[The IPKat] [Guest post] The TRIPS non-violation moratorium has expired: What happened in Yaoundé, and what comes next

[Eleonora Rosati]

[Guest post] The TRIPS non-violation moratorium has expired: What happened in Yaoundé, and what comes next

 Eleonora Rosati Sunday, April 05, 2026 - 14th Ministerial Conference, Daniel J. Gervais, Guest post, non-violation and situation complaints, TRIPS, WTO

The IPKat is happy to host the guest post below by Daniel J. Gervais (Vanderbilt University), detailing and reflecting on the recently concluded 14th Ministerial Conference of the World Trade Organization (WTO). Here’s what he writes:

The TRIPS non-violation moratorium has expired: What happened in Yaoundé, and what comes next

by Daniel J. Gervais

Yaoundé

When the World Trade Organization’s 14th Ministerial Conference closed in Yaoundé, Cameroon on 30 March 2026, it left behind a number of unresolved issues. Most of the global commentary focused on the collapse of the e-commerce moratorium on customs duties for digital transmissions. But a quieter, less-publicized expiry deserves its own reckoning: the moratorium on non-violation and situation complaints (NVSCs) under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) has also lapsed. After more than two decades of successive extensions, WTO Members did not renew it, and the implications for the global IP system are real, if nuanced.

What are non-violation and situation complaints?

To understand what has changed, a brief detour into WTO dispute settlement law is necessary. Under the WTO’s dispute settlement rules (derived from Article XXIII of GATT 1994), a Member may challenge another Member’s conduct even when no specific treaty obligation has technically been violated. These “non-violation” complaints (Article XXIII:1(b)) address situations where a measure upsets the negotiated balance of benefits between Members, even if it is formally consistent with the letter of the relevant agreement. A rarer species, the “situation” complaint (Article XXIII:1(c)), covers harms arising from circumstances not caused by any specific measure at all.

NVSCs have a long but sparse history in GATT and WTO practice. Their origins lie in protecting market access concessions from technical circumvention, and the classic case involves a tariff binding effectively nullified by a domestic measure not reasonably anticipated at the time of negotiation. The Appellate Body, in its 1997 report in India – Patents, described their purpose: to protect the balance of concessions struck by Members, with the ultimate goal not of compelling withdrawal of a measure but of achieving a mutually satisfactory adjustment, usually through compensation. It is worth noting, however, that NVSCs are not confined to classic market-access agreements: they apply across the WTO’s covered agreements, including the SPS and TBT agreements, which are regulatory in character. TRIPS itself is not without market-access dimensions — its preamble speaks of reducing distortions and impediments to international trade and ensuring that IP protection does not become a barrier to legitimate trade — and some Members have argued that it can be read as providing a kind of level playing field for foreign and domestic IP holders.

Why TRIPS has always raised distinctive questions

When TRIPS entered into force in 1995, it brought intellectual property law into the WTO framework for the first time as a positive obligation regime. What I and others have called the “TRIPS difference” (D. Gervais, TRIPS Pluralism, World Trade Rev. 1–22 (2021) captures a core structural feature: unlike goods schedules or services commitments, TRIPS does not create tariff bindings or quantitative market access concessions whose competitive erosion could straightforwardly trigger an NVSC. This difference prompted the drafters of TRIPS to include Article 64.2, which prohibited NVSCs for the first five years after the Agreement’s entry into force, and Article 64.3, which instructed the TRIPS Council to examine the “scope and modalities” of their potential application and to make recommendations to the Ministerial Conference.

That five-year period ended on 1 January 2000. No recommendations were made. The examination continued for another quarter-century. In the intervening years, the moratorium was extended at every Ministerial Conference: Doha (2001), Hong Kong (2005), Geneva (2011), Bali (2013), Nairobi (2015), Buenos Aires (2017), and through subsequent General Council decisions. The formula varied little. Ministers would “direct” the TRIPS Council to continue its examination and make recommendations to the next session, and agree that “in the meantime, Members will not initiate such complaints under the TRIPS Agreement.” The moratorium became the most reliably renewed instrument in the WTO system, which made its lapse in Yaoundé all the more striking.

The positions that kept the debate frozen

The TRIPS Council spent more than two decades unable to resolve the underlying question of whether NVSCs should apply to TRIPS at all, and if so, how. Three broad positions defined the debate.

The United States, joined by Switzerland, argued that NVSCs are fully appropriate in the TRIPS context. Their case rests primarily on systemic consistency: Articles 64.2 and 64.3 were drafted on the premise that NVSCs would eventually apply, with the five-year moratorium serving as a transitional breathing space and the Council’s examination as a mechanism for defining modalities, not for reaching a verdict on applicability. On the practical stakes, both delegations have been explicit that measures covered by a TRIPS exception could not be challenged through an NVSC, and both acknowledged that the remedy is one to be “approached with caution,” consistent with guidance from earlier GATT panels. On this view, the threat to TRIPS flexibilities was overstated.

A large group of developing country Members, including the African Group, India, and many others, argued for either a permanent ban or indefinite extension of the moratorium. A 2002 joint submission, later revised and broadened, captured the substantive concern: because TRIPS is not a conventional market access agreement, the expected benefit whose nullification or impairment might ground an NVSC is difficult to identify, which means that the conditions for a successful NVSC could never in practice be fulfilled under TRIPS. On this reading, the point is not merely that NVSCs “shall not” apply as a matter of policy preference, but that they “do not” apply because the treaty conditions cannot be met. A formal decision to that effect would, they argued, remove any residual doubt.

A third group sought agreed modalities that would define the narrow circumstances in which NVSCs might succeed under TRIPS, providing predictability without wholesale exclusion. This idea attracted little support and was eventually shelved.

What happened in Yaoundé

The 14th Ministerial Conference in Yaoundé was always expected to be difficult. The headline failure was the collapse of negotiations over the e-commerce moratorium on customs duties for digital transmissions. The United States sought a permanent extension; Brazil and Turkey blocked it; and that moratorium also lapsed for the first time since 1998. The two issues became entangled in the broader dysfunction of the ministerial, with delegations scrambling across multiple negotiation tracks amid time pressure and geopolitical tension.

The TRIPS NVSC moratorium never received the dedicated high-level attention that might have yielded a result. A draft ministerial decision was among the five instruments consolidated into what the Director-General called the “Yaoundé package,” a set of draft texts that Members agreed to carry back to Geneva as the basis for further negotiations at the next General Council meeting, expected in May 2026. But the draft was not adopted. Because no ministerial decision was taken, the moratorium expired at the end of March 2026 along with the close of the conference.

What this means legally

The legal situation that now exists is genuinely novel. For the first time since 1 January 1995, there is no formal agreement among WTO Members that they will refrain from filing NVSCs under TRIPS. The moratorium has expired, not been abolished, and that distinction matters.

WTO Members retain the legal right under Article XXIII:1(b) and (c) of GATT, as incorporated through Article 64.1 of TRIPS, to bring NVSCs before a dispute settlement panel. Whether such complaints can succeed is a different question. The treaty standard under Article XXIII is whether a benefit accruing to a Member directly or indirectly under the Agreement is being nullified or impaired, or whether the attainment of any objective of the Agreement is being impeded. Under a classical market-access agreement, the expected benefit maps onto competitive conditions for goods or services, and the inquiry is relatively tractable. Under TRIPS, identifying the equivalent expected benefit is considerably harder — and that difficulty is precisely what the US and Switzerland want panels to work through, while sceptics argue it is an obstacle the conditions can never surmount. Either way, no NVSC under TRIPS has ever been fully litigated, and the first panel to confront the question will face genuinely open legal terrain.

What has changed is the institutional constraint. Members who previously operated under an explicit collective agreement not to file NVSCs now face no such restraint. The expiry of the moratorium removes a form of mutual self-restraint that, imperfect as it was, served a stabilizing function.

A lost opportunity: The Article 64.3 dimension

Beyond the immediate moratorium lapse, there is a systemic consequence that has received almost no attention in the post-Yaoundé commentary. Article 64.3 empowered the Ministerial Conference to make a recommendation on the scope and modalities of NVSCs under TRIPS. Critically, any such recommendation would have applied directly, without the need for ratification by Members. This was, in effect, a blanket licence to adjust the Agreement in this specific area through a streamlined decision rather than through the lengthy and uncertain process of formal amendment.

That opportunity has now closed. Whatever recommendation the TRIPS Council might have produced (e.g., defining conditions under which NVSCs could proceed, confirming that measures covered by TRIPS exceptions are immune, establishing procedural safeguards, or reaching some other agreed clarification) it can no longer be implemented through this simplified mechanism. The irony is that this mechanism was arguably in the long-term interest of both sides of the debate. Those who favour NVSC applicability could have secured a formal acknowledgment that NVSCs are available under TRIPS in principle, subject to defined conditions. Those who favour exclusion could have achieved the “shall not” clarity they sought, removing residual legal uncertainty without relying on the “do not” conclusion that would require a panel to reach.

Unless WTO Members agree on a different path, as things stand, these fundamental questions now fall to the first panel seized with an NVSC claim under TRIPS. That panel will have to determine, without the benefit of any ministerial guidance, whether the treaty conditions can be fulfilled in the IP context, whether measures covered by TRIPS exceptions are shielded, and what standard of nullification or impairment applies. It is not an enviable task, and the outcome will be less predictable and less politically legitimate than a negotiated clarification could have been.

Why this matters for IP policy

The practical stakes should be assessed carefully. Both the United States and Switzerland have been explicit that measures covered by TRIPS exceptions, including the flexibilities that support public health, access to medicines, and technology transfer, cannot be challenged through NVSCs. That position, if a panel adopts it, would substantially limit the risk to regulatory autonomy that moratorium supporters feared. My own view is that the more plausible NVSC terrain, if any, lies in Part III of TRIPS on enforcement obligations, rather than in Part II on rights, exceptions, and limitations.

That said, uncertainty itself has costs. The immediate effect of the moratorium’s expiry may be less a wave of litigation than a shadow over regulatory decisions and a new source of leverage in bilateral trade negotiations. The NVSC complaint, even rarely used, can function as a bargaining chip or a latent threat — and it is in that register, rather than before a dispute settlement panel, that its expiry is most likely to be felt in the near term.

What comes next

The Yaoundé package draft on TRIPS NVSCs will form the basis of resumed negotiations at the next General Council meeting in Geneva, expected in May 2026. A General Council decision restoring the moratorium has precedent: the December 2019 decision extended it pending the long-delayed 12th Ministerial Conference. A similar mechanism could close the current gap, but it requires consensus, and the same divisions that prevented agreement in Yaoundé will likely be present in Geneva.

The deeper question, namely whether the 25-year examination of NVSC scope and modalities will ever produce a substantive outcome through negotiation, is now joined by a new one: whether a dispute settlement panel will reach a conclusion first, foreclosing the political process entirely. The ship has sailed on the Article 64.3 pathway. What remains is either a restored moratorium that defers the question once again, or a first-mover panel decision that will shape the legal landscape for years to come.

A word on perspective

I have followed this issue since the Uruguay Round negotiations that produced TRIPS, and I remain of the view that the conditions for a successful NVSC under TRIPS are very difficult to meet given the structural differences between TRIPS and conventional market-access agreements. The moratorium’s loss removes a settled expectation that supported predictability for all Members, whatever their position on the underlying merits.

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