues that paragraph 3(c) of the compromise text is an implied admission of the practical difficulties associated with the use of Article 31bis of the TRIPS Agreement. [13] Paragraph 3(c)  is a crucial departure from the strictures codified in Article 31bis, which was, ironically, originally intended to address the problems associated with Article 31(f), especially for countries with no or insufficient domestic manufacturing capacity.[14] It permits an eligible member to ‘waive the requirement of Article 31(f) that authorised use under Article 31 be predominantly to supply its domestic market’. Paragraph 3(c) further provides that an eligible member ‘may allow any proportion of the authorised use to be exported to eligible Members and to supply international or regional joint initiatives that aim to ensure the equitable access of eligible Members to the COVID-19 vaccine covered by the authorisation.’[15]

Paragraph 6 addresses the question regarding the duration of the compromise waiver. However, as can be read from the text, there is no consensus in this regard. The text refers to both 3 and 5 years. “An eligible Member may apply the provisions of this Decision until [3][5] years from the date of this Decision…”. Could this be a suggestion that the waiver could be in force for at least 3 years? It is certainly effective to clarify this in the text of the compromise waiver. Paragraph 6 goes on to state that ‘the General Council may extend such a period taking into consideration the exceptional circumstances of the COVID-19 pandemic. The General Council also has authority to review annually the operation of this Decision’.[16]

Before outlining some of the gains from the outcome of the quadrilateral negotiations, I highlighted some of the reasons why the proponents of the waiver are disappointed with the draft compromise text. First of all, the compromise text only covers the compulsory licensing of patents. This is not satisfactory as the waiver proposal requests for the waiver of obligations relating to copyright, patents, industrial designs, and the protection of undisclosed information. The scope of the compromise text is also limited to the production and supply of COVID-19 vaccines.

As indicated above, the definition of an ‘eligible Member’ in the compromise waiver text is another area of concern. The compromise waiver text defines, in a footnote, an ‘eligible Member’ as ‘any developing country Member that exported less than 10 % of world exports of COVID-19 vaccine doses in 2021.’[17] As noted by Oke, “this automatically excludes developed countries from the scope of the compromise waiver. It further narrows down the number of developing countries that can effectively use the waiver to export vaccines to other developing countries”.[18] This limited scope is likely to face more challenges as the compromise agreement is presented to other WTO members.

Having said the above, one may question the use of negotiations that are open to only four WTO members to deal with an issue that is affecting the entire international community?  I guess the answer will lie in the reaction of the other WTO members to the compromise waiver text as it is presented. At this point, whether or not the compromise waiver text would also constitute the basis of any final waiver decision is still subject to debate. As has been said elsewhere, it will be up to the remaining WTO members to decide whether this is a promising or a compromising text.

 

[1] E.K Oke, “The TRIPS Waiver Compromise Draft Text: A Preliminary Assessment” 18 March 2022 [Accessed 30 March 2022] Available online at: https://www.afronomicslaw.org/category/analysis/trips-waiver-compromise-draft-text-preliminary-assessment.

[2] G. Quinn, “COVID IP Waiver Attempts are Becoming Harder to Justify” [accessed 30 March 2022] Available online at https://www.ipwatchdog.com/2021/10/20/covid-ip-waiver-attempts-becoming-harder-justify/id=138993/.

[3] E. MacDermott, “Latest WTO Waiver Compromise Text Targets COVID Vaccine Patents, Draws Criticism from Both Sides” [Accessed 30 March 2022] Available online at https://www.ipwatchdog.com/2022/03/16/latest-wto-waiver-compromise-text-targets-covid-vaccine-patents-draws-criticism-sides/id=147576/.

[4] J. Love, “QUAD’s tentative agreement on TRIPS and COVID 19” [Accessed 30 March 2022] Available online at https://www.keionline.org/37544.

[5] E.K Oke, “The TRIPS Waiver Compromise Draft Text: A Preliminary Assessment” 18 March 2022  [Accessed 30 March 2022].

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9]Statement from Ambassador Katherine Tai on the Covid-19 Trips Waiver: https://ustr.gov/about-us/policy-offices/press-office/press-releases/2021/may/statement-ambassador-katherine-tai-covid-19-trips-waiver.

[10] E.K Oke, “The TRIPS Waiver Compromise Draft Text: A Preliminary Assessment” 18 March 2022 [Accessed 30 March 2022].

[11] Ibid.

[12] TRIPS COVID-19 solution (the outcome of the quadrilateral discussions at the end of last week, to be presented to WTO Members).

[13] E.K Oke, “The TRIPS Waiver Compromise Draft Text: A Preliminary Assessment” 18 March 2022 [Accessed 30 March 2022].

[14] Ibid. See also TRIPS COVID-19 solution (the outcome of the quadrilateral discussions at the end of last week, to be presented to WTO Members).

[15] TRIPS COVID-19 solution (the outcome of the quadrilateral discussions at the end of last week, to be presented to WTO Members). para 3(c).

[16] TRIPS COVID-19 solution (the outcome of the quadrilateral discussions at the end of last week, to be presented to WTO Members). para 6.

[17] TRIPS COVID-19 solution (the outcome of the quadrilateral discussions at the end of last week, to be presented to WTO Members). Footnote 1.

[18] E.K Oke, “The TRIPS Waiver Compromise Draft Text: A Preliminary Assessment” 18 March 2022 [Accessed 30 March 2022].

South Africa on Regional Integration and Trade in the Era of COVID-19: Localisation vs regional value chains

South Africa on Regional Integration and Trade in the Era of COVID-19: Localisation vs regional value chains

Thabelo Muleya

The Covid-19 pandemic has been the most fundamental disruption to economic activity in a century, introducing huge challenges for the South African economy, regional value chains, and global trade. How is this affecting regional integration? To understand this, we first need to analyse the different types of trade and economic policy responses to Covid-19 and how they relate to regional integration. A good starting point is the 2021 State of the Nation Address (SONA) by President Ramaphosa, followed by the Budget speech delivered by Minister of Finance, Tito Mboweni.

Whereas commitments towards regional and continental trade can be found in the SONA, the general sentiment is that South Africa, just like most other economies affected by the pandemic, is looking to grow local production and encourage the localising of value chains. South Africa is not alone. In a growing protectionist climate, most SADC Member States appear to be acting in a manner that prioritises national interests over regional cooperation.  This has culminated in the debate about whether national economic policies should focus on creating local productive capacity or facilitate the building of regional value chains that remain linked to global trade. According to a study by the OECD, localising value chains in the post-Covid-19 world would add to the economic losses and make domestic economies more vulnerable.[1] This is not stopping countries from resorting to higher levels of protectionism and the emergence of economic nationalism.

President Ramaphosa reiterated that the African Continental Free Trade African (AfCFTA) provides a platform for the South African businesses to expand into markets across the continent, and for South Africa to position itself as a gateway to the continent. On the same note, Minister Mboweni, emphasised the government’s plans to improve access to African markets. This shall be done by upgrading and expanding South Africa’s six busiest border posts; starting with Beitbridge, which was last upgraded in 1995.  Ideally, these One-Stop-Border-Posts will harmonise the crossing of borders by people and goods, eliminating the dreadful scenes witnessed during the pandemic. There will be significant infrastructure interventions using a public-private partnership (PPP) model.

On the other hand, while acknowledging the opportunities for regional trade and growing regional value chains as presented by the AfCFTA, the SONA stressed the priority of localisation policies, as embodied in industry masterplans. The pandemic has left policymakers wondering whether more localised production of key goods would provide greater security against disruptions that can lead to shortages in supply and uncertainty for consumers and businesses[2]. However, even with the support and protection offered to domestic producers under a localised regime, not all stages of production can be undertaken in one country, and trade in intermediate inputs and raw materials continues to play an important role in domestic production. In this context, less international diversification of sourcing and sales means that domestic markets are required to shoulder more of the adjustments and to absorb shocks.

One of the priority intervention proposals of the Post Covid-19 Economic Reconstruction and Recovery Plan is to support a massive increase in local production and to make South African exports globally competitive. Key to this plan is a renewed commitment from the government, business, and organised labour to buy local. Increased local production will hopefully lead to the revival of the manufacturing industry and encourage greater investment by the private sector in productive activity. All social partners who participated in the development of the Recovery Plan as part of a social compact have agreed to work together to reduce the country’s reliance on imports by 20{fdf3cafe0d26d25ff546352608293cec7d1360ce65c0adf923ba6cf47b1798e1} over the next five years.

The above is a clear indication of the hard policy choices caused by the pandemic, which can be read from the SONA and the budget speech. While local value chains could look like the answer, the OECD study suggests that increased localisation could do more harm than good and that the international network of interconnected supply chains remains key to producing essential goods and services. Global and regional value chains organise the cross-border design, production, and distribution processes, creating much of what we purchase and consume every day.

What does that mean for SACU[3], SADC, and the continent? In his recent presentation to the Portfolio Committee on Trade and Industry, Minister Patel reported that over three-quarters of intra-African trade takes place within regional trading blocs. In 2019, around 26{fdf3cafe0d26d25ff546352608293cec7d1360ce65c0adf923ba6cf47b1798e1} of South Africa’s global exports were destined for the rest of Africa, with 80{fdf3cafe0d26d25ff546352608293cec7d1360ce65c0adf923ba6cf47b1798e1} of those exports going to SADC countries. The country should therefore use the opportunities created by the AfCFTA to expand trade beyond SADC to East, Central, West, and North Africa.[4] Strategically incorporated into national trade policies, the AfCFTA can unlock the region, grow regional value chains needed for resilient economies.

[1] https://voxeu.org/article/localising-value-chains-after-covid-would-add-economic-losses-and-make-domestic-economies-more-vulnerable

[2] Javorcik, B (2020), “Global supply chains will not be the same in the post-COVID-19 world”, in Balwin, R and S Evenett (eds) COVID-19 and Trade Policy: Why Turning Inward Won’t Work, VoxEU.org eBook, CEPR.

[3] Payments to SACU have been revised upwards by R1.9 billion in 2022/23 and R15.5 billion in 2023/24 to R137.3 billion over the medium term.

[4] DTIC, “Update on African Integration and the AfCFTA: Minister’s Presentation to the Portfolio Committee on Trade and Industry”, 16 March 2021.

Digital Transformation and Women’s Participation in Trade

Digital Transformation and Women’s Participation in Trade

Author: Thabelo Muleya

As digitalisation helps in reducing the costs of participating in trade, it is also be opening new opportunities for women to participate in trade. Digital transformation can serve as a tool for inclusive trade-led industrialisation. However, research from the Organisation for Economic Co-operation and Development (OECD) shows that despite statistics indicating that more women than men are tertiary graduates,  a close analysis of the  skills in demand in this digital transformation, show that women are still unfairly underrepresented.[1]

Recognising both the opportunities that digitalisation is providing for the economic empowerment of women, and the challenges of ensuring that the benefits of the digital transformation are being equitably shared by all, national governments are making efforts, and international initiatives such as ITC’s SheTrades are bringing energy to the goal of achieving gender equality. This is where we see the work of President Cyril Ramaphosa’s 4IR Commission, established in 2019 to assist the government in taking advantage of the opportunities presented by the digital industrial revolution.

The Commission has set eight preliminary recommendations to achieve this – several of which are pertinent to women’s empowerment. The first recommendation calls for government to invest in human capacity development, primarily focusing on women. The fifth recommendation is to incentivise 4IR industries should include tax breaks, assistance with research and development support and a particular focus on women as well as SMMEs. The Commission also recommends building a 4IR infrastructure which integrates with existing economic and social infrastructure. Fast and reliable internet connection is crucial to ensure that all, especially women, have a fair chance of fully participating in the digital economy. The seventh recommendation is to review, amend or create policy and legislation in line with the 4IR. These new laws should reduce the barriers for entry into the digital economy by women.

Implementation of these rather broad strategies still needs to ensure that women are well situated to participate in the digital transformation and to shape it.  There is, however, progress towards achieving this as we see prominent women in South Africa, including Zanele Mbeki, Precious Motsepe and Phumzile Mlambo Ngcuka, to name a few, actively involved in the International Women’s Forum South Africa (IWFSA). We are likely to see more women participating, through digital platforms, in trade as the African Union has also taken an initiative to advance the gains of digital transformation. With the Covid-19 pandemic pushing the whole world into the digital economy, the AU finally made public the ‘Digital Strategy for Africa on 18 May 2020.  Good news for women entrepreneurs!!

The International Trade Centre (ITC) has launched the SheTrades initiative, which seeks to connect three million women entrepreneurs to the market by 2021. As the ITC puts it, we believe women’s economic empowerment is not a matter for government policy, the private sector, or social change alone. All have critical roles to play. The SheTrades initiative tracks how and what policies enable women to participate and succeed in business and international trade.

As registered members of SheTrades, women can get benefits such as access to the SheTrades virtual learning. Users can participate in group activities, courses, and resources, on an on-demand basis. Through the platform, African women can also connect with other businesses from as far afield as Europe.  Buyers, sellers, and verifiers can connect and trade through the platform. SheTrades’ offer and source products and services promoting inclusion within regional and global supply chains and helping women do business. The platform has a Tenders portal where buyers can post sourcing opportunities for women-owned businesses.

While addressing ingrained stereotypes and social norms that lead to discrimination and even violence against women, the focus needs to be also on putting in place concrete policy actions supporting women’ full participation and inclusion in the digital economy. Policy has a crucial role to play to close the digital gender divide and ensure women are not only involved in digital transformation, but also to ensure their full participation in trade.

[1]OECD. 2018., Empowering women in the digital age: WHERE DO WE STAND?