The Private International Law of Access and Benefit-Sharing Contracts

Abstract

This chapter considers the public—private international law interplay in the context of access and benefit-sharing (ABS) for genetic resources (GRs) and associated traditional knowledge (TK). The public international ABS framework, primarily via the Convention on Biological Diversity and its Nagoya Protocol, obliges contracting parties to ensure that access to GRs and TK is based on prior informed consent (PIC) and based on mutually agreed terms (MAT), and that benefits arising out of the utilization of GRs and TK are shared. This public law framework however leaves it to private ordering via ABS contracts between providers and users to determine nature and scope of benefit-sharing. And while the public law framework sets out a basic “enforcement” structure for ensuring that access is based on PIC and that MAT have been established, enforcing benefit-sharing commitments in ABS contracts is up to providers and users, relying on private law mechanisms. Because of the cross-border nature of most of the provider-user relations, enforcing ABS contracts raises complex questions on the jurisdiction of courts or arbitration tribunals, applicable law, and the enforcement of judgments or arbitral awards. This chapter reviews these private international law questions in light of the normative guidance the public international law ABS framework offers.