USD $196.00
Drafting Successful Access and Benefit-sharing Contracts
Series: - Legal Studies on Access and Benefit-sharing, Volume: 5
In Drafting Successful Access and Benefit-sharing Contracts, Young and Tvedt offer an insightful and profound analysis of how ABS can be made truly functional through the use of legally binding and enforceable contracts. Contracts are foreseen as the main legal tool for making access and benefit sharing work, thus realizing the third objective of the Convention on Biological Diversity. Many years have gone by since contracts were first suggested as a solution to resolve the challenges of ABS, but so far few successful benefit-sharing cases have been presented. This volume explores the possibilities and limits of contract law which both practitioners and stakeholders need in order for ABS contracts to become an effective solution for sustainable use of biological diversity.
Tomme Rosanne Young, JD (1981), Hastings College of Law, University of California, San Francisco. Having assisted countries around the world with natural resource laws and agreements, she has published dozens of books and monographs on ABS issues.
Morten Walløe Tvedt, Senior Research Fellow, Fridtjof Nansen Institute, Norway, has published extensively in biotechnology law, including patent law. He is assistant professor in constitutional law and advises on legal issues on biotechnology.
Morten Walløe Tvedt, Senior Research Fellow, Fridtjof Nansen Institute, Norway, has published extensively in biotechnology law, including patent law. He is assistant professor in constitutional law and advises on legal issues on biotechnology.
Preface
1
abs
and Contracts
1.1 The Contractual Challenge of
abs
1.2 Methodology: The Legal and Factual Analysis Undertaken for This Book
1.3 Getting a Handle on the
abs
Concept
1.4 Purpose and Organization of This Book
2 Drafting Functional
abs
Contracts: How Contracts can Achieve Reasonable
abs
Objectives
2.1 Addressing the Ambiguity of
abs
with the Specificity of Contact Law
2.2 Basic Contract Concepts – How Contracts Function
2.3 The Sources of Law for Interpretation and Drafting of
abs
Contracts
3 Planning and Negotiatingthe Contract
3.1 Preparing to Establish a Contractual Relationship
3.2 Mapping the “Optimal
abs
Contract” from the Negotiator’s Perspective
3.3 Negotiating Strategy
3.4 From Strategy to Binding Contract – Identifying the Specific Situation of the Current Negotiation and Coordinating it with the Strategy
3.5 The First Steps in the Negotiation
3.6
caveat
: The Illusionary Two-step Contractual Approach
4 Make Sure You Contract with the Right Parties: Addressing the Challenges of Contracts with Companies and other Entities
4.1 An Example: What it Means to “Contract with the Right Parties”
4.2 “Legal Personality” – Basic Criteria for Legally Binding Any Entity
4.3 Ability to Perform: Addressing the Nature and Stability of Corporate Entities
4.4 Contracting with the Right Individuals – Legally Recognized Capacity and other Issues
4.5 Legal Authority to Act on Behalf of a Party
4.6 Including and Properly Binding All Necessary Parties
5 “Be Specific and Concrete”: The Subject Matter (Res), Functional Clauses and Objective of the Contract
5.1 Contractual Precision – Ambiguity Kills Contracts
5.2 The Operative Provisions / What Does the Contract Do?
5.3 What is Transferred? – The Need for Precision about the Res
5.4 Obligation/Action Clauses: The Duties and Expectations of the Parties
5.5 Triggering Contractual Rights and Duties
5.6 “Objective” or “Purpose” Clauses
5.7 Change of Use or Intent
6 “Manage and Address Major Risks”: The “Third-party Transfer” Challenge
6.1 The Transfer of Genetic Resources,
atk
or Preliminary Research Results to Third Parties
6.2 Laws and Consequences Regarding Transfers of Resources and Rights
6.3 Assessing the Parties’ Options Regarding Third-party Transfer
6.4 Key Legal Elements of a Transfer Clause
6.5 Advice on Drafting Provisions Addressing Third-party Transfer
6.6 Special Third-party Transfer Risks
7 “Know the Possibilities and Limitations of Contract Law”: Contract Validity, Equity and Enforceability
7.1 Valid or Void – What Makes Your Document a Contract?
7.2 Basic Concepts and Principles of Contractual Functionality
7.3 Elements of Validity for
abs
Contracts
7.4 Effect of Contract Invalidation
7.5 Valid but Unenforceable – What Can be Done with “Soft” Obligations?
7.6 Contract Classification Issues
7.7 Industry Standards
8 “Expect the Best; Plan for the Worst”: Contract Provisions That Improve Enforceability and Address Contract Amendment
8.1 Why Not Wait until Enforcement is Needed? Addressing Enforceability in the Text
8.2 Types of Legal Remedies Available and How the Contract Can Affect Them
8.3 Enforcement-related Provisions in
abs
Contracts
8.4 Practical and Procedural Elements Relating to Enforcement of
abs
Contracts
8.5 Arbitration and Mediation Clauses
8.6 Parties That are Not Parties: Other Persons or Entities that Might Seek Enforcement
9 “Protect Contractual Expectations to Minimize the Need for Litigation”: Guarantees, Incentives, and Other Security Arrangements
9.1 The Advantage and Disadvantage of Non-judicial Remedies
9.2 The Contractual Balance and the Role of Non-judicial Remedies
9.3 How Non-judicial Remedies Function
9.4 Non-judicial Remedy Mechanisms for Use in
abs
Contracts
9.5 How
abs
Contractual and Legislative Requirements Can Enhance Future Remedial Options
9.6 Avoiding the Draconian – “Reasonable and Streamlined” Mechanisms
10 “Avoid Making Legal Assumptions”: The Perils of Relying on a “Governing Law” Clause and/or “Private International Law”
10.1 The “Governing Law” Clauses
10.2 “Private International Law” – A Misunderstood Concept
10.3 The Basic Questions Considered by “Private International Law”
10.4 International Commercial Law
10.5 Impacts of
pil
and International Commercial Law on
abs
Contracts
11 Contract-related Provisions of
abs
Regime Instruments
11.1 Contracts as Tools of the
abs
Regime, Generally
11.2 Components of the
abs
Regime
11.3 Global
abs
Regime Instruments Addressing
abs
Contracts – The Broadest View
11.4 Caveat: Other International Instruments and Regimes of Potential Importance to
abs
Contracts and Their Parties
11.5 Specific Provisions Directly Relevant to Drafting
abs
Contracts
12 The Risks and Benefits of Shortcuts: Models, Forms, Guidelines and Existing-contract Examples
12.1 The Desire for “Model Contracts,” “Model Clauses” and Other Examples in
abs
12.2 Types of Models and Examples and Their Associated Risks
12.3 Finding the Best Model, Form or Example for Your Needs
12.4 Future Developments
13 Conclusion
13.1 Contracts and
abs
13.2 The
abs
Challenges and the Seven Rules of Contracts
13.3 The Quest for Shortcuts
13.4 Making
abs
a Functional and Effective Tool for the Future
Resources Cited
Index
1
1.1 The Contractual Challenge of
1.2 Methodology: The Legal and Factual Analysis Undertaken for This Book
1.3 Getting a Handle on the
1.4 Purpose and Organization of This Book
2 Drafting Functional
2.1 Addressing the Ambiguity of
2.2 Basic Contract Concepts – How Contracts Function
2.3 The Sources of Law for Interpretation and Drafting of
3 Planning and Negotiatingthe Contract
3.1 Preparing to Establish a Contractual Relationship
3.2 Mapping the “Optimal
3.3 Negotiating Strategy
3.4 From Strategy to Binding Contract – Identifying the Specific Situation of the Current Negotiation and Coordinating it with the Strategy
3.5 The First Steps in the Negotiation
3.6
4 Make Sure You Contract with the Right Parties: Addressing the Challenges of Contracts with Companies and other Entities
4.1 An Example: What it Means to “Contract with the Right Parties”
4.2 “Legal Personality” – Basic Criteria for Legally Binding Any Entity
4.3 Ability to Perform: Addressing the Nature and Stability of Corporate Entities
4.4 Contracting with the Right Individuals – Legally Recognized Capacity and other Issues
4.5 Legal Authority to Act on Behalf of a Party
4.6 Including and Properly Binding All Necessary Parties
5 “Be Specific and Concrete”: The Subject Matter (Res), Functional Clauses and Objective of the Contract
5.1 Contractual Precision – Ambiguity Kills Contracts
5.2 The Operative Provisions / What Does the Contract Do?
5.3 What is Transferred? – The Need for Precision about the Res
5.4 Obligation/Action Clauses: The Duties and Expectations of the Parties
5.5 Triggering Contractual Rights and Duties
5.6 “Objective” or “Purpose” Clauses
5.7 Change of Use or Intent
6 “Manage and Address Major Risks”: The “Third-party Transfer” Challenge
6.1 The Transfer of Genetic Resources,
6.2 Laws and Consequences Regarding Transfers of Resources and Rights
6.3 Assessing the Parties’ Options Regarding Third-party Transfer
6.4 Key Legal Elements of a Transfer Clause
6.5 Advice on Drafting Provisions Addressing Third-party Transfer
6.6 Special Third-party Transfer Risks
7 “Know the Possibilities and Limitations of Contract Law”: Contract Validity, Equity and Enforceability
7.1 Valid or Void – What Makes Your Document a Contract?
7.2 Basic Concepts and Principles of Contractual Functionality
7.3 Elements of Validity for
7.4 Effect of Contract Invalidation
7.5 Valid but Unenforceable – What Can be Done with “Soft” Obligations?
7.6 Contract Classification Issues
7.7 Industry Standards
8 “Expect the Best; Plan for the Worst”: Contract Provisions That Improve Enforceability and Address Contract Amendment
8.1 Why Not Wait until Enforcement is Needed? Addressing Enforceability in the Text
8.2 Types of Legal Remedies Available and How the Contract Can Affect Them
8.3 Enforcement-related Provisions in
8.4 Practical and Procedural Elements Relating to Enforcement of
8.5 Arbitration and Mediation Clauses
8.6 Parties That are Not Parties: Other Persons or Entities that Might Seek Enforcement
9 “Protect Contractual Expectations to Minimize the Need for Litigation”: Guarantees, Incentives, and Other Security Arrangements
9.1 The Advantage and Disadvantage of Non-judicial Remedies
9.2 The Contractual Balance and the Role of Non-judicial Remedies
9.3 How Non-judicial Remedies Function
9.4 Non-judicial Remedy Mechanisms for Use in
9.5 How
9.6 Avoiding the Draconian – “Reasonable and Streamlined” Mechanisms
10 “Avoid Making Legal Assumptions”: The Perils of Relying on a “Governing Law” Clause and/or “Private International Law”
10.1 The “Governing Law” Clauses
10.2 “Private International Law” – A Misunderstood Concept
10.3 The Basic Questions Considered by “Private International Law”
10.4 International Commercial Law
10.5 Impacts of
11 Contract-related Provisions of
11.1 Contracts as Tools of the
11.2 Components of the
11.3 Global
11.4 Caveat: Other International Instruments and Regimes of Potential Importance to
11.5 Specific Provisions Directly Relevant to Drafting
12 The Risks and Benefits of Shortcuts: Models, Forms, Guidelines and Existing-contract Examples
12.1 The Desire for “Model Contracts,” “Model Clauses” and Other Examples in
12.2 Types of Models and Examples and Their Associated Risks
12.3 Finding the Best Model, Form or Example for Your Needs
12.4 Future Developments
13 Conclusion
13.1 Contracts and
13.2 The
13.3 The Quest for Shortcuts
13.4 Making
Resources Cited
Index
Negotiators, implementers and legal advisors working with the Convention on Biological Diversity or Nagoya Protocol; lawyers interested in biotechnology and contract law. Scholars wanting insight to a novel contract arena.