Legal Definitions - reverse consensus

Reverse consensus is a procedural rule used in the dispute settlement system of the World Trade Organization (WTO), particularly under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). TRIPs is an international treaty that sets minimum standards for intellectual property regulation (like patents, copyrights, and trademarks) as applied to WTO member countries.

Unlike traditional consensus, where a decision requires everyone to explicitly agree to move forward, reverse consensus means that a decision or action *automatically proceeds* unless *all* parties involved in the dispute unanimously agree to *stop* it. This mechanism was introduced to prevent any single country from unilaterally blocking the dispute settlement process, ensuring that intellectual property disputes are addressed efficiently and reports are adopted without undue delay.

Here are some examples illustrating how reverse consensus works:

• Formation of a Dispute Panel: Imagine Country A believes that Country B is not adequately protecting the patents of its pharmaceutical companies, violating Country B's obligations under the TRIPs Agreement. Country A initiates a dispute settlement process at the WTO and requests the formation of a dispute panel to examine the issue. Under the principle of reverse consensus, this panel will be established *automatically* to hear the case. The only way for the panel *not* to be formed is if *both* Country A and Country B, along with any other interested parties, unanimously agree that it should not proceed.

• Adoption of a Panel Report: A WTO dispute panel has concluded its investigation into a complaint by Country X against Country Y, concerning Country Y's enforcement of trademarks for luxury goods. The panel issues a report finding that Country Y's practices are inconsistent with its TRIPs commitments. This report, including its recommendations, will be *automatically adopted* by the WTO's Dispute Settlement Body. The only way to prevent its adoption is if *all* parties involved in the dispute – Country X, Country Y, and any third parties – collectively and unanimously decide *not* to adopt the report.

• Adoption of an Appellate Body Report: Following a panel's decision on a dispute between Country P and Country Q regarding copyright protection for software, Country Q decides to appeal certain legal findings. The WTO's Appellate Body reviews the appeal and issues its own report, which either upholds, modifies, or reverses the panel's findings. This Appellate Body report will then be *automatically adopted* by the WTO's Dispute Settlement Body. Its adoption can only be prevented if *all* parties involved in the appeal – Country P, Country Q, and any third parties – unanimously agree to reject the report.