Saudi
Arabia – Measures Concerning the Protection of Intellectual Property Rights
report of the panel
TABLE OF
CONTENTS
1 Introduction.. 14
1.1
Complaint by Qatar 14
1.2
Panel establishment and composition. 14
1.3
Panel proceeding. 14
1.3.1
General 14
1.3.2
Procedural issues arising from Saudi Arabia's refusal to interact with Qatar 15
1.3.3
Issues concerning certain English translations submitted by the UAE. 16
1.3.4
The Panel's request for information from the International Bureau of WIPO. 16
1.3.5
Saudi Arabia's request to confirm the authenticity of an exhibit submitted by
Qatar 17
1.3.6
Procedural issues arising from Qatar's submission of a witness statement 17
2 Factual aspects. 21
2.1
Introduction. 21
2.2
Factual background. 21
2.2.1
The broadcasting and copyright regime in Saudi Arabia. 21
2.2.2
The June 2017 severance of relations and events leading up to it 25
2.2.3
The broadcasting operations of the Qatari-based beIN Media Group. 29
2.2.4
The emergence of beoutQ. 31
2.3
The measures at issue. 32
3 Parties' requests for findings and
recommendations. 33
4 Arguments of the parties. 35
5 Arguments of the third parties. 35
6 Interim review.. 35
6.1
Introduction. 35
6.2
General issues. 35
6.3
Factual aspects. 39
6.4
Preliminary considerations. 40
6.5
Acts and omissions claimed by Qatar to be attributable to Saudi Arabia. 40
6.6
Claims under Parts I, II and III of the TRIPS Agreement 45
6.7
Saudi Arabia's invocation of Article 73(b)(iii) of the TRIPS Agreement 46
6.8
Conclusions and recommendation. 47
7 Findings. 47
7.1
Preliminary considerations. 47
7.1.1
Overview and order of analysis. 47
7.1.2
Saudi Arabia's request that the Panel decline to make any findings or
recommendation based on Articles 3.4, 3.7 and 11 of the DSU. 49
7.1.3
The measures challenged by Qatar 54
7.2
Acts and omissions claimed by Qatar to be attributable to Saudi Arabia. 57
7.2.1
Introduction. 57
7.2.2
Arguments. 59
7.2.2.1
Qatar 59
7.2.2.2
Saudi Arabia. 60
7.2.3
Assessment by the Panel 62
7.2.3.1
Applicable legal standard. 62
7.2.3.2
beIN's access to civil enforcement procedures. 63
7.2.3.2.1
Anti-sympathy measures. 63
7.2.3.2.1.1
Introduction. 63
7.2.3.2.1.2
Evidence regarding general anti-sympathy measures. 63
7.2.3.2.1.3
Evidence regarding the refusal of Saudi law firms to act in relation to the
beoutQ matter 65
7.2.3.2.1.4
Evidence regarding other actions by Saudi authorities to direct private
entities
in their arrangements with beIN. 66
7.2.3.2.1.5
Conclusion. 68
7.2.3.2.2
The 19 June 2017 Circular, travel restrictions and Ministerial
approval
requirement 68
7.2.3.3
Non-application of criminal procedures and penalties. 73
7.2.3.3.1
Introduction. 73
7.2.3.3.2
Overview of correspondence. 73
7.2.3.3.3
Evidence regarding the promotion of beoutQ by prominent Saudi nationals. 77
7.2.3.3.4
Evidence regarding the targeting of the Saudi market by beoutQ. 79
7.2.3.3.5
Evidence regarding the transmission of beoutQ's broadcasts via Arabsat 83
7.2.3.3.6
Evidence regarding the involvement of Selevision. 88
7.2.3.3.7
Overall assessment 90
7.2.3.4 Public screenings of beoutQ's broadcasts. 90
7.2.4 Conclusion. 92
7.3
Claims under Parts I, II and III of the TRIPS Agreement 92
7.3.1
Introduction. 92
7.3.2
Arguments. 93
7.3.2.1
Qatar 93
7.3.2.2
Saudi Arabia. 95
7.3.2.3
Third parties. 95
7.3.3
Assessment by the Panel 97
7.3.3.1
Order of analysis. 97
7.3.3.2
Claims under Article 42 of the TRIPS Agreement regarding civil and
administrative procedures and remedies, and Article 41.1 on general
obligations. 98
7.3.3.2.1
Applicable legal standard. 98
7.3.3.2.2
Application to the facts. 99
7.3.3.2.3
Conclusion. 101
7.3.3.3
Claim under Article 61 of the TRIPS Agreement regarding criminal
procedures. 101
7.3.3.3.1
Applicable legal standard. 101
7.3.3.3.2
Application to the facts. 104
7.3.3.3.3
Conclusion. 106
7.3.3.4
Claims under Part I and Part II of the TRIPS Agreement 106
7.4
Saudi Arabia's invocation of Article 73(b)(iii) of the
TRIPS Agreement 108
7.4.1
Introduction. 108
7.4.2
Arguments. 109
7.4.2.1
Saudi Arabia. 109
7.4.2.2
Qatar 109
7.4.2.3
Third parties. 110
7.4.3
Assessment by the Panel 112
7.4.3.1
Applicable legal standard. 112
7.4.3.2
"taken in time of war or other emergency in international relations" 116
7.4.3.3
"action which it considers necessary for the protection of its essential
security
interest" 119
7.4.3.3.1
Introduction. 119
7.4.3.3.2
The "actions" covered by Saudi Arabia's invocation of
Article 73(b)(iii) 119
7.4.3.3.3
Saudi Arabia's articulation of its "essential security interests" 120
7.4.3.3.4
The connection between the measures and the essential security interests. 121
7.4.4
Conclusion. 124
8 Conclusions and Recommendation