Canada – Patent Protection of Pharmaceutical Products (WT/DS114): Award of the Arbitrator under Article 21.3(c) of the DSU

Summary

INTRODUCTION

On 7 April 2000, the Dispute Settlement Body (the “DSB”) adopted the Panel Report in Canada – Patent Protection of Pharmaceutical Products (“Canada – Pharmaceutical Patents”). On 25 April 2000, Canada informed the DSB, pursuant to Article 21.3 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (the “DSU”), that it would implement the recommendations and rulings of the DSB in this dispute; however, Canada said that it would require a “reasonable period of time” to do so, under the terms of Article 21.3 of the DSU.

Consultations between Canada and the European Communities on the duration of the reasonable period of time for implementation occurred but these did not result in agreement.

By joint letter of 20 June 2000, Canada and the European Communities notified the DSB that they had agreed that the duration of the reasonable period of time for implementation should be determined through binding arbitration, under the terms of Article 21.3(c) of the DSU, and that I should act as Arbitrator. The parties also indicated in that letter that they had agreed to extend the time period for the arbitration, fixed at 90 days by Article 21.3(c) of the DSU, until 31 August 2000. Notwithstanding this extension of the time period, the parties stated that the arbitration award would be deemed to be an award made under Article 21.3(c) of the DSU. My acceptance of this designation as Arbitrator was conveyed to the parties by letter of 21 June 2000.

Written submissions were received from Canada and the European Communities on 6 July 2000, and an oral hearing was held on 20 July 2000.

ARGUMENTS OF THE PARTIES

Canada

Canada submits that the implementation of the DSB's recommendations and rulings in this case can be accomplished through regulatory change rather than through legislative amendment, which Canada submits is usually more time consuming. Given the extent of consultations required in this contentious field, Canada believes that the regulatory process can be carried out and finalized in a maximum of 11 months’ time from the date of adoption of the Panel Report.