Mumbai: India is set to move the World Trade Organization (WTO) against the European Union (EU) in about a week, challenging for the first time the “unauthorized” seizure of drug exports being shipped through the continent to Latin America, Africa and a few other Asian markets that have been taking place since late 2008.
The Indian mission in Geneva was last week assigned to formally move the complaint to the world’s apex trade body and has engaged Frederick M. Abbott, who was adviser to the government on Trade-Related Aspects of Intellectual Property Rights, or TRIPS, and Krish Venugopal, a senior IPR (intellectual property rights) lawyer as counsel, said a commerce ministry official on Saturday.
Abbott is currently in Delhi to discuss details of the case with commerce ministry officials. The filing, which was to have taken place on Monday, was delayed to ensure all loopholes are plugged, according to a commerce ministry official who is part of the Indian mission in Geneva.
Alongside this, “the government has started a few other pressure tactics as well to express India’s strong stand on the issue to the European Union,” said the same official who doesn’t want to be identified owing to the sensitive nature of the issue.
Abbott is a rapporteur for the committee on international trade law of the International Law Association, and consultant to the Unctad/ICTSD Project on Intellectual Property and Sustainable Development to the World Health Organization and the World Bank. He is also on the panel of experts of Unctad’s Program on the Settlement of Disputes in International Trade, Investment and Intellectual Property. Venugopal is a senior IP lawyer based in New Delhi and has been advising the government on various international trade and IPR related matters as consultant.
Rajiv Kher, joint secretary at ministry of commerce, government of India, is currently in Geneva and has included at least seven individual complaints from Indian drug makers such as Cipla Ltd, Dr Reddy’s Laboratories Ltd, Aurobindo Pharma Ltd, Ind-Swift Laboratories Ltd, Macleods Pharmaceuticals Ltd and Medopharm Ltd among others along with the petition.
India will say in its appeal that the seizure of export consignments at several European ports was an action beyond what is stipulated by the TRIPS rules, or a so-called TRIPS-plus demand by the respective countries, and the issue has to be resolved on a priority basis at the highest level. It has said that Indian companies have not violated any law by sending pharmaceutical goods to their clients in other developing countries, said P.V. Appaji, executive director, Pharmaceutical Export Promotion Council (Pharmexcil), which was actively involved in the move.
“We expect more details from the joint secretary on the petition once he is back from Geneva on Monday,” said Appaji.
The Indian government has been preparing to take up the issue with WTO since many drug exporters faced such action by customs at European ports early this year. The seizures were made for alleged patent law violations, as some of these drugs are still under protection in European countries.
Some of the companies such as Dr Reddy’s and Cipla and a few others had also taken up the case with European courts and authorities individually.
“The commerce ministry had also offered to reimburse a large portion of these legal expenses of Indian companies,” said Appaji.
A formal complaint from a member country at WTO normally follows prior negotiation and various rounds of discussions. India has been in talks with the trade body for quite some time now. Once the formal complaint is moved, it goes to the dispute settlement forum of WTO, and the matter is argued along with evidence. Abbott was in India in the first week of December to collect evidence from Indian drug companies, and he had discussions with various affected parties.
While there is enough evidence to prove India’s case, there are still concerns on the legal front, patent law experts said.
“If India has filed its complaint against the EU per se, the chances of success are not that bright,” said Shamnad Basheer, an expert in world intellectual property law and a professor in IP law at the National University of Juridical Sciences, Kolkata.
“However, if its complaint is against the individual EU member states such as the Netherlands and France that seized the transit consignments in issue, then it has a much stronger case. For the seizures directly implicate Article 41 of TRIPS, which prohibits all IP enforcement measures that create barriers to legitimate trade,” Basheer said.
About 18 Indian drug exporters have had their export consignments seized at European ports, mainly in France and the Netherlands.
However, only seven of these exporters have come forward to officially complain against the European action, said Appaji.
Dilip G. Shah, secretary general, Indian Pharmaceutical Alliance (IPA), which has been at the forefront of lobbying for pursuing the matter at WTO, said the government had taken the final decision to move a formal complaint at WTO a week ago.
IPA is an industry lobby that represents top Indian drug makers.
“All the necessary steps have now been initiated in this regard, and we have been also asking the government to put pressure on the European authorities by various other ways such as introducing alternative export channels and carriers instead of using European airlines and shipping companies to send our legitimate export consignments to Africa and other developing countries,” he said.
Currently, France’s leading cargo firm KLM Cargo, and a few other European airlines handle a significant majority of India’s drug exports to these markets.