Drafting Successful Access and Benefit-sharing Contracts


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.

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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.

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

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.
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