“Drafting Successful Access and Benefit-sharing Contracts” builds on the fact that the international negotiations in Access and Benefit Sharing are (at least mostly) over, so now the time has come to accept that the Nagoya Protocol and the binding obligation in the Convention on Biological Diversity are what we have got, and move forward and find the best ways to use them effectively. The time is now to create and use practical tools that will work to develop and implement a functional abs system at every level. The abs Contract is one of those tools. abs Contracts are, at base, contracts bound by contract law. There may not be much formal “abs law” that deals with abs contracts as yet, but the principles of contract law are very detailed and well established in every country.

Most abs contracts are “international contracts” (contracts in which at least one key element is found in more than one country). After hundreds of years of legal development in addressing international contracts, there is still no uniform global contract law. As a new area of contract law comes into being, it is common for special rules and practice within that area to develop on a contract-by-contract basis. This process may happen quickly or slowly, depending on many factors, including

  1. (a)How many contracts are written per year in that area;
  2. (b)How much information becomes public regarding the contracts as they are written;
  3. (c)Whether and how those contracts require official interpretation (arbitration, renegotiation, litigation) that is known publicly; and
  4. (d)How many of those contracts have been completed to the satisfaction of all parties.

At present, there are few abs contracts in existence and still fewer that have been completed. Public information is limited, especially regarding the resolution of conflicts or enforcement. This book uses the authors’ experience in the negotiation of abs-related contracts and their in-depth knowledge related to natural resource contracts in general, supplemented by research in contract legal issues around the world, both at national and international levels.

On the basis of that foundation, “Drafting Successful Access and Benefit-sharing Contracts” provides the reader with a strong foundation of the manner in which the most basic aspects of contract law should be applied to the drafting of abs contracts. The authors realize that new abs contracts are arising daily, and that over the next few years it is likely that some aspects of abscontracts will become recognized standards for the development of abs contracts. The principles expressed in this book, will continue to provide a basic underpinning enabling negotiators, drafters, parties, arbitrators and judges to interpret the application of those new standards, as well as to help in the development of this new and important contractual area.

The research behind this monography has been possible by grants from the Norwegian Research Council through two research projects: Biotechnology in Agriculture and Aquaculture – Effects of Intellectual Property Rights in the Food Production Chain (project number 220630/O70) and Exploring Legal Framework for Marine Bioprospecting and Innovation (project number 208543). It has also been supported by the abs Capacity Development Initiative, and is written with a view to the needs of strengthening capacity to negotiate and draft better contracts.

We want to thank everyone who have attended trainings and consultations, and sharpened your understanding of abs and the role of contracts during the last decades.

The Fridtjof Nansen Institute, Polhøgda

June 2017