Introduction: Inquiring into the Legal and Scientific Implications of Bioprospecting Contracts

There has been a temptation in policy discussions to think of development and the preservation of the environment in antagonistic terms... We have to move away from the limited – and limiting – idea that the environment is basically in conflict with development.

– Professor Amartya Sen2

Contracts and contract law are deeply integrated into ABS. To address them, this book is divided into two very separate component parts.

Part I focuses on the creation of ABS contracts, with particular attention to the factors and issues which cause such contracts to be very different from other types of contracts. Its goal is to provide a unified starting point from which those whose primary expertise is in commercial and contractual law and practice can gain an understanding of the ABS concept and the special concerns of contracts for genetic resources. At the same time Part I should allow ABS experts and bioprospectors to gain some insight into contract law and the reasons that ABS contracts adopted have later been discovered to be legally flawed and un-implementable as commercial instruments. Besides the difference, Part I also notes certain similarities which exist between ABS contracts and commercial contracts used in other fields.

The authors do not wish to suggest that a contract that does not meet basic legal standards is not valid. So long as there is good will among the parties to a contract, it does not matter whether its provisions are legally enforceable or not. In the current climate of uncertainty and in some cases distrust between providers of genetic resources and various types of users, however, it is important for all parties to find a way of clarifying the meaning and requirements of their contracts and ensuring that those documents are legally valid. Such certainty will enable all parties to avoid misunderstandings, litigation and other conflict.

Chapters 1 and 2 seek to provide a basis for approaching these two aspects of ABS in an integrated way. In Chapter 3, a more immediately practical discussion uses examples from a collection of actual ABS contracts, to provide some ideas for negotiators regarding some of the options available to them. While it does not attempt to identify ‘best practices’ or provide some standard or model for negotiation, Chapter 3 is offered in the hope that negotiations will be improved by a broader knowledge of the provisions actually being used.

Part I offers an analysis of, and lessons learned from, a wide range of existing ABS contracts and seeks to present these lessons in systematic form according to clearly defined categories of contractual issues which have been customized according to their relevance for ABS contracts.

Following this analysis Part II (Chapters 47) begins the books attempt to provide a better understanding of many of the possible scientific bases on which ABS contracts may be built. In this part, the objective was satisfied through first-hand accounts. In early 2005, key scientists and lawyers from three organizations involved in bioprospecting practices were asked to develop three in-depth reports (Chapters 5 through 7) about scientific issues associated with bioprospecting contracts. Specific issues that all of the experts were asked to discuss included:

Chapter 4 provides an overview of science and technology in the context of bioprospecting projects implemented since the CBD came into force and presents a comparative analysis of key.

Finally, we note that this book includes statements and opinions from numerous different authors, which are not in all cases shared by all. In all cases, we agree that the most important aspect of this work is its ability to provide critical information of value to all parties and other stakeholders, and sincerely hope that it has done so.

Shakeel Bhatti
Santiago Carrizosa
Patrick McGuire
Tomme Young

June 2009

2 Address to the 22d UNEP Governing Council, February 2003.

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