A panel report in the dispute between Qatar and Saudi Arabia, Saudi Arabia – Measures Concerning the Protection of Intellectual Property Rights, WT/DS567/R, was released to the public today, June 16th.
Saudi Arabia and a number of other countries in the MENA (Middle East and North Africa) region had severed all relations with Qatar on June 5, 2017. Report, Section 2.2.2. “The June 2017 severance of relations and events leading up to it”. A Qatari company with exclusive rights of broadcasting in the MENA region (including Saudi Arabia) a range of sports for various leagues around the world found its materials used by a Saudi company without authorization. The Qatari company was unable to hire Saudi counsel to pursue enforcement actions in Saudi Arabia and criminal actions were not pursued by the Saudi government.
The dispute was one of several by Qatar against Members who cut off all relations for alleged violations of WTO Agreements. In the challenge of Saudi Arabia, various violations of the Trade-Related Aspects of Intellectual Property Rights Agreement were alleged by Qatar. While Saudi Arabia participated in the panel process, its main argument was that the matter was not properly the subject of dispute settlement or was justified by TRIPS Article 73.
Because the question of whether actions by countries pursuant to their national security concerns are properly the subject of WTO dispute settlement is important to many Members and in a number of ongoing disputes, there were many third parties (13 in total) to the dispute, including the United States, the European Union, China, Canada, Japan and others.
The panel did not find that the issues presented could not be decided by the panel. Based on the facts that were before the panel, the panel report had little trouble finding violations of various TRIPS Articles, with the key issue being whether security interests of the defending Member permitted an override of the other obligations. On this latter issue, the panel had different views on the two main violations, finding one (Art. 41.1 and 42) covered by the security exceptions and the other (Art. 61) not. More specifically, the panel found that the inability of the Qatari company to obtain local counsel in Saudi Arabia flowed directly from Saudi Arabia’s actions considered “necessary for the protection of its essential security interests” and which were “taken in time of war or other emergency in international relations.” TRIPS Art. 73(b) and (b)(iii). The panel did not find that the claim surrounding the non-application of criminal procedures and penalties to the Saudi company was factually related to the worsened relationship between Saudi Arabia and Qatar and hence did not find Art. 73 overrode the violation of TRIPS Art. 61.
The conclusion to the panel report is embedded below.
The earlier case that looked at security interests under the GATT, Russia – Measures Concerning Traffic in Transit, WT/DS512/R (adopted 26 April 2019; panel report was not appealed), was an object of interest for a number of the third parties who filed comments. While the U.S. supported the Saudi position that security interests are a matter of self-determination and are not subject to dispute settlement, that view was not supported by most other Members including Canada, China, the EU or Japan. WT/DS567/R/Add.1 at Annex C-4 (Canada), C-5 (China), C-6 (European Union), C-7 (Japan), C-13 (United States). With many countries (but not Japan) having challenges to the United States Section 232 national security action on steel and aluminum pending before panels, the third party positions mirror arguments being presented in those other disputes.
It is not clear that either Qatar or Saudi Arabia will pursue arbitration under DSU Art. 25 or some other approach to reach a final resolution of the dispute. While Saudi Arabia lost the overarching issue at the panel stage, having cut off all relations with Qatar, it is unclear why it would pursue next steps. For Qatar, having obtained a legal victory on some issues at the panel stage and with relations severed with Saudi Arabia, it is unclear what additional benefit they get from pursuing arbitration. They could decide to leave the issue for later appeal by agreeing with Saudi Arabia that they reserve the right to appeal at such time as the Appellate Body is functioning again. As neither Qatar nor Saudi Arabia are parties to the interim arbitration agreement that the EU and 20 other WTO Members are party to (JOB/DSB/1/Add.12, 13 and 14), any decision to pursue arbitration would have to be negotiated between the two countries including procedures, etc.
The panel report released today is important both in terms of providing some interpretation of TRIPS provisions but also for its interpretation of TRIPS Art. 73, which mirrors the language in GATT Art. XXI.
Bigger panel decisions are due out later this year in the large number of challenges to U.S. Section 232 of the Trade Expansion Act of 1962, as amended, and the actions taken on steel and aluminum products. The U.S. now has two panel reports that don’t agree with the U.S. basic premise that determination of national security interests and appropriate actions to take to defend are matters for Members to determine on their own without review by the dispute settlement system.
Assuming that the upcoming panel decisions go against the United States on that core principle, how the U.S. responds will depend on whether the panel report otherwise upholds the U.S. action as permissible in fact. If the U.S. loses the cases in toto, look for the U.S. to not accept the panel results, and to either negotiate with trading partners individually or take no action. The many countries who took unilateral retaliatory action without WTO disputes will likely continue to do so and may increase the level of retaliation based on the specifics of the decision.
At the same time, the United States has filed a series of challenges to the unilateral imposition of retaliation duties by many trading partners who treated Section 232 relief as being safeguard relief or without any WTO justification. Assuming that the U.S. wins all of these cases at the panel stage, the net outcome for the U.S. and each individual WTO member who has challenged Section 232 relief will depend on the combination of results and presumably bilateral consultations. It is unlikely that the United States will engage in arbitration with any of the disputants.
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