Bio-Property Contracts in a New Ecosystem: Genetic Resources Access and Benefit Sharing

Abstract

The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity presents a relatively new international legal framework. Although the United States is not currently bound by this legal instrument, its impact may be felt in the life sciences innovation sector and beyond. Transnational implementation mechanisms for the Nagoya Protocol have a combination of property law and contract law as their theoretical underpinning. Stakeholders who are entering into an agreement with their foreign counterparts should honor the Access and Benefit-Sharing scheme as well as domestic laws and policies of Parties to the Protocol to access biological materials located in their jurisdictions. Users’ due diligence in obtaining prior informed consent and adhering to mutually agreed terms will contribute greatly to promoting the objectives of the Nagoya Protocol and the Convention on Biological Diversity.

Keywords: Nagoya Protocol, Convention on Biological Diversity

JEL Classification: F18, F53, F64, K11, K33, Q57