Part IV Commercial and Legal Systemic Issues


One of the most basic activities of The ABS Project has been the analysis of critical legal issues that will affect the regime's ability to operate as a legally binding and enforceable system, whether through legislation or contracts. These ‘classic’ legal analyses have focused on identifying the legal problems which have caused the overwhelming majority of national legislative draftsmen and Attorneys General to conclude that it is not possible at present to implement ABS through legislation or through any form of regulatory instrument. Without such action, it is not possible for national governments to provide legal guidance to judges, arbitrators and parties to implement ABS as a legally functional regime. Chapters 811 present an initial sweep of the most important legal obstacles to functional ABS – the basic problem of legal certainty (Chapter 8), the challenge of identifying which actions constitute misappropriation of genetic resources and which are the basis of unjustified claims against ABS-compliant users (Chapter 9), and the difficulties that obstruct the ABS system from relying on conventional legal remedies (arbitration and the courts) as tools for ensuring that ABS contracts and commitments are met (Chapter 10).

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