ABS Management Tool International Stakeholder Workshop 27 and 28 November 2006, Heredia Costa Rica Sponsored by SECO and UNU/IAS Organized by IISD, Stratos Inc., Jorge Cabrera

Discussion of ABS Challenges and “Grey Areas”

3 ABS Challenges and Grey Areas  Advisory Committee first flagged this as important aspect of the project  Consistently comes up in field test discussions, outreach:  Prevent or reduce interest in pursuing access to genetic resources  Reluctance to use standards  Guidance on how to address challenges would be useful

4 ABS Challenges and Grey Areas How to address them:  Identification, where available, of real cases where these challenges have been addressed and providing appropriate links to information, if available, to those cases  Some of these cases and experiences have been already identified and, if feasible, will be presented in the final version of the MT.  Provide options and alternatives to guide the user of the MT to address satisfactorily the challenges identified

5 ABS Challenges and Grey Areas Two Approaches  Specific Grey Areas addressed in the ABS-MT Compliance Standards ( PIC, MAT, BS)  Options suggested for further development of the practical solutions and tips.  Cross-cutting Grey Areas:  Lack of legal certainty  Obtaining PIC  Distinction between genetic and biological resources + use of biological resources sold as commodities  Supply chains

6 SPECIFIC GREY AREAS PIC MAT Benefit Sharing

7 PIC GREY AREAS e.g.  Levelling the playing field for provider in negotiation with the user of genetic resources Options suggested:  provision of independent legal and scientific advice  Identifying from whom PIC shall be sought. PIC negotiating process Options suggested:  Links to organizations with successful experiences negotiating and obtaining PIC  Steps (diagram) used in PIC processes dealing with different situations  Cases illustrating processes used to identify and negotiate with different national authorities/stakeholders.

8 PIC GREY AREAS (e.g)  Traditional knowledge shared between different groups Options suggested:  Each community concerned and local authorities must be consulted  in developing benefit-sharing terms and,  implementation;  Examples of contract negotiations/benefit sharing provisions addressing concerns of non participants  Legislative approaches (Peru).  Acquisition of genetic resources from intermediaries ex situ collections Options suggested:  Examine the PIC documentation from the ex-situ collection organization to determine if it is adequate for transaction and intended use  If PIC does not exist, or does not cover the transaction and intended use, obtain further PIC from the competent national authority and/or the organization governing the ex situ collection concerned.

9 MAT GREY AREAS (e.g)  Complexity of terms of contracts, information needs on market operations, etc. Options suggested:  Links with useful sources of information on contracts  Links to commercial practices of different industry sectors  Annex with a contract outline (examples of model contracts, etc).  Levelling the playing field for provider in negotiation with the user of genetic resources. Options suggested:  Provision of independent legal and scientific advice

10 BENEFIT SHARING (e.g.)  Unexpected or unrealistic expectations of benefits to be shared Options suggested:  Develop information sheets with benefit sharing models and types of provisions in different contracts.  Specific concerns on how to determine amounts for monetary benefits e.g.: royalty rates, price for samples, etc. Options suggested:  Develop information sheets with ranges of royalties negotiated in existing contracts for different conditions, uses of genetic resources, sectors (when available)  Information sheets with the main factors for the calculation of royalties.  Tracking and monitoring genetic resources:  transfers  their use Options suggested:  contracts including tracking and monitoring requirements  develop case studies learning from practical experiences (INBio, etc).

11 Cross-Cutting GREY AREAS 1.Lack of legal certainty:  No law/regulation laying out requirements and procedures  Lack of clarity who to deal with + competing government interests Options suggested:  Providing legal certainty is outside the scope of the MT  However, successful use of the MT requires legal certainty of some form.  A simple legal Roadmap for MT interaction with national laws, provides initial guidance on determining whether there is legal certainty.

12 Cross-Cutting GREY AREAS 2. Obtaining PIC Options suggested:  Short cases studies to be developed in order to present the steps of successful cases of access which proper PIC  A comparative analysis of PIC in the different legislations may be conducted and presented as an Annex to the MT.  Prospective users of genetic resources should at all times request the government authorities to include appropriate stakeholders in the discussion on access and granting PIC.

13 Cross-Cutting GREY AREAS 3. Distinction between genetic and biological resources  Direct sale of commodities – then used for GR development: “Rights exhausted in the sale BU” – but for what use? Ethical and reputational issues  Application of ABS to biological resources with useful/marketable components, properties e.g. cosmetics Options suggested:  If use of material changes from commodity use to research for genetic resources, need to comply with CBD and Bonn Guidelines e.g. obtain PIC

14 Cross-Cutting GREY AREAS 4. Supply Chain Options suggested:  Tracking genetic resource transfers between each provider and user including through good documentation and some form of certificate  Labeling of products where “chain of custody” can be established and verified.  The MT standards provide guidance on the conditions for the acquisition and transfer to third party of genetic resources  Further work is needed

15 Discussion  What other challenges/grey areas need to be on our list  Experience in solving these grey areas  Addressing these challenges and grey areas:  Can they be addressed in the context of the ABS MT?  How? e.g. case studies ( text box, links).  Create and update on the website of the Project a section on “new grey areas and solutions” arising from future ABS negotiations + experience in law implementation, which are reported back from users of the MT - Would this be useful?