Preface IX
1
abs and Contracts 1
1.1
The Contractual Challenge of abs 2
1.2
Methodology: The Legal and Factual Analysis Undertaken for This Book 12
1.3
Getting a Handle on the abs Concept 19
1.4
Purpose and Organization of This Book 20
2
Drafting Functional abs Contracts: How Contracts Can Achieve Reasonable abs Objectives 22
2.1
Addressing the Ambiguity of abs with the Specificity of Contact Law 23
2.2
Basic Contract Concepts – How Contracts Function 33
2.3
The Sources of Law for Interpretation and Drafting of abs Contracts 40
3
Planning and Negotiating the Contract 52
3.1
Preparing to Establish a Contractual Relationship 53
3.2
Mapping the “Optimal abs Contract” from the Negotiator’s Perspective 53
3.3
Negotiating Strategy 60
3.4
From Strategy to Binding Contract – Identifying the Specific Situation of the Current Negotiation and Coordinating it with the Strategy 63
3.5
The First Steps in the Negotiation 71
3.6
caveat: The Illusionary Two-step Contractual Approach 74
4
“Make Sure You Contract with the Right Parties”: Addressing the Challenges of Contracts with Companies and other Entities 80
4.1
An Example: What It Means to “Contract with the Right Parties” 82
4.2
“Legal Personality” – Basic Criteria for Legally Binding Any Entity 87
4.3
Ability to Perform: Addressing the Nature and Stability of Corporate Entities 95
4.4
Contracting with the Right Individuals – Legally Recognized Capacity and other Issues 96
4.5
Legal Authority to Act on Behalf of a Party 101
4.6
Including and Properly Binding All Necessary Parties 106
5
“Be Specific and Concrete”: The Subject Matter (Res), Functional Clauses and Objective of the Contract 113
5.2
The Operative Provisions / What Does the Contract Do? 116
5.3
What is Transferred? – The Need for Precision about the Res 118
5.4
Obligation/Action Clauses: The Duties and Expectations of the Parties 123
5.5
Triggering Contractual Rights and Duties 138
5.7
Change of Use or Intent 146
6
“Manage and Address Major Risks”: The Third-party Transfer Challenge 157
6.1
The Transfer of Genetic Resources, atk or Preliminary Research Results to Third Parties 158
6.2
Laws and Consequences Regarding Transfers of Resources and Rights 161
6.3
Assessing the Parties’ Options Regarding Third-party Transfer 164
6.4
Key Legal Elements of a Transfer Clause 167
6.5
Advice on Drafting Provisions Addressing Third-party Transfer 175
6.6
Special Third-party Transfer Risks 191
7
“Know the Possibilities and Limitations of Contract Law”: Contract Validity, Equity and Enforceability 197
7.1
Valid or Void – What Makes Your Document a Contract? 197
7.2
Basic Concepts and Principles of Contractual Functionality 198
7.3
Drafting Issues of Validity for abs Contracts 206
7.4
Effect of Contract Invalidation 222
7.5
Valid but Unenforceable – What Can be Done with “Soft” Obligations? 223
7.7
Industry Standards 226
8
“Expect the Best; Plan for the Worst”: Contract Provisions that Improve Enforceability and Address Contract Amendment 229
8.1
Why Not Wait until Enforcement Is Needed? Addressing Enforceability in the Text 230
8.2
Types of Legal Remedies Available and How the Contract Can Affect Them 232
8.3
Enforcement-related Provisions in abs Contracts 241
8.4
Practical and Procedural Elements Relating to Enforcement of abs Contracts 254
8.5
Arbitration and Mediation Clauses 262
8.6
Parties that Are Not Parties: Other Persons or Entities that Might Seek Enforcement 263
9
“Protect Contractual Expectations to Minimize the Need for Litigation”: Guarantees, Incentives, and Other Security Arrangements 268
9.1
The Advantage and Disadvantage of Non-judicial Remedies 269
9.2
The Contractual Balance and the Role of Non-judicial Remedies 270
9.4
Non-judicial Remedy Mechanisms for Use in abs Contracts 276
9.5
How abs Contractual and Legislative Requirements Can Enhance Future Remedial Options 284
9.6
Avoiding the Draconian – “Reasonable and Streamlined” Mechanisms 290
10
“Avoid Making Legal Assumptions”: The Perils of Relying on a “Governing Law” Clause and/or “Private International Law” 293
10.1
The “Governing Law” Clauses 294
10.2
“Private International Law” – A Misunderstood Concept 297
10.3
The Basic Questions Considered by “Private International Law” 299
10.4
International Commercial Law 300
10.5
Impacts of pil and International Commercial Law on abs Contracts 316
11
Contract-related Provisions of abs Regime Instruments 321
11.1
Contracts as Tools of the abs Regime 322
11.2
Components of the abs Regime 323
11.3
Global abs Regime Instruments Addressing abs Contracts – The Broadest View 324
11.4
Caveat: Other International Instruments and Regimes of Potential Importance to abs Contracts and Their Parties 328
11.5
Specific Provisions Directly Relevant to Drafting abs 332
12
The Risks and Benefits of Shortcuts: Models, Forms, Guidelines and Existing-contract Examples 364
12.1
The Desire for “Model Contracts,” “Model Clauses” and Other Examples in abs 364
12.2
Types of Models and Examples and Their Associated Risks 370
12.3
Finding the Best Model, Form or Example for Your Needs 376
12.4
Future Developments 384
13
Conclusion 389
13.1
Contracts and abs 390
13.2
The abs Challenges and the Seven Rules of Contracts 394
13.3
The Quest for Shortcuts 396
13.4
Making abs a Functional and Effective Tool for the Future 396
Resources Cited 399
Index 413