Read more about this article: The WTO’s MC-12 Key Outcomes and Highlights

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The WTO’s MC-12: Key outcomes and highlights
Jun 17, 2022
Author(s) :
Parthsarathi Jha (https://elplaw.in/people/parthsarathi-jha)
, Sanjay Notani
(https://elplaw.in/people/sanjay-notani)
, Naghm Ghei
Introduction
The much-awaited 12 Ministerial Conference of the World Trade Organization took place from 12 to 16
June 2022, resulting in a package of declarations and decisions on a variety of issues. This update
highlights the key outcomes of MC-12 from the Indian perspective.
E-Commerce
With respect to e-commerce, Members agreed to maintain their current practice of not imposing customs
duties on electronic transmissions until MC-13, which is expected to be held by 31 December 2023.
Members also committed to reinvigorating efforts under the Work Programme on Electronic Commerce
and intensify discussions on the moratorium including with respect to its scope, definition, and impact on
customs duties.[1]
The possibility of an end to the moratorium, had been a key concern for India, which has long viewed the
moratorium as a loss of revenue for developing countries. However, it appears that a conclusion to the
issue is likely to take significant time going forward. Despite the moratorium having been in place since
1998, little progress has been made to resolve outstanding questions including the scope of what
constitutes an “electronic transmission” to begin with. The draft declaration leaves open the possibility for
further extension of the moratorium past 31 March 2024, if Members so decide. The tussle between
emerging economies and the established data giants in developed countries over such duties will likely
continue. Thus, significant efforts and deliberations in the interim between MC-12 and 13 will be required if
a conclusive decision is to be reached before the end of the year.
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Food Security
In the realm of food security, Members formally adopted the Draft Ministerial Declaration on Emergency
Responses to Food Insecurity and Draft Ministerial Declaration on World Food Programme Food Purchases
Exemption from Export Prohibitions or Restrictions. According to these declarations, any emergency
measures introduced to address food security concerns shall minimize trade distortions as far as possible;
be temporary, targeted, and transparent; and be notified and implemented in accordance with WTO rules.[2]
Members imposing such measures are also required take into account their possible impact on other
Members, including developing countries, and particularly least-developed and net food-importing
developing countries. Further, such export prohibitions or restrictions on foodstuffs shall not extend to
foodstuffs purchased for non-commercial humanitarian purposes by the World Food Programme.
Crucially, the decision makes an exception for measures adopted to ensure domestic food security in
accordance with the relevant provisions of the WTO agreements.[3] India had previously been opposed to
the idea of a blanket exemption of any kind in relation to such export restrictions, and this carve out may
address some of India’s concerns from a food security perspective. Having recently banned the export of
wheat over food security concerns, India may continue to take similar measures in the future. However,
India may need to be cognizant of the need for transparency and timely notification at the WTO while
taking such measures. Moreover, the declaration is likely to attract greater scrutiny from trading partners in
the future for such measures taken in the name of food security and which digress from the exemption, to
determine whether they are indeed in line with WTO rules.
Separately, India had been pressing for a permanent solution to the issue of public stock holding of grains
for food security programmes and to address the needs of low income and resource poor farmers in
developing countries. However, no consensus appears to have been reached on this issue and this will
likely continue to serve as a key point for negotiations carrying on into MC-13.
Intellectual Property Waivers
After much advocacy from Members such as India, a decision has been reached on the TRIPS waiver for
COVID-19 vaccines through a Draft Ministerial Decision on the TRIPS Agreement. As per the Declaration,
eligible Members may limit the rights provided for under Article 28.1 of the TRIPS Agreement by
authorizing the use of the subject matter of a patent required for the production and supply of COVID-19
vaccines without the consent of the right holder to the extent necessary to address the COVID-19
pandemic.[4] All developing countries are eligible for this waiver. However, developing country Members
with existing capacity to manufacture COVID-19 vaccines (which includes India) have been encouraged to
make a binding commitment not to avail themselves of this waiver, thereby seeking to limit the waiver to a
certain extent. Such patent rights may be limited through any instrument available under the law of the
Member including executive orders, emergency decrees, government use authorizations, and judicial or
administrative orders, whether or not a Member has a compulsory license regime in place. For the
purposes of transparency, Members are required to communicate all such measures to the Council for
TRIPS as soon as practicable after their adoption.

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India had been pushing for diagnostic and therapeutic goods to be included within the realm of the waiver,
however, Members have decided to park the issue for further discussion and agreement to be completed
within 6 months from the issuance of the declaration.
Fishery Subsidies
Members have arrived at an agreement on the longstanding negotiations relating to the fisheries subsidies
aimed at eliminating subsidies on Illegal, Unregulated and Unreported (IUU) fishing activities.[5] India and
other developing nations had been advocating for special and differential treatment for developing
countries in relation to elimination of subsidies.
In this regard, Article 5.1 of the draft agreement that was being negotiated placed a blanket prohibition on
subsidies to fishing or fishing related activities that contribute to overcapacity or overfishing and provided
an illustrative list of the types of such subsidies, including subsidies to construction, acquisition,
modernization, renovation or upgrading of vessels, subsidies to the purchase of machines and equipment
for vessels, subsidies to the purchase/costs of fuel, ice, or bait, etc. The draft agreement also specified a
transition period of seven years for developing nations during which they will be able to continue providing
such subsidies, subject to them meeting certain conditions (including with respect to their share in the
global volume of marine production). This was in contrast to the 25-year transition period that India had
been advocating for.
The draft agreement also prohibited the grant of subsidies for fishing or fishing related activities regarding
an overfished stock as well as illegal, unreported and unregulated (IUU) fishing or fishing related activities
in support of IUU fishing. Again, developing country members are allowed a two-year transition period for
these kinds of subsidies (subject of course, to certain conditions laid down in the agreement).
This had raised concerns among members that the text disciplined small-scale fishers unfairly compared
to large scale fishers in developed countries, by placing numerous conditions on the use of special and
differential treatment flexibilities, a point that India has been repeatedly making during the course of
negotiations. As a result, the provision relating to overfishing was changed to read that “no Member shall
grant or maintain subsidies provided to fishing or fishing related activities outside of the jurisdiction of a
coastal Member or a coastal non-Member and outside the competence of a relevant RFMO/A”, thereby
significantly limiting the prohibition, while the provisions for a 7-year transition period were deleted
altogether. The transition period for IIU fishing and overfished stock were continued. As a result, the
complete prohibition on subsidies for fisheries, is currently limited to illegal, unreported, unregulated
fishing, something that is not provided in India.
Conclusion
The Indian Government has expressed its satisfaction with the outcome of MC-12 negotiations, having
played a key role in pushing negotiations through. India has successfully navigated the issue relating to
food security and patent waivers for vaccines and is reported to have been instrumental in pushing through
a conclusion on fisheries as well.

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Indeed, many are viewing the adoption of concrete decisions on various pertinent issues as a significant
turning point for the WTO, which had long been vilified for the paralysis of its negotiating wing. Hopes are
now high that the impetus provided by the outcome of MC-12 will continue, resulting in much more
concrete decisions to come. Going forward, India is expected to play a key balancing role between
safeguarding that future decisions consider the needs of developing country Members on the one hand
and ensuring that decisive action is taken where needed, on the other.
[1] Work programme on electronic commerce – Draft Ministerial Decision of 16 June 2022,
WT/MIN(22)/W/23.
[2] Draft Ministerial Declaration on the Emergency Response to Food Insecurity –
RevisionWT/MIN(22)/W/17/Rev.1
[3] Draft Ministerial Decision On World Food Programme Food Purchases Exemption From Export
Prohibitions Or Restrictions 16 June 2022, WT/MIN(22)/W/18.
[4] Ministerial Conference Twelfth Session Geneva, 12-15 June 2022, Draft Ministerial Decision On The
Trips Agreement Revision WT/MIN(22)/W/15/Rev.2
[5] Agreement on Fisheries Subsidies – Draft Ministerial Decision of 17 June 2022, WT/MIN(22)/W/22
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