Biopiracy and the Role of Private International Law under the Nagoya Protocol

Un article (en anglais) consacré à l'émergence, depuis l'adoption du protocole de Nagoya fin 2010 (lors de la 10^e conférence des parties à la Convention sur la diversité biologique), du droit privé international dans les questions relatives à l'accès et au partage des avantages découlant de l’utilisation des ressources génétiques (APA, en anglais ABS), et notamment les cas de biopiraterie.

Points clés [en anglais] :

FILLING A GAP IN THE DEBATE ON ACCESS TO GENETIC RESOURCES AND THE EQUITABLE SHARING OF BENEFITS (ABS) UNDER THE NAGOYA PROTOCOL
Until the adoption of the Nagoya Protocol to the Convention on Biological Diversity there was no private international law of ABS. Whether and the extent to which the Nagoya Protocol enshrines obligations that would require Parties to establish or harmonise a private international law (PIL) framework for ABS is an open question. In particular, in relation to compliance issues, such question has vast implications for the way in which Parties, indigenous and local communities, and other stakeholders may (or may not) be afforded an opportunity to vindicate their rights in alleged cases of biopiracy.

PRIVATE INTERNATIONAL LAW AND BIOPIRACY
Private international law regulates private relationships of contractual as well as non-contractual nature across national borders when a legal dispute has a “foreign” element. Within the purview of what is generally termed as biopiracy, the two concepts of “misappropriation” and “misuse” of genetic resources have emerged. In practice, contractual disputes concerning cases of alleged misuse – i.e. where mutually agreed terms (MAT) have been established – may be distinguished from non-contractual disputes concerning misappropriation – i.e. where neither prior informed consent was granted nor MAT were established. The private international law provisions of the Protocol can play a critical role in defining the Parties’ obligations to enforce compliance vis-à-vis these two sets of biopiracy cases.

NARROW AND EXTENSIVE INTERPRETATIONS OF THE PROTOCOL’S PIL PROVISIONS
The narrow interpretation of the Protocol’s PIL provisions suggests that the latter should not play an important role in countering biopiracy, especially in cases of misappropriation (i.e. non-contractual disputes). On the contrary, the extensive interpretation indicates that PIL can play a prominent role in relation to all the compliance-related obligations under the Protocol. Consequently, the capacity development strategy for the Nagoya Protocol should provide for strengthening the institutional capacities that are necessary to resolve questions of jurisdiction, applicable law, and recognition and enforcement of foreign judgments and arbitral awards, both in the context of contractual as well as non-contractual ABS disputes.