Contracting for ABS : the legal and scientific implications of bioprospecting contracts

Abstract

The designation of geographical entities in this book, and the presentation of the material, do not imply the expression of any opinion whatsoever on the part of IUCN or the German Federal Ministry for Economic Cooperation and Development (BMZ) concerning the legal status of any country, territory, or area, or of its authorities, or concerning the delimitation of its frontiers or boundaries.The views expressed in this publication do not necessarily reflect those of IUCN or BMZ. This publication has been made possible in part by funding from BMZ.

Role of marine bioprospecting contracts in developing access and benefit sharing mechanism for marine traditional knowledge holders in the pharmaceutical industry

“…Contracts will play a major role in developing the concept of 'mutually agreed terms' for marine bioprospecting activities. In order to make any arrangement binding it is important that a contract is clearly written and is enforceable indicating that contracts and laws of contracts are deeply integrated with the complex benefit sharing system (Young, 2009;Geary et al, 2013). The territorial nature of the laws further adds to the complexity of system of access and benefit sharing.…”

“…Similarly, these terms and conditions pertaining to access, various societal benefits such as training to the community, funding for conservation of biodiversity, or monetary benefits and the mode of payment can also be incorporated in the marine bioprospecting contracts. Most of the bioprospecting contracts are based on milestone payment based system (Young, 2009) that can serve as a promising tool for benefit sharing by the traditional knowledge holders (generally indigenous community) and the State in case of any project failure. One time lump sum bioprospecting fees serves not only as an impediment to the company that wishes to obtain samples but also fails to serve as an incentive for the traditional knowledge holders or the State whose resources are being used.…”

The Four-Sided Triangle of Ethics in Bioprospecting: Pharmaceutical Business, International Politics, Socio-Environmental Responsibility and the Importance of Local Stakeholders

“…In the literature of bioprospecting ventures, usually three main actors and the perspectives are represented (Young 2009). These include the pharmaceutical or biotechnology firms, the national governments of the source countries, and also a socio-environmentally derived opposition.…”

“…A thorough search of peer-reviewed ethics journals results in a handful of related yet indirect publications on the subject (Blowfield 2005;Boyd et al 2003;Hayden 2007;Isaac and Kerr 2004;Lanoszka 2003;Millum 2010;Rausser and Small 2000;Safrin 2004;Schuklenk and Kleinsmidt 2006;Warner 2006). Few managers or legal advisors have experience, let alone expertise, in bioprospecting agreements in the burgeoning industry of biotechnology and pharmaceuticals (Young 2009). While companies may be driven by profit motives, they must also adhere to strict healthcare and medical research standards in their research.…”

“…In effect, we will present the positions of three sets of stakeholders that are most often included in legal contractual discourse involving bioprospecting (Isaac and Kerr 2004;Secretariat of the CBD 2011;Young 2009). These include 1) the biotechnological and pharmaceutical companies, 2) the national governments of source countries, and 3) the socio-environmental perspective of special interest groups, non-governmental organizations (NGOs) and researchers from academic institutions or small research groups.…”