Article 12 – Facilitated access to plant genetic resources for food and agriculture within the Multilateral System
FAO Conference Resolution 7/93, which established the negotiations to revise the International Undertaking, noted that “the Fourth Session of the FAO Commission on Plant Genetic Resources [had] agreed that conditions of access to plant genetic resources that needed further clarification”. A significant role of the Treaty is to make easy (to expedite or to make routine) all access to PGRFA of crops included within the Multilateral System. In the words of the Treaty, “facilitated” access. Article 12 specifies the modalities for this facilitated access.
The negotiation of these provisions was difficult and was characterized by the need to maintain a balance between the facilitation of access to PGRFA and benefit-sharing. They were also characterized by the desire of a number of delegations to ensure that facilitated access should be restricted to access for the purposes of research, breeding and training for food and agriculture, and should not in any way extend to access for chemical, pharmaceutical or other non-food/feed industrial purposes. There was also some tension in the negotiations between the need to ensure that the procedures for access are indeed designed to facilitate and expedite access transactions, without the need to track individual accessions, and the need to ensure that the obligations under the Multilateral System can be passed on to other recipients and can be enforceable against such recipients. Finally there was the overriding need to ensure that the terms and conditions under which facilitated access is granted are clear and definite and to avoid some of the ambiguities present in the International Undertaking.102
12.1 The Contracting Parties agree that facilitated access to plant genetic resources for food and agriculture under the Multilateral System, as defined in Article 11, shall be in accordance with the provisions of this Treaty.
The statement that facilitated access to these plant genetic resources is to be “in accordance with the provisions of this Treaty” stresses the special nature of the regime established by the Treaty. In other words, for these PGRFA facilitated access is to be in accordance with the terms set out in the Treaty, which themselves are an implementation on a multilateral basis of the requirements of Article 15 of the CBD. By this, it might be assumed that we do not need to determine “mutually agreed terms” or require “prior informed consent” on a case by case basis: the terms set out in the Treaty are themselves the mutually agreed terms and constitute prior informed consent, established on a multilateral basis. Article 12.1 also implies that the provisions relating to facilitated access to PGRFA under the multilateral system should not be taken in isolation, but should take into account all the relevant provisions of the Treaty, including, of course, the benefit-sharing provisions provided for in Article 13.
12.2 The Contracting Parties agree to take the necessary legal or other appropriate measures to provide such access to other Contracting Parties through the Multilateral System. To this effect, such access shall also be provided to legal and natural persons under the jurisdiction of any Contracting Party, subject to the provisions of Article 11.4.
Article 12.2 lays particular stress on legal measures, implying that in some countries (but not all) new or revised legislation or regulations may be required. Facilitated access is to be provided to other Contracting Parties and to legal and natural persons under the jurisdiction of any Party. This means that access will be provided to individuals, as well as to institutions or organizations that have a “legal personality”, such as private companies, civil society organizations, etc. that are located in the territory of a Contracting Party, or organized and operating under its jurisdiction. As noted above, the provision of facilitated access for legal and natural persons is subject to a review by the Governing Body of the progress in including other PGRFA (e.g. material in private genebanks) in the Multilateral System.
It is to be noted that this provision does not prevent Contracting Parties from granting access to non-Parties to the Treaty. Moreover, a decision by the Governing Bodies to discontinue facilitated access to private persons and businesses, pursuant to Article 11.4, does not mean that all access should in the future be denied to them. The consequence, however, would be that such access would not be facilitated within the meaning of the Treaty, and not necessarily accord with its terms.
The reference to providing facilitated access to other Contracting Parties and persons and legal entities under the jurisdiction of any Contracting Party also raises a question of interpretation as to whether material obtained domestically under the Multilateral System would be subject to the conditions set out in Article 12.3 and the benefit-sharing arrangements set out in Article 13. Certainly there is no doubt that international transfers, i.e. requests from a person in one country to a genebank in another country, would be so covered. But what is the situation if a natural person in one country requests facilitated access to material in a genebank in the same country? And what is the situation, for example, if a researcher in an IARC accesses material listed in Annex I from the genebank of the same IARC?
Normally international treaties govern relations between Contracting Parties and do not create rights and obligations as between Contracting Parties and their own nationals, unless the particular treaty so expressly states. In this case, the wording of Article 12.2 requires facilitated access to be provided to legal and natural persons under the jurisdiction of “any” Contracting Party, (i.e. including legal and natural persons under the jurisdiction of the Contracting Party providing access) and does not limit the rights of access to legal and natural persons under the jurisdiction of “any other” Contracting Party. Under the Vienna Convention on the Law of Treaties, treaties are to be interpreted “in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”103 Quite apart from the literal meaning of Article 12.2, it could well be argued, in this particular case, that to interpret domestic access transactions as being outside the coverage of the Multilateral System would create a “loophole” in the Treaty that would defeat the objectives of the Treaty as set out in Article 1. If recipients of PGRFA were able to demand access to Annex I materials from their own national genebanks outside the framework of the Treaty and then export those materials to other companies, or their own subsidiaries, in other jurisdictions free of all obligations under the Multilateral System, then the whole Multilateral System would soon become unworkable.
However, despite the above, the situation with respect to domestic transfers remains unclear and is being interpreted in different ways by various Contracting Parties.
The situation with respect to the use by IARC researchers of material within the same IARC's genebank is also less than clear. The objectives of the Treaty would favour treating this use as an accession obtained under the Multilateral System. That interpretation, however, is less clearly supported by the actual words used in Article 12.2. In this case the accession is not obtained by a separate entity, but by the IARC itself, albeit of material “held in trust” for the international community. It will be interesting to see how the Contracting Parties, and the IARCs themselves, implement these provisions in practice. Similar considerations would be applicable to the use by Government plant breeders of materials maintained in national government genebanks.
Under the Treaty, a Contracting Party is obliged to provide access to PGRFA in the multilateral system when requested to do so by another Contracting Party, when requested by any legal or natural person under the jurisdiction of a Party, or when requested by a IARC or other international institution that has signed an agreement with the Governing Body under Article 15. These then are the cases in which facilitated access must be accorded as set out in the Treaty. As noted above, this does not preclude Contracting Parties from granting access to other materials in other cases, nor does it preclude a Contracting Party from applying the same terms and conditions to those other materials and cases. In practice, and in order to apply a single set of conditions for all transfers, parties and international institutes could decide to provide all material according to the terms of the facilitated access in Articles 12.3 and 12.4, thus both simplifying the administration of access and optimizing the sharing of benefits on a multilateral basis. Given the benefits of access to as broad a range of PGRFA as possible, this should be strongly encouraged.
The agreed conditions set out in Article 12.3 apply to “facilitated access” under the Multilateral System. The conditions for such access are set out in the eight paragraphs of Article 12.3. As noted above in the commentary on Article 9 on Farmers' Rights, the question arises as to whether these conditions are exclusive or whether new conditions could be imposed. Certainly in so far as conditions outside the Treaty are concerned, these are excluded by the wording of Article 12.1., i.e. the agreement that facilitated access under the Multilateral System shall be in accordance with the provisions of the Treaty. In so far as other provisions of the Treaty are concerned, as for example the right of farmers to participate equitably in the sharing of benefits arising from the utilization of PGRFA, this is a matter for interpretation by the Contracting Parties themselves, although it seems clear as a general principle that the Treaty intended that benefit-sharing under the Multilateral System should be on a multilateral basis and not on a bilateral one.
Articles 12.3(a) through (h) specify conditions under which access is provided and identify circumstances under which access might be denied legitimately. These paragraphs are critical to the working of the Multilateral System. In general, they acknowledge the applicability of intellectual and other property rights over the material. They call for Contracting Parties to make available not just the genetic material, but also associated, descriptive, non-proprietary information, including information on the history of the accession.
However, it is important to note that the paragraphs do leave open some practical implementation points. These will need to be resolved by the Governing Body.
(a) Access shall be provided solely for the purpose of utilization and conservation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharmaceutical and/or other non-food/feed industrial uses. In the case of multiple-use crops (food and non-food), their importance for food security should be the determinant for their inclusion in the Multilateral System and availability for facilitated access.
It was agreed that material made available through the multilateral system should be “provided solely for the purpose of utilization and conservation for research, breeding, and training” for food and agriculture. It is therefore fundamental to note that it is the use of the material, and not the material itself, that will decide whether the Multilateral System will apply. This is particularly relevant in the case of multi-use crops. The paragraph clearly states that chemical, pharmaceutical and other industrial uses beyond food and animal feed are excluded from the facilitated access under the multilateral system. Consequently, those seeking access for such purposes will need to make separate arrangements. However, the text does not exclude the development of other agreements for particular uses, or regional agreements covering such uses. This means that holders of PGRFA under the Multilateral System can supply them for purposes other than those stipulated by the Treaty, including industrial uses, but in such cases the preferential conditions provided for under the Multilateral System will not automatically apply.
Article 12.3(a) does not specifically allow nor sanction access for the purpose of direct use by farmers for cultivation. However, the negotiators clearly did not want genebanks to compete with ordinary distribution of seed or propagating material to farmers, and such access for direct use must be considered to be out of the ordinary. This situation occurs, for example in cases where an accession is desired for a particular niche market (a colourful potato, for instance) and no further breeding work is needed, as well as in cases where the crop itself is the subject of little breeding work (e.g., pulses) or to enrich the genetic diversity in farmers' fields for subsequent selection. Article 12.3(a) does not expressly provide for facilitated access for direct use or multiplication. This omission may be interpreted as an intentional exclusion of such a use from the scope of facilitated access under the Multilateral System. The situation is of particular significance for, but by no means unique to, the IARCs of the CGIAR. Currently, the MTA used under the FAO-CGIAR in-trust Agreements allows for access for such purposes. In adopting the interim MTA to be used by the IARCs under the in-trust Agreements with FAO, the Commission, at its Ninth Session (2002), agreed on the following footnote:
This does not prevent the recipients from releasing the material for purposes of making it directly available to farmers or consumers for cultivation, provided that the other conditions set out in this MTA are complied with.
A possible interpretation, that would not run counter to either the actual wording of the Article 12.3(a) or the objectives of the Treaty, could be that while direct use for cultivation is not a use for which facilitated access can be demanded, this would not prevent the release of material for direct use for cultivation where this is in accordance with the objectives of the Treaty and is necessary for the fulfilment of the mandates of the institutions concerned. This may happen more and more often as genebanks provide a safe haven for material used on-farm that is becoming increasingly threatened.
The last sentence of Article 12.3(a) is a little troublesome. The sentence provides that “In the case of multiple-use crops (food and non-food), their importance for food security should be the determinant for their inclusion in the Multilateral System and availability for facilitated access.” It is strange that this sentence is sited here rather than in Article 11.1, since that provision, too, appears to be dealing with the coverage of the Multilateral System rather than with conditions of facilitated access. In fact the sentence seems to fall somewhere in between the concept of “conditions of access” and that of “coverage”. Perhaps the keyword in the provision is the word “determinant”, which raises the question, “who is to determine that a particular multi-use crop should be in the multilateral System?” If the decision is made at the time of the inclusion of the crop in Annex I, then the decision is made in a collegiate fashion by consensus of the Contracting Parties. If on the other hand the decision is made at the time of a request for the PGRFA in question, then the decision would be made by primarily by the Contracting Party providing the PGRFA in the light of the circumstances of the request. In the context of Article 12.3(a), it would appear that the intent is to leave this decision to the Contracting Party providing the sample, in dialogue with the Contracting Party (or natural or legal person) requesting it. The provisions of Article 12.3(a) presuppose that the PGRFA is included in Annex I and that the last sentence is not intended to be a way to extend that list. It must therefore be seen as a way of reinforcing the provisions of the first sentence of the Article.
(b) Access shall be accorded expeditiously, without the need to track individual accessions and free of charge, or, when a fee is charged, it shall not exceed the minimal cost involved;
Paragraph (b) attempts to ensure the efficient operation of the multilateral system by reducing transaction costs and maintaining speedy access to PGRFA.
The requirement that access be accorded expeditiously requires no comment, beyond indicating that the requirement must be interpreted in a reasonable way. For example, it may 91 be the case that a genebank runs out of material and therefore has to regenerate it before being able to meet supply commitments. This would of course not run counter to the requirement that the access be accorded expeditiously, provided that the delay is reasonable in the circumstances. Nor would the inability to provide samples for reasons of force majeure.
The specific statement that there is no need to track individual accessions requires comment. It was the expectation of many of the negotiators that all PGRFA contained in the Multilateral System would be covered automatically, and that there would be no need to track individual accessions or to provide for any form of MTA. Obligations under the Multilateral System would thus be enforced through national legislation, and not necessarily through a contractual nexus between the holder and recipient of the plant genetic resources. With the decision late in the negotiations to include only material under the management and control of Contracting Parties, and other material put voluntarily into the system, and the adoption of an MTA as the vehicle for imposing obligations, the meaning of this particular requirement seems to have changed somewhat. To a certain extent, the use of MTAs means that individual transfers are automatically formally recorded. Subsequent transfers too will require MTAs. The requirement now apparently means that holders of PGRFA will not be required to track all subsequent transfers of the material accessed. Any “tracking” of the provenance of materials accessed from the Multilateral System will be done where necessary “after the event”, i.e. where a product has been produced that incorporates material access from the Multilateral System, and if and when there is any dispute regarding non-compliance with the terms and conditions of access by subsequent recipients.
With respect to the requirement that access be accorded free of charge, there is general recognition that administrative fees may be charged, but that these should not exceed the costs involved nor constitute a hidden access fee.
(c) All available passport data and, subject to applicable law, any other associated available non-confidential descriptive information, shall be made available with the plant genetic resources for food and agriculture provided;
Paragraph (c) specifies what types of information, in addition to the germplasm, shall be made available.
Passport data is the basic data that describes and identifies the particular material. It will normally include the accession identifier number or other identifier assigned by the donor or collector (or, in the United States' system, the Plant Introduction number); species, subspecies and other taxonomic descriptor; the varietal or local name; the biological status, e.g. cultivated or wild; the providing country or international collection; data such as the geographical location and date of collection and the identity of the collector. A list of minimum passport data is included in the FAO/IPGRI descriptor lists, available through the IPGRI website. This may, however, later be defined in the standard MTA, when adopted.
Other associated available information would normally include characterization information, and evaluation data. These are discussed in the Guide under Article 5.1(e).
The scope of this obligation, however, may be subject to further qualification and definition in the drafting of the standard MTA since providing all relevant descriptive information may be expensive and time-consuming. How the information is to be distributed may also need to be resolved. For example, would a reference to information available on the Internet be sufficient?
In referring to other associated available information, Paragraph (c) makes the qualification that this material is to be made available “subject to applicable law”. The implicit reference here is to any information covered by intellectual property rights. Copyright and trade secret are particularly relevant in the case of evaluation data.
Note that the subject of information exchange is addressed more generally in Article 13.2(a), though not necessarily in the context of individual accessions.
(d) Recipients shall not claim any intellectual property or other rights that limit the facilitated access to the plant genetic resources for food and agriculture, or their genetic parts or components, in the form received from the Multilateral System;
The provision on intellectual property rights in Article 12.3(d) was one of the most controversial points in the Treaty negotiations. During the negotiations, all countries agreed that intellectual property rights, such as patents and Plant Breeders' Rights, should not be applied to the PGRFA in the form that they are actually received from the Multilateral System. A similar provision is contained in the “in-trust” agreements between the FAO and the IARCs. This paragraph is crucial in determining the extent to which intellectual property rights can be applied to material accessed from the Multilateral System. Unfortunately, this provision contains some ambiguities that leave it open to different interpretations. This is largely due to three principal issues:
(1) Intellectual property or other rights that limit the facilitated access...
The provision prohibits the recipients from claiming “intellectual property or other rights that limit facilitated access”. Intellectual property rights would refer to any kind of intellectual property rights, notably including patents, breeders' rights and trade secrets. “Other rights” may include ownership claims with regard to the samples received.
For this purpose, the term “facilitated access” is not defined in the Treaty. But it is clear that facilitated access is the type of access to PGRFA under the Multilateral System that Contracting Parties have bound themselves to provide in accordance with the provisions of Article 12. Article 12.3(a) specifies that facilitated access shall be provided “solely for the purpose of utilization and conservation for research, breeding and training for food and agriculture”. Article 12.3(d) would thus appear not to prohibit recipients from taking out Plant Breeders' Rights and patents that include a breeders' exemption over the material received, as these would not have the effect of limiting further facilitated access to the PGRFA for these purposes.
Of course, intellectual property offices may well normally refuse claims to intellectual property protection over material received from the Multilateral System without any subsequent improvement of the material. But quite apart from that, it seems unlikely that it was the intention of negotiators to allow recipients to seek Plant Breeders' Rights or patents with research exemptions over material received from the Multilateral System in the form received. Certainly it would not be in line with previous practice, as in the MTAs used by the IARCs of the CGIAR under the “in-trust” agreements with FAO. In view of the above, this is a matter that the Governing Body may wish to clarify, perhaps in the context of the adoption of the standard MTA.104
From the structure of the sentence, the prohibition would appear to be not against claiming intellectual property or other rights over the material in the form received from the Multilateral System, but rather against claiming intellectual property or other rights that limit facilitated access to the material in the form received from the Multilateral System.105 If this is the correct interpretation, the implication is that no intellectual property rights can be taken out over the material, or subsequent products derived from that material, if the effect would be reach back and limit facilitated access by others to the original material accessed. Normally, intellectual property rights do not limit such access.
However, the meaning of the sentence does appear to be ambiguous, in that many commentators still view the provision as simply meaning that recipients cannot claim intellectual property rights over the material in the form received from the Multilateral System.
(2) “PGRFA or their genetic parts or components”
In Article 2 of the Treaty, the terms “PGRFA” and “genetic material” are defined. The same cannot be said, however, for the concept of “genetic parts or components”. While unclear, this term would presumably include genes, or any parts thereof, found in the accessed materials.
If this is indeed so, then the wording of Article 12.3(d) would mean that no intellectual property rights may be taken out over the material accessed from the Multilateral System that would limit facilitated access to the original PGRFA, or their genes or any parts thereof, “in the form received” from the Multilateral System.
(3) “In the form received”
The words “in the form received” would obviously mean that intellectual property rights cannot be taken out over the material as received from the Multilateral System, as this would by definition limit facilitated access by other people to that material. Nor could such intellectual property rights be taken out over products derived from that material if the effect of those intellectual property rights is to limit access to the original material, or their genes or any parts thereof, in the form received.
However, what would constitute “in the form received”. Would this exclude genes isolated from the material received, because the PGRFA were not received in the form of isolated genes? Would the addition of a single ‘cosmetic’ gene (e.g. through transformation or conventional back-crossing) to an accession as received be sufficient to differentiate a new product from the material received from the Multilateral System? Is inclusion of an essentially unaltered gene within a new construct sufficient?
Such issues are believed to be addressed in intellectual property law and practice, as reflected in relevant international agreements and national laws. They will presumably be addressed by countries in due course, either in their individual capacities within the context of their own intellectual property rights systems, or acting collectively in the Governing Body or other appropriate international forum. In the meantime, the ambiguities of Article 12.3(d), and in particular of the words “in the form received” have caused a number of developed countries to stress their understanding, at the time of adoption of the Treaty, that the provision does not in any way modify or limit intellectual property rights as protected by existing or specific intellectual property agreements.106 In interpreting this paragraph, however, Contracting Parties may wish to consider the context of Article 12 as a whole, which appears to indicate that the reason for preventing intellectual property rights under certain circumstances is to ensure access for the purpose of research and breeding of the material received.
(e) Access to plant genetic resources for food and agriculture under development, including material being developed by farmers, shall be at the discretion of its developer, during the period of its development;
As with proprietary information, Article 12 provides some exceptions relating to the kinds of genetic materials that must be made available, and when. Genetic material “under development” need not be made available during its period of development, although farmers and breeders can make it available if they choose. While the intention of Article 12.3(e) may be reasonably clear, the wording of this provision is somewhat flexible in that it does not specify what “under development” means, nor does it define when the “period of development” ends. The practical result, nevertheless, appears to be that breeders' lines and farmers' breeding material do not have to be released during the period that they are being developed and retained for use in producing a new variety. The provision follows the concept introduced into the International Undertaking under the third Agreed Interpretation of the International Undertaking in 1991 (Conference Resolution 3/91), which specified in its operative paragraph 2 “that breeders' lines and farmers' breeding material should only be available at the discretion of their developers during the period of development”. In Paragraph (e) the explicit reference to breeders' lines has been dropped, but breeder's lines are of course included in the general reference to PGRFA under development.
(f) Access to plant genetic resources for food and agriculture protected by intellectual and other property rights shall be consistent with relevant international agreements, and with relevant national laws;
Article 12.3(f) ensures that intellectual property rights, such as Plant Breeders' Rights and patents, are not extinguished in PGRFA when they are included in the Multilateral System, or when a sample is acquired from the Multilateral System. Since only PGRFA in the public domain and under the management and control of the Contracting Parties are included automatically in the Multilateral System, this paragraph must refer mainly to material included voluntarily in the Multilateral System by their holders at the invitation and with the encouragement of the Contracting Parties. Intellectual property rights are, in general, rights to control access to or use of material. When a rights holder permits use, that individual can track the material, charge for certain uses, and otherwise control the material. Rights holders can also choose not to exercise these rights. Intellectual property rights are also basically territorial in nature, i.e. they are protected only in the individual jurisdictions where they have been registered. The protection they afford thus depends on national laws. National laws on intellectual property rights, in turn, must conform with relevant international agreements, such as the TRIPS Agreement, for Parties to those agreements. If the recognition of intellectual property rights over PGRFA in the Multilateral System under this paragraph means that the holder of the rights can charge fees to users as part of the exercise of those rights, then the issue arises as to whether this is in conflict with the requirements of Article 12.3(b).
(g) Plant genetic resources for food and agriculture accessed under the Multilateral System and conserved shall continue to be made available to the Multilateral System by the recipients of those plant genetic resources for food and agriculture, under the terms of this Treaty; and
Paragraph (g) specifies that when a recipient has accessed PGRFA for the purpose of conservation, the materials accessed should continue to remain available to the Multilateral System, so long as the recipient has them. It does not, however, place an obligation on recipients to actually conserve material received. Some genebanks or breeders, for example, may discard material that is no longer useful or viable. But if the material is conserved, then it must continue to be available, in the same way as the original accession.
The original intention of this paragraph seems to have been to ensure that material accessed from the Multilateral System should remain in the Multilateral System and not leak out of the system once it enters into private hands. A question arises however as to the extent, or reach, of the obligation. If PGRFA is accessed from the Multilateral System and conserved, then certainly that original material accessed should continue to be made available to the Multilateral System, and made available under the standard MTA. But would this also apply to products derived from the original material accessed, albeit subject to respect of any intellectual or other property rights over those products? The implication of Article 13.2(d)(ii) would appear to be that the continued availability of such products can indeed be denied, although that practice is actively discouraged: Article 13.2(d)(ii) requires a mandatory payment to be made where continued availability of a product incorporating material accessed from the Multilateral System is restricted. Where products are made available, the further question arises as to whether such transfers must be under the standard MTA and subject to the continuing benefit-sharing provisions. The question is important, given that many of the transfers of PGRFA are of material that has already been subject to development, but are not yet in the form of a final product or variety. If the obligation to use the standard Material Transfer Agreement ceases at the time of the production of interim products, then the obligation of benefit-sharing will also not be passed on to the production of final products. On this point, there are different viewpoints. In the end, the question revolves around the interpretation given to the words “transfers of plant genetic resources for food and agriculture to another person or entity, as well as to any subsequent transfers of those plant genetic resources for food and agriculture” in Article 12.4.
(h) Without prejudice to the other provisions under this Article, the Contracting Parties agree that access to plant genetic resources for food and agriculture found in in situ conditions will be provided according to national legislation or, in the absence of such legislation, in accordance with such standards as may be set by the Governing Body
Paragraph (h) confirms that access will also be provided to PGRFA covered by the Multilateral System found in in situ conditions, although such access is to be provided according to national legislation. Presumably such national legislation, in so far as it deals with implementation of the International Treaty, would deal primarily with the mechanics of implementation (countries were concerned, for instance, with the modalities of access to materials in national parks and other protected or vulnerable areas) and with procedures for plant collecting. In any case, the national legislation of Parties to the Treaty in general should not impose new requirements or conditions that are inconsistent with the Treaty and with Article 12 in particular. National legislation pertaining to in situ materials must allow for access if this provision is to be “without prejudice to the other provisions under this Article,” as the paragraph states. Legislation in place in some countries that poses additional conditions on access to PGRFA under the Multilateral System may need to be adjusted, if those conditions are incompatible with the provisions of Article 12.
For the most part, of course, plant material found in in situ conditions, other than those in national parks or other state land, will not typically be qualified as being in the public domain and under the management and control of a Contracting Party, but their status as ‘genetic resources’ under the CBD might be a separate issue. They would thus not be part of the Multilateral System unless included voluntarily by their holders under Article 11.2.
In the absence of any national legislation, or pending the establishment of new legislation, access is to be in accordance with standards set by the Governing Body. What scope any such standards may cover is of course a matter to be decided by the Governing Body. One example of relevant standards is the International Code of Conduct for Plant Germplasm Collecting and Transfer adopted by the FAO Conference in 1993 (see Box 12). Any standards eventually adopted by the Governing Body are likely to influence the pattern of national legislation in the future.
The implementation of this paragraph in national legislation, as well as the rest of Article 12 and 13, is likely to be a delicate task, given that the access and benefit-sharing provisions of the Multilateral System apply only to PGRFA for the purpose of utilization and conservation for research, breeding and training for food and agriculture. In some cases the same genetic resources may very well be subject to different access regimes depending on the uses for which those genetic resources are being accessed.
12.4 To this effect, facilitated access, in accordance with Articles 12.2 and 12.3 above, shall be provided pursuant to a standard material transfer agreement (MTA), which shall be adopted by the Governing Body and contain the provisions of Articles 12.3a, d and g, as well as the benefit-sharing provisions set forth in Article 13.2d(ii) and other relevant provisions of this Treaty, and the provision that the recipient of the plant genetic resources for food and agriculture shall require that the conditions of the MTA shall apply to the transfer of plant genetic resources for food and agriculture to another person or entity, as well as to any subsequent transfers of those plant genetic resources for food and agriculture.
A provision requiring a standard MTA was introduced during the penultimate negotiating session in June 2001 as part of a package that accepted mandatory sharing of the commercial benefits of the use of PGRFA under the terms of Article 13.2(d)(ii) and limited the obligation to provide facilitated access to material under the management and control of Contracting Parties and in the public domain. The MTA is in effect the legal instrument that allows the legal obligations provided for in the Treaty to be passed on to recipients and from them to subsequent recipients, by means of a contractual nexus. Any dispute concerning, or non-compliance with, the terms of the MTA is to be dealt with by the parties to the MTA in national courts (see Article 12.5 below). While the requirements of the Multilateral System are thus implemented through the realm of contract law, this does not change the basic obligation in Article 12.2, which stipulates that Contracting Parties agree to take measures to provide facilitated access to other Contracting Parties.
Facilitated access must be pursuant to a standard MTA to be adopted by the Governing Body.109
As stated in Article 12.4, the standard MTA “shall contain” certain provisions of the Treaty, namely Article 12.3(a), (d) and (g), as well as the benefit-sharing provisions of Article 13.2(d)(ii) and other relevant provisions of the Treaty. The wording used by the Treaty here is important. It will not be sufficient to draft clauses for the standard MTA based on or somehow taking into account such provisions: the latter must be contained in the agreement. Thus, the MTA must reflect the conditions of use, limitation on intellectual property rights and continued availability for access, set out in Article 12.3(a), (d) and (g), as well as conditions for commercial benefit sharing set out in Article 13.2(d)(ii). It is also to include “other relevant provisions of the Treaty”. What exactly these other relevant provisions are to include will be decided by the Governing Body. It is important to point out that these decisions, like all decisions by the Governing Body, must be taken by consensus (unless, by consensus, they decide on another method).
It is clear from the wording of Article 12.4 that all transfers of PGRFA under the Multilateral System between Contracting Parties or entities within the jurisdiction of Contracting Parties must be pursuant to the standard Material transfer Agreement. But what of transfers of Annex 1 material to non-contracting parties? The wording of Article 12.4 does not expressly limit itself to transfers between Contracting Parties. Nevertheless, the normal rules of interpretation of treaties would indicate that Contracting Parties would not be prohibited from transferring PGRFA to noncontracting parties, nor would they be under an obligation to use the standard Material Transfer Agreement if they did choose to make such transfers. Such obligations towards third parties, or in respect of dealings with third parties would need to be expressly stated in the Treaty and would not be lightly presumed. Nevertheless, the practical effect of allowing transfers to non-contracting parties on conditions that may be less onerous than those applicable to transfers between Contracting Parties, particularly with respect to benefit-sharing, might well operate to make the Treaty unworkable.
On the issue of the transfer of PGRFA that is a product, see the comments on Article 12.3(g) above.
12.5 Contracting Parties shall ensure that an opportunity to seek recourse is available, consistent with applicable jurisdictional requirements, under their legal systems, in case of contractual disputes arising under such MTAs, recognizing that obligations arising under such MTAs rest exclusively with the parties to those MTAs.
Paragraph 12.5simply states that Contracting Parties will ensure that there is some mechanism available to parties to standard MTAS under their legal system for addressing violations of the standard MTA. This provision addresses the practical problems that have already arisen with respect to the legal ability of donors of genetic resources to enforce, in the courts of other countries, the conditions under which genetic resources are made available. These problems are being discussed inter alia in the Ad Hoc Open-ended Working Group on Access and Benefit-sharing set up by the Conference of Parties to the CBD to negotiate an International Regime on Access and Benefit-sharing.110
It should be noted that the Treaty does not specify the law or judicial jurisdiction applicable to the MTA. Of curse, a uniform provision may be included in the standard MTA to be adopted by the Governing Body. In the absence of any such uniform provision, each MTA will need to set its own rules. Where no specific choice of applicable law or judicial jurisdiction is made in the contract, it will fall to the courts of the individual states in which legal actions are brought to determine the applicable law and the proper judicial jurisdiction under their own contract law and conflict of laws rules.
It is to be noted that Paragraph 12.5 recognizes that the obligations arising under an MTA rest exclusively with the parties to that MTA, and not with Contracting Parties of the Treaty. This raises a question concerning effective enforcement of MTAs between recipients of PGRFA from the Multilateral System. While the original donor of material may be able to enforce an MTA against the original recipient of the material, it may not be in a position to enforce the MTA as against subsequent recipients, since it will have no contractual nexus with those subsequent recipients. The contractual lien will be between the recipient and the subsequent recipient only. However, the recipient, in such a scenario, may have little or no incentive to take legal action to enforce the obligations of the subsequent recipient. This is a matter that may need to be either addressed in the terms of the MTA (in many countries there are contractual mechanisms for ensuring such contracts) or otherwise taken up in the context of Article 21 on compliance. Article 21 provides for cooperative and effective procedures and operational mechanisms to promote compliance with the Treaty and to address issues of non-compliance. The question may also be addressed by the Governing Body in drafting the standard MTA. For example, the Governing Body might look at the possibility of recipients assigning their rights and duties to subsequent recipients under the original standard MTA rather than entering into new standard MTAs, or of providing in the standard MTA for the initiation of dispute settlement procedures by a representative of the Multilateral System as a third party beneficiary under the standard MTA.
One question that has already been raised in the context of the meeting of the Expert Group on the terms of the Standard MTA is whether the wording of Article 12.5 would exclude reference to international arbitration as the preferred mode of dispute resolution under the standard MTA. On that occasion, the Legal Adviser to the meeting advised that “it was up to the Contracting Parties to decide the opportunities for recourse to be made available, including both resort to national courts and arbitration. For the Contracting Parties, in the exercise of their sovereign rights, to provide for binding international arbitration, would not, in his opinion, be contrary to the provisions of article 12.5. In any case it would still be open to parties to the MTA to have recourse to national courts to enforce international arbitral decisions, should this prove necessary.”111 In the event, the Expert Group put forward international arbitration by an existing international arbitration mechanism, such as the International Chamber of Commerce, as an option for dispute settlement under the standard MTA, together with recourse to national legal forums. The advantages of international arbitration in allowing for a more consistent interpretation of the Treaty and avoiding a multitude of divergent and dispersive decisions from various national courts was noted. The possibility of the Multilateral System, as a third party beneficiary under the MTA,112 being represented in, or even initiating the dispute resolution through international arbitration was also raised during the Expert Group Meeting.
With respect to choice of law, the Expert Group also raised the possibility of denominating General Principles of Law,113 the Treaty and decisions of the Governing Body as the applicable law.
12.6 In emergency disaster situations, the Contracting Parties agree to provide facilitated access to appropriate plant genetic resources for food and agriculture in the Multilateral System for the purpose of contributing to the re-establishment of agricultural systems, in cooperation with disaster relief co-ordinators.
Article 12.6 provides for the provision of materials needed to restore agricultural systems in disaster situations regardless of whether the recipients are Contracting Parties to the Treaty or not. As discussed in a later chapter, the GPA also has Priority Activity Area 3 devoted to this issue. Although not providing any special conditions, the presence of this provision reinforces the recognition of the need for expeditious access in such cases. It is also clear that the intent is not to replace or compete with habitual providers of seed under ordinary conditions.
103Vienna Convention on the Law of Treaties, 1969, Article 31.1.
104Under Article 12.4 of the Treaty, the standard MTA to be adopted by the Governing Body is to contain, inter alia, the provisions of Article 12.3(d).
105It is difficult to construe the sentence to read otherwise. The words “that limit facilitated access” appear to qualify both “intellectual property” and “other rights”. Even if the words “intellectual property” were to be construed to mean “intellectual property rights” and to stand on their own, the limitation “that limit facilitated access” is necessarily brought in by the use of the word “other”.
106See the statements made by the delegates of Australia, Canada, Japan, USA, and the European Community at the time of adoption of the Treaty by the FAO Conference.
107Convention on the Grant of European Patents, 13 I.L.M. 268 (1974) (amended by Decision of the Administration Council of the European Patent Organization of 21 December 1978).
108The criterion of distinctness can be seen not only as a condition for protection, but also as defining the borders of protection. A variety that is distinct from a protected variety cannot infringe the latter. Moreover, it may (if the other conditions are also met) obtain protection on its own right.
109In view of the central importance of the standard MTA for the functioning of the Multilateral System, the Interim Arrangements for the implementation of the Treaty adopted by the FAO Conference in 2001 under Resolution 3/2001 provide for the Commission on Genetic Resources for Food and Agriculture, acting as the Interim Committee for the Treaty, to prepare a draft standard MTA for consideration by the Governing Body at its first Session. The Resolution also provides that the draft MTA should include recommended terms for commercial benefit-sharing under Article 13.2d(ii) of the Treaty” (see the comment on Article 13.2d(ii) below). The Conference decided to establish an Expert Group to develop and propose recommendations on the terms of the standard MTA. The Group was to be composed of experts with technical or legal expertise with respect to the exchange of PGRFA and relevant commercial practice. In drawing up a draft standard MTA, the Expert Group were to address a number of issues which had been left open in the Treaty. Some of these issues are reflected in the Terms of Reference for the Expert Group, agreed at the first meeting of the Interim Committee. They include the following: What should be the level, form and manner of payments in line with commercial practice? Whether different levels of payment should be established for various categories of recipients who commercialize such products or for different sectors and, if so, what those levels, various categories of recipients, and sectors should be? Whether to exempt small farmers in developing countries and in countries with economies in transition from the payments, and if so, who qualifies as a small farmer? What constitutes commercialization in terms of Article 13.2(d)(ii) of the Treaty? What constitutes incorporation of material accessed from the Multilateral System? When would a product be considered to be available without restriction to others for further research and breeding? How will monetary and other benefits be defined for the purposes of the standard MTA? By what means will the MTA ensure the application of Article 12.3? What terms should be included in the MTA so that recipients are bound by it on acceptance of the material from the Multilateral System? The The Expert Group met in Brussels in September 2004. Its report, which explored options regarding the above points, was considered by the Second Session of the FAO Commission on Genetic Resources for Food and Agriculture acting as Interim Committee for the International Treaty in November 2004. (See Report on the Outcome of the Expert Group on the Terms of the Standard Material Transfer Agreement, FAO doc. CGRFA/IC/MTA-1/04/Rep, October 2004) The Interim Committee decided to establish a Contact Group to draw up a draft standard MTA for consideration by the Governing Body.
110See Report of the Ad Hoc Working Group on Access and Benefit-sharing on the Work of its Third Meeting, Bangkok 3 March 2005, document UNEP/CBD/WG-ABS/3/7.
111See Report on the Outcome of the Expert Group on the Terms of the Standard Material Transfer Agreement, FAO doc. CGRFA/IC/MTA-1/04/Rep, October 2004, p. 21.
112The standard MTA will need to provide for payments to be made to a mechanism established by the Governing Body to be used for the benefit of farmers in all countries, especially in developing countries and countries with economies in transition. The mechanism established under the Multilateral System and ultimately the farmers themselves are in this sense third party beneficiaries under the standard MTA.
113This formula is standard usage in the case of agreements entered into by organizations of the United Nations system. In this case reference to general principles of law, the Treaty and decisions of the Governing Body might reduce the tendency for divergences in the interpretation of the obligations under the standard MTA and allow for a greater position of influence for the Governing Body itself in the development of interpretations.
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