Nagoya, ABS and Dispute Resolution Addressing the space of Private International Law Sai Ramani Garimella Faculty of Legal Studies
Nagoya Ensuring Legal Certainity attempts at greater legal certainty and transparency for both providers and users of genetic resources by: Establishing more predictable conditions for access to genetic resources. Helping to ensure benefit-sharing when genetic resources leave the country providing the genetic resources
But, why Nagoya Provider countries insisted upon ABS/PIC treaty provisions and a new Disclosure of Origin (DOO) patentability requirement CBD Implementing Legislations in various countries reflected diversity in the methodology for ABS/PIC provisions, often reflecting a sovereignty-centric idea rather than commercialization and retaining/reverting the benefit to the communities that possessed these rights Bonn Guidelines on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from their Utilization in 2002 attempted to address the concern of absence of guidance in the CBD on methodology for accomplishing the fair and equitable benefit sharing
Nagoya what it specifies Article 5 - the benefits arising from genetic resource utilization shall be shared in a fair and equitable way with the Providing Party and shall be upon mutually agreed terms (MAT). Article 6. Access to Genetic Resources 3. Pursuant to paragraph 1 above, each Party requiring prior informed consent shall take the necessary legislative, administrative or policy measures, as appropriate, to: (g) Establish clear rules and procedures for requiring and establishing mutually agreed terms. Such terms shall be set out in writing and may include, inter alia: (i) A dispute settlement clause; (ii) Terms on benefit-sharing, including in relation to intellectual property rights; (iii) Terms on subsequent third-party use, if any; and (iv) Terms on changes of intent, where applicable.
Nagoya s MAT the transnational contractual space APPLIES FOR ACCESS PERMIT USER PROVIDER - the NBA PIC(may engage in consultation with the stakeholders (S.41(2)) Offers the MAT Mutually agreed terms (MAT) (formal validity of a contract for national regulation) much vagueness in the content of MAT Contract
Nagoya the PIL space Article 18. Compliance with Mutually Agreed Terms 1. In the implementation of Article 6, paragraph 3 (g) (i) and Article 7, each Party shall encourage providers and users of genetic resources and/or traditional knowledge associated with genetic resources to include provisions in mutually agreed terms to cover, where appropriate, dispute resolution including: (a) The jurisdiction to which they will subject any dispute resolution processes; (b) The applicable law; and/or (c) Options for alternative dispute resolution, such as mediation or arbitration. 2. Each Party shall ensure that an opportunity to seek recourse is available under their legal systems, consistent with applicable jurisdictional requirements, in cases of disputes arising from mutually agreed terms. 3. Each Party shall take effective measures, as appropriate, regarding: (a) Access to justice; and (b) The utilization of mechanisms regarding mutual recognition and enforcement of foreign judgments and arbitral awards.
Nagoya - Jurisdiction Contracts with foreign element jurisdiction when defendant is present (or) Nagoya, A 18 - Forum courts consistent with jurisdictional requirements - do they have jurisdiction? A 18 Forum Courts which Court within the hierarchy NGT in India? Immediate Interim Measures is NGT the right forum? enforceability of a jurisdiction-related order from NGT?
Nagoya Safeguard clause & Access to Justice Jurisdiction procedural rights Access to Justice substantive rights -underpinned by notions of social equity and translated into legal rights,ex., a right to support in mitigating costs of litigation, access to the tribunal/experts and the information/evidence that has been placed for consideration at the forum. Hague Convention on International Access to Justice, 1980 Nagoya should these two be seen differently? Read with the safeguard clause could it allow forum courts (provider country) an unlimited right to exercise jurisdiction
MAT the Applicable Law Scenario 1 MAT included an express/implied choice of law Applicable law the law of the provider country in conflict with the mandatory norms foreign to the lex contractus (but affecting the contract) could make it impossible to apply the chosen applicable law Applicable law foreign law mandatory norms of the provider country may prevent the application of such foreign law Either situations the orders of such forum may be difficult to enforce
MAT The Applicable Law Scenario 2 MAT did not include a choice of Law IUCN Guidance Applicable law (Subparagraph (b)): This refers to the law of a particular country that will govern the dispute. It should recognized that where the parties of an agreement have not selected a governing law and it cannot be inferred from the circumstances, common law courts will apply the system of law with which the transaction has its closest and most real connection or the proper law of the contract. Diversity in the application of the objective choice Rule - The Sulamerica rule and the diversity in national courts interpretation
A 18 (3) (b) Recognition and Enforcement The utilization of mechanisms regarding mutual recognition and enforcement of foreign judgments and arbitral awards. India Civil Procedure Code listed criteria for R & E allows courts to go into substantive questions related to foreign court orders re-open the dispute? Reciprocity of R & E of Foreign Court Orders 11 countries (most of them are not known to have made any user access permit related applications under Nagoya) Indian courts orders to be applied in foreign courts accession to HCCCA, 2005 could be a way forward MAT could include an arbitration clause for foreign element contracts New York Convention could be recourses
MAT a mutually acceptable Dispute Resolution? Institutional Arbitration PCA Optional Rules for the Arbitration of Environmental Disputes, 2001 Why arbitration - Helps avoid State-centric international dispute resolution - Addresses the unique feature of environmental disputes multiple stakeholders - Characterisation of an environmental dispute cross-referencing it with the contractual nature of the ABS
MAT How PCA Rules can help Any combination and number of parties to a dispute NGOs, NSAs (community interest groups) - multi-party disputants Procedural Flexibility Availability of experts for tribunal composition Enforcement via the New York Convention with 158 members Allows Amicus curiae submissions - Role for Advocacy Groups Costs of Arbitration PCA Fund access available for member- Parties India is a member!!!
Experience with the PCA Rules Promoted for action under the Kyoto Protocol Annex on Arbitration under Article 14 International Emissions Trading Agency - Model Emissions Reduction Purchase Agreements Protocol on Civil Liability and Compensation for Damage Caused by The Transboundary Effects of Industrial Accidents on Transboundary Waters, 2003 (Article 14) In the event of a dispute between persons claiming for damage pursuant to the Protocol and persons liable under the Protocol, and where agreed by both or all parties, the dispute may be submitted to final and binding arbitration in accordance with the Permanent Court of Arbitration Optional Rules for Arbitration of Disputes Relating to Natural Resources and/or the Environment.