On Tuesday, 9 November 2021 the European Parliament’s Committee on International Trade (INTA) convened an extraordinary meeting from 9:00 to 12:00. INTA adopted resolution on Multilateral negotiations in view of the 12th WTO Ministerial Conference in Geneva, 30 November to 3 December 2021. The co-rapporteurs for this resolution include Bernd Lange (S&D) and Sven Simon (PPE). After its adoption by INTA, the resolution will be submitted to the European Parliament for adoption.
The resolution:
calls for the establishment of a new permanent Committee on Trade and Health at MC12 in order to assist governments with implementing existing exceptions and flexibilities in international trade law and to lay the groundwork for a trade pillar for the negotiations on a future international treaty on pandemic response; believes that many, especially developing, countries face difficulties in the use of TRIPS flexibilities, notably art. 31 bis; recalls that the EU should actively participate in text based negotiations on a temporary TRIPS waiver;
In relation to the reform of the WTO Appellate Body, the resolution stated:
Deeply regrets the stalemate at the WTO Appellate Body, which is depriving the global trading system of an enforceable dispute settlement system; warns that without a functioning Appellate Body the WTO is toothless and the tendency to breach multilateral agreements will only increase; notes that currently more than 15 cases are notified for appeal without the possibility to be reviewed; strongly urges all WTO Members to fully engage and work on solutions to restore a fully functioning two-tiered dispute settlement system with a fully functioning and independent Appellate Body as swiftly as possible; strongly supports recent EU initiatives to conclude arrangements with our major trade partners that preserve, on an interim basis, a functioning dispute settlement process among those WTO Members who participate; recalls that a binding, two-tier and independent process should remain the core objective of the EU’s strategy;
In the afternoon, INTA convened a panel discussion on EU Trade Policy in a changing world from 13:45 to 15:45 CET. KEI’s Arianna Schouten participated in this panel discussion. INTA’s program description noted:
DG Trade’s Director-General Sabine Weyand and WTO Deputy Director-General Jean-Marie Paugam will discuss challenges for trade in a time of economic transformation and geopolitical instability. This will be followed by a panel discussion on how to prepare for a sustainable recovery, touching upon issues of supply chain constraints or challenges linked to the pandemic, with Prof. Joost Pauwelyn, Graduate Institute Geneva, Arianna Schouten from Knowledge Ecology International (KEI) and Eleonora Catella, BusinessEurope.
Arianna Schouten delivered the following intervention on behalf of KEI.
Knowledge Ecology International is a not for profit NGO that searches for better outcomes to the management of knowledge resources. KEI has particular expertise in issues relating to intellectual property rights, technology transfer and access to knowledge goods, amongst others.
TRIPS Waiver
One action the EU could take as an equitable solution at present is act in support of the TRIPS waiver for the prevention, containment and treatment of COVID-19. The waiver would only suspend obligations to abide by the WTO TRIPS rules and be limited to one virus for a specified period of time.
Without prejudice to other relevant and important provisions in the waiver, certain essential provisions are the unconditional waiving articles 31(f) and 39, in addition to not being limited to a specific set of countermeasures (e.g., vaccines). Article 31(f) limits compulsory licensing to uses which are predominantly for the supply of the domestic market. This provision effectively operates as an export restriction, limiting export to less than 50% of what could be produced nationally.
Article 39 relates to manufacturing know-how and regulatory data. The unconditional waiver of article 39 would allow governments flexibility in sharing know-how and data to scale manufacturing, additionally, it would remove any uncertainty surrounding the enforcement of data exclusivity.
Another action EU member states could take immediately is, provide additional resources to C-TAP, much like Spain, who just contributed 1 million euros to C-TAP.
Pandemic Treaty
Looking towards the future, we welcome the EU’s support of a Pandemic Treaty. In order to have a sustainable, equitable outcome, the pandemic treaty should support new global norms to address equity, strengthen health systems and their resilience to support the development and access to medical and health countermeasures as public goods. The provisions of the treaty should be based on transparency, equity, solidarity, and international cooperation. I’ll briefly discuss certain normative aspects of how the proposed Treaty should regulate sharing of IP, know-how and medical technology.
The pandemic treaty should create global norms to ensure and enhance pre-pandemic and crises related funding for R&D and the management of R&D funding. This would not be a global fund but would allow members to meet the R&D funding norms through a variety of arrangements, such as through their national R&D programs, global initiatives or other commitments.
The pandemic treaty should also establish norms on conditions and for binding licensing provisions when there is government funded R&D. For example, through open access or open licensing with incentives to share. This is important since exclusivity does not allow for scalable manufacturing to tackle a crisis of pandemic proportions, and any delay costs lives.
Technology transfer should become the norm during the pandemic and not an exception. This could be implemented in the form of obligations for states to condition R&D contracts on technology transfer, or, when not involving private financing to, for example, to engage with technology transfer through mandates or incentives.
On intellectual property rights and knowledge, the pandemic treaty should mandate sharing of rights in inventions, data, and access to know-how and biologic resources since experience throughout the pandemic has shown that voluntary measures are currently insufficient (e.g., C-TAP). Other aspects the treaty could include are triggers for compulsory measures, commitments from governments not to enforce intellectual property relevant to pandemic countermeasures during a crisis.
On regulatory standards and procedures, the pandemic treaty should address some of the key challenges around clear reporting, inconsistent approval standards of emergency use provisions (which had an impact on vaccine hesitancy), and the triggering of sharing of confidential information, in particular the test data needed for regulatory approvals.
The pandemic treaty should have an ambitious section on transparency addressing a wide variety of transparency goals or standards. These provisions could touch upon R&D costs, supplier or manufacturing capacity, information on pathogens, clinical trial designs, and prices paid by procurement bodies, amongst other items of relevance to a global and equitable pandemic response.
The overall structure of the pandemic treaty should be dynamic and building over time. The treaty would have multiple levels of harmonization, with compulsory provisions, opt-in provisions, and soft norms.
Overall, the sustainable and equitable solution for this pandemic and potential future pandemics, cannot rest solely on voluntary measures or generosity through donations. A new model, such as a pandemic treaty is needed to recover and avoid the ongoing injustice of this pandemic in any future pandemics.