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  • Report of the Regional Training on “Negotiating and Drafting ABS Agreements"

  • Claudio Chiarolla

    Member
    12th December 2019 at 8:15 am

    Summary Report of the Regional Training on “Negotiating and Drafting ABS Agreements under the Nagoya Protocol”, November 20th-22nd, 2019, Dushanbe, Tajikistan.

    Introduction

    The National Biodiversity and Biosafety Center (NBBC) of the Committee for Environmental Protection under the Government of the Republic of Tajikistan, in partnership with the UNDP Country Office in Tajikistan, conducted a three-day training on “Negotiating and Drafting ABS Agreements” on November 20th to 22nd, 2019, as part of the UNDP-GEF Global ABS Project “Strengthening human resources, legal frameworks and institutional capacities to implement the Nagoya Protocol” (the Global ABS Project). In addition to ABS institutions and stakeholders from Tajikistan, the training was attended by delegates from four participating countries under the Global ABS Project, namely Albania, Belarus, Jordan and Kazakhstan. In total, over 60 representatives from 20 organizations, including State, scientific, educational, commercial and non-governmental organizations participated in the training.

    The training was facilitated by Mr. Claudio Chiarolla, Regional Project Specialist of UNDP-GEF Global ABS Project, and delivered by Mr. Morten Walloe Tvedt, International Consultant, from the Global ABS Project, and Associate Professor in Law at the University College of Molde, Norway.

    The aim of the regional workshop was to increase the capacity of all stakeholders to negotiate and draft ABS agreements as providers of genetic resources and associated traditional knowledge in accordance with the Nagoya Protocol. The workshop illustrated concrete examples of how to negotiate and draft contract clauses for their inclusion in ABS contracts. Subject-specific training modules, practical exercises and knowledge sharing activities were presented and used throughout the training. Participants were divided in groups for discussions of prospects and problematic issues concerning the drafting of ABS contracts and involved specialists from each partner country. The training presented the experiences and examples of Tajikistan as well as other international experiences in negotiating and drafting agreements on access to genetic resources and benefit sharing in accordance with the Nagoya Protocol.

    Particular attention was given to enhancing the capacities of National ABS Focal Points, practitioners, politicians as well as indigenous peoples and local communities, academics and the private sector to address legal, political and practical issues related to management of genetic resources and associated traditional knowledge in a transnational value chain context.

    During the workshop the following issues were discussed:

    • How do ABS contracts fit into the general ABS legal framework;

    • Understanding the Parties to an ABS contract;

    • What are we aiming at regulating in an ABS Contract;

    • Understanding the subject matter;

    • The subject matter of ABS contracts in different sectors;

    • The actions that trigger benefit sharing;

    • Designing ownership in ABS Contract;

    • Drafting the actions and benefit sharing obligations;

    • Obligations to share;

    • The link to IPRs – patent law;

    • Technical contract issues;

    • Dispute resolution and choice of law.

    Available resources and training materials:

    The ABS Contract Tool V2.0 (English version)

    The ABS Contract Tool V2.0 (Russian version)

    Training materials/presentations (English version)

    Training materials/presentations (Russian version)

    Day 1 – November 20th, 2019

    Opening remarks

    The training was opened by Mr. Neimatullo Safarov, National Coordinator of the Convention on Biological Diversity (CBD), NBBC, who greeted the guests from other project countries and all participants to the training. He noted that the training was attended by specialists who have contributed to the Global ABS Project as well as to improving the biodiversity of the Republic of Tajikistan. He further highlighted that the Nagoya Protocol on Access and Benefit Sharing (ABS) is closely related to the fair and equitable benefit sharing objective of the CBD. He also recalled the ratification of the Nagoya Protocol by the Republic of Tajikistan and that the draft law of the Republic of Tajikistan on Access to Genetic Resources and Traditional Knowledge is being developed as part of the Global ABS Project.

    Mr. Khairullo Rakhmatulloev, on behalf of the Committee for Environmental Protection under the Government of the Republic of Tajikistan, welcomes all guests and participants and noted that the Republic of Tajikistan has already achieved important goals in the field of biodiversity that have brought benefits to the country.

    Ms. Firuza Nasyrova, Vice President of the Academy of Sciences of Republic of Tajikistan and Professor of Biological Sciences, Institute of Plant Botany, Physiology and Genetics, welcomed the participants, noting that holding this regional training in the Republic of Tajikistan is very timely since the country is rich in its genetic resources of both plants and animals and the equitable use of these valuable resources will allow to preserve them for present and future generations. Furthermore, she illustrated the role and responsibilities of the Institute of Botany, Physiology and Plant Genetics in the conservation of genetic resources.

    Ms. Nargizakhon Usmanova, UNDP Tajikistan, welcomed all the participants and noted that the training was conducted with other partner countries, which are participating to the Global ABS Project with a view to strengthening the implementation of the Nagoya Protocol. By doing so, UNDP was supporting regional and South-to-South cooperation.

    Mr. Claudio Chiarolla, on behalf of the UNDP-GEF Global ABS Project, welcomed all participants and thanked the host country and the organizers for convening the training, in particular, the National Biodiversity and Biosafety Center for their continuous contribution to the implementation of the Nagoya Protocol in Tajikistan. He further highlighted that the Republic of Belarus and the Hashemite Kingdom of Jordan were completing the project activities in 2019 and they would be also sharing their experiences during the training.

    Presentations

    Mr. Sukhrob Irgashev, technical coordinator of the ABS Project in Tajikistan, delivered a presentation on the “Implementation of the Nagoya Protocol in the Republic of Tajikistan.” He described the goals and objectives of the ABS Project in his country and illustrated progress towards achieving them. He noted that the Republic of Tajikistan is a mountainous country with peculiar characteristics and unique mountainous landscapes due to its the geographical location. He also noted that Tajikistan already has some experience in negotiating and concluding Agreements for the exchange of genetic resources, for example, the conclusion of a memorandum of cooperation between the Korean National Arboretum and the National Center for Biodiversity and Biosafety on the collection, research and storage of plant genetic resources. As part of the implementation of that project, 8 joint expeditions to various mountainous areas of Tajikistan and more than twenty field trips with national experts were undertaken. More than 1000 herbarium samples of wild species and 300 seed accessions were collected and a database of wild plants was developed. The project participants received training and a certificate for their contributions to the conservation of genetic resources of Turkestan Hawthorn (Crataegus turkestanica).

    Ms. Elena Makeyeva, ABS Focal Point and Project Coordinator of the ABS Project in the Republic of Belarus, delivered a presentation on the “Implementation of the Nagoya Protocol in the Republic of Belarus.” The first part of the presentation focused on research on the conservation of genetic resources, DNA barcoding, goals and objectives and results achieved by the Project, and raising awareness on the Nagoya Protocol in the Republic of Belarus. Participants watched a short documentary on the key “Results of the UNDP-GEF Global Project.” 

    UNDP-GEF Global ABS Project Video-Belarus

     She further noted that an inventory of genetic resources using modern molecular genetic methods was instrumental for the creation of an interactive database for monitoring the use of genetic resources in accordance with Article 17 of the Nagoya Protocol. Ms. Makeyeva also illustrated other key results such as the creation of a reference DNA library with barcodes of rare and endangered wild plant species, which is hosted by the Republican DNA Bank of Human, Animal, Plant and Microorganisms of Belarus, and the trainings that were conducted at the Institute of Genetics and Cytology with the participation of 40 specialists from 7 countries of Central and Eastern Europe and Central Asia on the use of DNA barcoding techniques.

    Ms. Kuralay Nukhanovna Karibayeva, Institute of Ecology and Sustainable Development, Republic of Kazakhstan, made a presentation on the theme “Implementation of the Nagoya Protocol in the Republic of Kazakhstan.” She explained that the initiative to accede to the Nagoya Protocol had been taken under the responsibility of the Committee on Forestry and Wildlife of the Ministry of Agriculture of the Republic of Kazakhstan, which coordinated relevant intuitions in the field of the protection and sustainable use of biological diversity. She also described the support provided for scientific research, the draft Code of Ethics for the implementation of ABS in her country and the information seminars held in Astana for government bodies, local communities and NGOs, which had been facilitated by her Institute under the Global ABS Project.

    Mr. Morten Walloe Tvedt, International Consultant, Global ABS Project, and Associate Professor in Law, welcomed the participants and delivered a presentation on “The rationale for drafting ABS agreements.” His presentation described various situations concerning the status and rights on genetic resources and the benefits of drafting ABS agreements by outlining the problems that may arise along the research and product development cycle (e.g. how to create incentives for users to share benefits, when such benefits are generated after a long period from access to the genetic resource). Participants, together with the international expert, determined the types of parties interested in ABS and genetic resources, who is a typical user of genetic resources and how to build various forms of business models on the user side. He further used as an example that a research consortium consisting of several research institutions in combination with companies is not a single legal entity and does not have legal personality. The legal personality rests in that case in each of the units collaborating. Mr. Tvedt also noted that in some cases the user of a genetic resource may authorize other persons to carrying out research activities under an ABS Agreement and that such additional persons must be authorized by notifying the Supplier/Provider of the genetic resource, in accordance with the Agreement.

    During the discussion, participants shared views on building various forms of business models on the user side. A participant suggested preparing a diagram about the various participants involved in an ABS agreement such as academics, undergraduates and doctoral students, traders and foundations. Participants also discussed other aspects that must be considered when drafting an ABS contract in relation to the subject matter of the contract.

    Key take-home messages:

    • A contract is the legal tool which best ensures the sovereign right of the provider country to its genetic resources and associated traditional knowledge;

    • It is critical to raise awareness of your country’s genetic resources through the portal of the ABS Clearing House and to monitor ABS contracts on genetic resources;

    • ABS agreements may involve private organizations, NGOs, the State, International Organizations as well as local communities, as appropriate;

    • Clearly identify the parties to an enforceable ABS contract;

    • Choose and define the subject matter of contract correctly.

    Day 2 – November 21st, 2019

    Mr. Dustov Dilovarsho, Head of the National Biodiversity and Biosafety Center (NBBC), welcomed all participants to the training and recalled the main lessons learned from the previous day. He further noted that the efforts of the UNDP-GEF Global ABS Project in Tajikistan are aimed at increasing the political, legal and institutional capacity to develop a national framework on ABS, improving communication between users and providers of genetic resources, as well as strengthening the capacity of specialists from ministries, academic and scientific organizations, public organizations and representatives of local communities to implement the Nagoya Protocol and its ABS principles. Mr. Claudio Chiarolla, Regional Specialist of the Global ABS Project, and Ms. Malika Hakimova, UNDP Tajikistan, also welcomed the participants and guests from Central Asian and other countries, thanked the trainer for sharing his experience, and noted with appreciation the contribution of NBBC to organize the training.

    Continuing from the previous day, Mr. Tvedt delivered a presentation on “Understanding the Subject Matter of ABS Contracts”. He invited the participants to keep in mind two rules when drafting ABS agreements, namely to avoid ambiguity and to be clear and specific – but not limited and narrow in the obligations enshrined in the contract. He also explained the basic rights and obligations of the user, noting that the user has the right to administrative support and guidance to facilitate obtaining the necessary permissions required by the national competent authority.

    Participants discussed in groups how to formulate legal provisions that can express legally binding obligations and be enforced. When drafting clauses, three main steps are to 1) establish clear obligations, 2) that can be tested objectively and externally, and 3) to establishing clear reactions in the case of violation of each material obligation with a remedy.

    In the afternoon, participants discussed ABS issues regarding plants, animals and microorganisms, as well as the correct inclusion of contract elements in the process of preparing ABS agreements. Legal issues concerning derivatives were also discussed.

    In his presentation, “What are we striving to regulate in the ABS agreement?”, Mr. Tvedt illustrated various legal scenarios concerning access to the material, regulation of the material provided to the user, samples of plant, animal material and the complexity arising when such materials may be contained within human samples (e.g. viruses), as well as the possible reaction to the breach of the contract’s “protection measures.” It was noted that non-compliance by the user of material triggers damages and the training participants discussed how these damages could be calculated. The consultant presented a proposal on how to define the material in a comprehensive manner (e.g. a plant sample includes the biological plant material, any biologically active compounds in or from plant material, any DNA or other subcellular parts, and it includes any parasites or pathogens on or in plant material).

    During the discussions, the most pressing issues on the use of biological resources and related genetic resources of DNA, RNA and those exchanged as a genetic resource were discussed. Further, remedies in the case of breach of contract were discussed as protection measures. Mr. Tvedt showed participants how to formulate the relevant articles, noting the main obligation (e.g. actions regulated and authorized by the agreement and using clear language describing these actions). He noted that in the event of any deviation from any of the rules regarding the collection, sampling or processing of material in the country of the supplier, the supplier himself is entitled to full compensation for any environmental, biological or similar damage, including any economic or non-economic losses.

    Among other things, the collaboration between Norway and the FAO to host the seed vault of the Global Crop Diversity Trust (GCDT) was also discussed. Norway and the FAO have undertaken an obligation to preserve security collections of seeds, which are stored in an old mine on Svalbard, an island North in Norway. This seed vault is not an active collection, except where another collection needs to be re-stocked. This was the case for the ICARDA seed collection in Aleppo, which was destroyed during the war and then reconstituted later the region.

    In his presentation, “Understanding the subject of the contract,” Mr. Tvedt presented examples of relevant model closes and how to draft an agreement, includes measures to avoid ambiguity in the contract. He noted that if more than two parties are involved in the contract, it is necessary to specify the role of each party and the benefits that each one shall be sharing. He also paid attention to how the Government in the providing country may retain or establishes ownership in any other research results of any activity carried out using any samples or information.

    Finally, Mr. Chiarolla delivered a presentation that focused on the negotiation of ABS agreements. He illustrated various negotiating strategies and the importance of the initial information exchange between the provider and the prospective user of genetic resources, which is essential in order to build confidence and a mutual understanding of the parties’ interests, expectations and the reciprocal benefits under the agreement.

    Mr. Safarov thanked the participants and trainers for their presentations and for sharing their experiences and knowledge, and closed the agenda of the day.

    Day 3 – November 22nd, 2019

    Mr. Neimatullo Safarov greeted the participants, summarized the results of the first and second days of the training, and explained the agenda of the third day, noting that this type of training is important for Central Asia also for monitoring its valuable genetic resources.

    In the morning, Mr. Tvedt invited the participants to review a real agreement, which had been used for the exchange of genetic resources, including its intellectual property-related provisions. The participants exchanged their experiences, noted the procedure for filing applications for obtaining a patent for an invention enabled by genetic resources to which access had been provided previously, as well as the commercial use of genetic resources and the transfer of such resources to third parties. Furthermore, the procedure for resolving possible disputes arising under the contract and the duration of the contract obligations were also discussed. Mr. Tvedt noted that when a user identifies a research result worthy of publication in any form, he must immediately, before any information is disclosed, write an analysis examining its commercial potential and this analysis should be immediately reported to the provider. Within 14 days from receiving this report, the provider may require its technology transfer office or a similar university department to begin the process of filing a patent application.

    Participants further discussed property rights and the international consultant noted that in a non-commercial use contract there are no grounds for the user to own the material, as well as to have a commercial right to the results. In these cases, full ownership and subsequent commercial rights of the supplier/provider should be provided with absolute clarity in the contract. Noting that a critical aspect is to define the subject matter of the contract, Mr. Tvedt noted that any rights to the samples listed in the contract and in its annexes shall extend also to unknown materials (not expressly included in the list) that are accidentally transferred within the sample. Participants, together with an international consultant, discussed property rights including the right to commercialize any biological innovations or information, and noted that property rights include the right to access and repatriate dead samples, living samples, offspring or genetic or biological parts of these samples or information or knowledge in any location at any time without any benefit-sharing obligation.

    In the afternoon, Mr. Chiarolla delivered a presentation the Global ABS Community of Practice (CoP) and illustrated the key results achieved by the Global ABS Project around the world, including an overview of the seminars, webinars and trainings that have been delivered through the Project. He noted that a critical barrier to the widest participation in the Global ABS Community was the language barrier and illustrated a new feature of the CoP website that allows the automatic translation of its contents into Russian and other languages.

    Then Mr. Tvedt illustrated typical situations of transfer of genetic resources to a third party and the need to manage and mitigate the main risks arising therefrom. He also introduced monetary and non-monetary benefit sharing terms to the participants, by giving the example of Bhutan and another of Griffith University, noting that Australia has been able to build a research laboratory piece by piece by using smart ABS contracts. He also noted the importance of the obligation to provide information and reporting, among others.

    Closure of the meeting

    Mr. Chiarolla thanked Mr. Tvedt for delivering an excellent training and Mr. Safarov, on behalf of the NBBC Team, for his relentless commitment and contribution to the implementation of the Nagoya Protocol in Tajikistan, as well as the UNDP Country Office in Tajikistan for their unfailing support. Ms. Makeyeva (Belarus) expressed gratitude to the organizers for holding such a high-level event and for inviting Mr. Tvedt as their trainer. She also thanked Mr. Safarov for always sharing his experience and for constantly promoting the exchange of information in the CIS Region and beyond. Ms. Karibayeva (Kazakhstan) also thanked the organizers and the international experts for the knowledge that they had provided over the three days and proposed to conduct another training to further consolidate the knowledge that was gained at this training.

    Final Outcome

    Participants noted the need for continuing exchanges of experiences and enhanced cooperation between the participating countries in the region and with other partner countries, through the Global ABS Community of Practice of the UNDP-GEF Global ABS Project, as well as the need to further support the implementation of the Nagoya Protocol and the preparation of project proposals to strengthen capacities and create harmonized ABS systems. They endorsed the following recommendations to:

    • Improve national mechanisms for implementing the Nagoya Protocol;

    • Establish a regional coordination council to coordinate national mechanisms for access to genetic resources at the regional level;

    • Establish a regional platform for the exchange of information on genetic resources in order to grant access to them;

    • Strengthen the collaboration between countries in the region through the establishment of a checkpoint network;

    • Request specially authorized bodies for the protection and use of resources, primarily genetic resources, to include the conservation and sustainable use of genetic resources in relevant programmes and action plans;

    • Develop and realize an appropriate regional framework allowing local authorities and local communities to take measures to preserve their traditional knowledge and practices associated with genetic resources in order to achieve the Sustainable Development Goals (SDGs);

    • Strengthen capacities by establishing a regional/interregional open-ended capacity building initiative, through the expert network of the Global ABS Community of Practice and hosted at the Institute of Genetics and Cytology of the National Academy of Sciences of Belarus, on DNA identification and sequencing techniques with a view to mapping priority species for conservation as well as species with bioprospecting potential;

    • In order to further develop and implement the requirements of the Nagoya Protocol in various sectors of environmental management and economics, invite relevant international organizations and donors respectively to facilitate and provide financial support to strengthen capacities and create national networks at the regional level, as described above.

    This summary report was prepared by: Ms. Bonu Sharifzoda, Mr. Sukhrob Irgashev, Mr. Morten Walloe Tvedt and Mr. Claudio Chiarolla

    Attachments:
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  • Rasim Abderrahim

    Member
    14th December 2019 at 8:59 am

    Thank you very much for such a summary report. If there is an opportunity to read more about the presentations, I will be grateful.

  • Rasim Abderrahim

    Member
    18th December 2019 at 6:05 pm

    Thank you Claudio. I accessed the documents and found them very informative.

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