China – Measures Affecting Imports the Protection and Enforcement of IP Rights

Third party oral statement of Australia

Chair, Members of the Panel

Thank you for this further opportunity for Australia to present its views on the issues raised by this dispute. 

For the first time in respect of several of the enforcement provisions of the TRIPs Agreement, this panel will have to clarify those provisions in accordance with customary rules of interpretation of public international law as required by Article 3.2 of the DSU.  The Appellate Body has previously observed: 

“…  The ordinary meaning of a treaty term must be ascertained according to the particular circumstances of each case.  Importantly, the ordinary meaning of a treaty term must be seen in the light of the intention of the parties ‘as expressed in the words used by them against the light of the surrounding circumstances’.[…][1] 

Australia has set out in its Written Submission its views on how some of the terms in the provisions at issue should properly be interpreted. 

In particular, Australia has noted that Article 61 of TRIPs establishes more onerous obligations in respect of “wilful trade mark counterfeiting or copyright piracy on a commercial scale”.  Australia does not consider that the scope of a Member’s obligations in respect of such activity is limited or otherwise tempered by Articles 1.1 or 41.5.  Those provisions relate to a Member’s rights in relation to the method of implementation of its obligations under the TRIPs Agreement, but do not affect the character of a Member’s obligations under Article 61, or indeed any other provision. 

Australia would of course be pleased to provide responses to any questions that the Panel may have. 

Thank you

[1] European Communities – Customs Classification of Frozen Boneless Chicken Cuts, Appellate Body Report, WT/DS269/AB/R, WT/DS286/AB/R, paragraph 175. 

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