Notes on Article 13bis
135. Article 13bis has been inserted as an alternative in the draft Treaty following the interest expressed by the majority of delegations at the fourth session of the Committee of Experts in further studying and considering at the Diplomatic Conference the proposal made by the Delegation of the United States of America for a draft Article dealing with consultation procedures (see document IPIC/CE/IV/6). Article 13bis represents a modified version of the proposal made by the Delegation of the United States of America.
136. Not only is Article 13bis presented as an alternative in itself, but
This latter there is also an alternative presented within its provisions. alternative relates to the provisions contained in paragraph (3) on enforcement.
137. The basic argument in favor of the inclusion of a consultation and dispute resolution mechanism is the provision of a facility whereby disputes. between Contracting Parties concerning the subject-matter of the Treaty could be resolved within the multilateral framework provided by the Treaty for regulating intellectual property rights and obligations in respect of layout-designs.
138. Article 13bis follows a structure which is similar to that of the proposal made during the fourth session of the Committee of Experts by the Delegation of the United States of America (document IPIC/CE/IV/6), namely, a procedure which envisages three main features, relating to consultations, dispute-settlement and, by way of alternative, enforcement.
139. Ad paragraph (1): Subparagraph (1)(a) offers to Contracting Parties the facility of bringing to the attention of another Contracting Party legislation or a practice of that other Contracting Party which it considers is inconsistent with the provisions of the Treaty. Pursuant to subparagraph (1)(b) that other Contracting Party is required to provide promptly an adequate opportunity for consultations concerning the matter brought to its attention. Subparagraph (1)(c) obliges the Contracting Parties engaged in consultations to attempt to conclude the consultation satisfactorily for both of them within a short period of time.
140. The mechanism of consultations envisaged by paragraph (1), therefore, consists essentially of informal talks which, instead of taking place on a bilateral basis, are introduced into the context of the multilateral framework established by the Treaty.
141. Ad paragraph (2): This paragraph establishes the procedure for the examination of a matter in dispute between Contracting Parties by an independent panel in circumstances where that matter cannot be satisfactorily resolved by the parties themselves. It contemplates, therefore, an independent investigation and, ultimately, report, on the matter in dispute.
142. A panel would be convened, pursuant to subparagraph (2) (a), by the Director General, at the request of either of the Contracting Parties to the dispute. The panel would compose members selected from a list of designated experts established by the Assembly, and would be required to accord due process to the parties to the dispute by giving each of them a full opportunity to present their views to the panel.
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