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WTO disputes

Third party oral statement of Australia

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

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.

Last Updated: 9 January 2013
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