The latest dispute panel report is out from the WTO - Qatar versus Saudi Arabia on infringement of the TRIPS Agreement.
The report decided in favour of Qatar though not going all the way in terms of pronouncing on all the claims - it treaded the middle path, I guess!
Some interesting aspects of the report (footnotes omitted):
1. What happens when one of the parties just refuses to acknowledge the other?
5. First WTO case where tweets are evidence? - Watch out before you tweet!
The Panel concluded that severance of diplomatic relations was not a valid ground for a lack of jurisdiction to entertain a claim of violation of WTO obligations. They are both on different planes.
It established that beIn was prevented from obtaining Saudi legal counsel to enforce its IP rights through civil enforcement procedures before Saudi courts and tribunals. The panel also rejected Saudi Arabia's security exception defence.
This dispute was in many ways a path breaker - on football, broadcasting, piracy, tweets and diplomatic relations.It was also an example of refreshing judicial economy - the panel did not decide on the national treatment and most favoured nation treatment claims, but restricted it to civil and criminal enforcement infringement.
Now that the Appellate Body is not in place, is this the end of the road for Saudi Arabia? WIll it go through the Multi-party Interim appeal arbitration arrangement pursuant to Article 25 of the DSU that the EU has advocated. However, Qatar and Saudi Arabia are not signatories to this. Para 12 of the arrangement allows any WTO member to join the mechanism:
The report decided in favour of Qatar though not going all the way in terms of pronouncing on all the claims - it treaded the middle path, I guess!
Some interesting aspects of the report (footnotes omitted):
1. What happens when one of the parties just refuses to acknowledge the other?
Throughout the proceeding, Saudi Arabia took the position that, consistent with its severance of all relations with Qatar (including diplomatic and consular relations), and the essential security interests that motivated it to take that action, it would not interact, or have any direct or indirect engagement, with Qatar in any way in this dispute. Saudi Arabia took this position in the context of consultations , at the DSB meeting where the request for the establishment of this Panel was first considered, and in its comments on the Panel's draft Working Procedures and Timetable during the organizational phase.Saudi Arabia reiterated, in all of its subsequent submissions in this proceeding, its refusal to interact in any way, or have any direct or indirect engagement, with Qatar in this dispute.2. Seeking help from another international organisation - WIPO
On 12 July 2019, the Panel sent a letter to the International Bureau of WIPO, which is responsible for the administration of the Berne Convention for the Protection of Literary and Artistic Works. In that letter, the Panel requested the assistance of the International Bureau of WIPO in the form of any factual information available to it that would be relevant to the interpretation of the provisions of the Paris Act of that Convention (Berne Convention (1971)) referenced by the parties. The Panel sought, in particular, any information reflected in the materials of diplomatic conferences and subsequent developments in the framework of the Berne Union.3. Copyright issues in broadcasting - beIn and beOutQ - In and Out gave it away?
... In August 2017, beoutQ began the unauthorized distribution and streaming of media content that is created by or licensed to beIN, and beIN continues to broadcast in the MENA region.The name "beoutQ", i.e. "be out Qatar", is a play on the name beIN Sports.beoutQ illegally streams and broadcasts the contents of beIN's sports channels, replacing beIN's logo with that of beoutQ.It provides access to 10 beIN sports channels (both live and pre-recorded by beoutQ).In addition to pirated versions of live broadcasts, beoutQ also creates unauthorized reproductions of those broadcasts for later replay as reruns.4. The geopolitical scenario in context - the defence was not good enough
Saudi Arabia characterized the events leading up to its severance of relations with Qatar as "relevant background information".95 However, Saudi Arabia went further, submitting also that the "severance of relations between the two countries and the publicly-stated reasons for the measures of Saudi Arabia constitute the only relevant facts in this dispute".
On 5 June 2017, Saudi Arabia severed relations with Qatar, including diplomatic and consular relations, the closure of all ports, the prevention of Qatari nationals from crossing into Saudi territory, and the expulsion within 14 days of Qatari residents and visitors in Saudi territories.
On the same day, Saudi Arabia publicly articulated the rationale behind the measures in the following terms:
[T]he Government of … Saudi Arabia emanating from exercising its sovereign rights guaranteed by [] international law and protecting its national security from the dangers of terrorism and extremism has decided to sever diplomatic and consular relations with the State of Qatar, close all land, sea and air ports, prevent crossing into Saudi territories, airspace and territorial waters.123
5. First WTO case where tweets are evidence? - Watch out before you tweet!
All of the tweets above foreshadow that a substitute for beIN's operations would enter the Saudi market, and some of the tweets support the establishment of a pirate channel, beoutQ, to circumvent beIN's exclusive licences from third-party right holders. Saudi Arabia did not contest the content of these tweets.6. Reliance on USTRs Special 301 Reports as evidence - Another first?
For example, in its 2019 Special 301 Report, the Office of the United States Trade Representative (USTR) placed Saudi Arabia on its Priority Watch List, citing "[r]ampant satellite and online piracy" propagated by beoutQ. The USTR explained that the beoutQ STBs "continue to be widely available and are generally unregulated in Saudi Arabia" and that Saudi Arabia "has not taken sufficient steps to address the purported role of Arabsat in facilitating [b]eoutQ's piracy activities".In a series of submissions to the US Government under the 2019 Special 301 process in February 2019, multiple right holders and coalitions from around the world detailed the harm that the beoutQ piracy has caused to their business.This dispute essentially revolved around the alleged copyright violations of beoutQ of rights of beIN relating to broadcasting, especially sports and movies. Qatar alleged violation of the TRIPs agreement including national treatment, most-favoured nation treatment, availability of IP right and civil and criminal enforcement of these rights. Saudi Arabia invoked the security exception under the TRIPS Agreement in the context of the severance of all ties with Qatar.
The Panel concluded that severance of diplomatic relations was not a valid ground for a lack of jurisdiction to entertain a claim of violation of WTO obligations. They are both on different planes.
It established that beIn was prevented from obtaining Saudi legal counsel to enforce its IP rights through civil enforcement procedures before Saudi courts and tribunals. The panel also rejected Saudi Arabia's security exception defence.
This dispute was in many ways a path breaker - on football, broadcasting, piracy, tweets and diplomatic relations.It was also an example of refreshing judicial economy - the panel did not decide on the national treatment and most favoured nation treatment claims, but restricted it to civil and criminal enforcement infringement.
Now that the Appellate Body is not in place, is this the end of the road for Saudi Arabia? WIll it go through the Multi-party Interim appeal arbitration arrangement pursuant to Article 25 of the DSU that the EU has advocated. However, Qatar and Saudi Arabia are not signatories to this. Para 12 of the arrangement allows any WTO member to join the mechanism:
Any WTO Member is welcome to join the MPIA at any time, by notification to the DSB that it endorses this communication. In relation to disputes to which such WTO Member is a party, the date of that Member's notification to the DSB will be deemed to be the date of this communication for the purposes of paragraphs 9 and 10.But for now, over to compliance?
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