ABS Management Tool International Stakeholder Workshop 27 and

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”

ABS Challenges and Grey Areas Ø Advisory Committee first flagged this as important aspect of the project Ø 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 3

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

ABS Challenges and Grey Areas Two Approaches Ø Specific Grey Areas addressed in the ABS-MT Compliance Standards ( PIC, MAT, BS) § Options suggested for further development of the practical solutions and tips. Ø 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 5

SPECIFIC GREY AREAS • PIC • MAT • Benefit Sharing 6

PIC GREY AREAS e. g. Ø Levelling the playing field for provider in negotiation with the user of genetic resources Options suggested: § provision of independent legal and scientific advice Ø 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. 7

PIC GREY AREAS (e. g) Ø 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). Ø 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. 8

MAT GREY AREAS (e. g) Ø 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). Ø Levelling the playing field for provider in negotiation with the user of genetic resources. Options suggested: § Provision of independent legal and scientific advice 9

BENEFIT SHARING (e. g. ) Ø 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. Ø 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. Ø 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). 10

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 whethere is legal certainty. 11

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. 12

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 13

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 14

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? 15