In July 2020, I blogged about Saudi Arabia’s appeal of the panel report in the Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights dispute. There is now an update regarding this dispute. The parties to the dispute, Saudi Arabia and Qatar, have both agreed to suspend the appellate proceedings and any proceedings to adopt the panel report by the WTO’s dispute settlement body (DSB). This means that the panel report will remain as it is, i.e. non-binding, for as long as the suspension remains in place. In my earlier post, I had noted that, while Saudi Arabia was partially successful in its invocation of the security exception in Article 73(b)(iii) of the TRIPS Agreement, in its notification of appeal, Saudi Arabia expressed its dissatisfaction with several aspects of the panel report including the panel’s finding regarding the invocation of Article 73(b)(iii) of the TRIPS Agreement.
The impetus behind this recent development is the Al-Ula Declaration of 5 January 2021 that was signed by Bahrain, Egypt, Kuwait, Oman, Qatar, Saudi Arabia, and the United Arab Emirates. According to this Declaration, the signatories, inter alia, ‘…committed to bringing an end to any claims, complaints, measures, protests, objections or disputes of any sort against any other State party to the Declaration, including by dropping, withdrawing or rescinding them…’ Specifically, Article II.2 of the Declaration provides that:
All claims, complaints, measures, protests, objections and disputes shall be terminated at the end of the first year from the date of signature of the present Declaration. Such claims, complaints, measures, protests, objections and disputes shall be suspended or frozen with the entities in question (i.e. the courts, agencies, committees, authorities and other domestic, regional and international entities) within one week of the signature of the present Declaration.
In its communication to the DSB regarding this dispute dated 7 January 2022, Saudi Arabia stated that:
The Kingdom of Saudi Arabia writes to confirm the suspension of appellate proceedings in the dispute Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights (DS567) pursuant to the terms of the Al-Ula Declaration signed on 5 January 2021.
Furthermore, the Kingdom confirms the suspension of any further proceedings to adopt the Panel Report in this dispute pursuant to the Al-Ula Declaration.
In the same vein, in its own communication to the DSB also dated 7 January 2022, Qatar stated, inter alia, that:
Qatar is in receipt of Saudi Arabia’s letter dated 29/12/2021, requesting a suspension of the appellate proceedings in the DS567 matter. Qatar agreed to the proposed suspension of the appellate proceedings pursuant to the terms of Al-Ula Declaration signed on 5 January 2021. Qatar further confirms the suspension of its submission to the aforementioned appeal dated on 17 August 2020.
Qatar confirms the suspension of any further proceedings to adopt the panel report, while the mutually agreed suspension remains in place.
Though the panel report arising from this dispute may not eventually be adopted by the DSB, the report contains some very useful insights regarding the meaning and scope of the security exception contained in Article 73(b)(iii) of the TRIPS Agreement.