«An economic analysis of new instruments for Access and Benefit-Sharing under the CBD – Standardisation options for ABS transaction Interim Report ...»
Sabine Täuber, Karin Holm-Müller and Ute Feit
An economic analysis of new instruments for
Access and Benefit-Sharing under the CBD –
Standardisation options for ABS transaction
CapacityBenefit- Access Building
In te lle c tu a l
In d ig e n o u s
Rights BfN – Skripten 244 An economic analysis of new instruments for Access and Benefit-sharing under the CBD – Standardisation options for ABS transactions Interim Report Sabine Täuber, Karin Holm-Müller and Ute Feit Research project of the Federal Agency for Nature Conservation Federal Agency for Nature Conservation Bonn – Bad Godesberg 2009 Cover Design: Annette Pahl Author’s addresses: Prof. Dr. Karin Holm-Müller Dipl.-Ing. agr. Sabine Täuber Institute for Food and Resource Economics (ILR) University of Bonn Department of Resource and Environmental Economics Nussallee 21 53115 Bonn Germany Email corresponding author: firstname.lastname@example.org Scientific Supervisors: Ass. iur. Ute Feit, Legal Officer Federal Agency for Nature Conservation Biodiversity Unit, Isle of Vilm BfN-Skripten are not available in book trade but can be obtained from the publisher (RothertB @Bfn.de).
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Bonn, Germany 2009 Table of contents
1 Background and purpose of the research project The implementation of access and benefit-sharing (ABS) in the Convention on Biological Diversity (CBD) is not yet satisfactory. Therefore an international ABS regime (IR) that should contain a set of ABS instruments and measures under more equitable participation from all contracting parties is currently under negotiation.
In the beginning of 2007 the German Federal Agency for Nature Conservation (BfN) initiated a research project to analyse standardisation options for Material Transfer Agreements (MTAs) from an economic perspective as a potential element of the international ABS regime. The overall background for the investigation of this type of instrument is the assumption that high transaction costs and uncertainty, caused by information and transparency deficiencies, comprise the main barriers to the accomplishment of ABS contracts. The standardisation of contracts is known from both theory and practise as a classical countermeasure to combat this type of problem. The example of standardisation closest to ABS under the CBD is the recently adopted Standard Material Transfer Agreement (SMTA) under the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA).
In the research project we intend to analyse whether model clauses are an appropriate instrument to reduce transaction costs, as well as how they should be designed to fit different kinds of transactions with genetic resources under the CBD. Furthermore, we discuss the question of the acceptance of this instrument among different user groups and providers.
We chose sectoral model clauses to focus on as concrete option for contract standardisation for different reasons. From literature and preliminary interviews within the project we learned that ABS agreements vary in different aspects, even within what is typically described as a distinct user group (such as pharmaceuticals). A standard contract can hardly reflect these differences. Moreover, based on discussions with different stakeholders (users and providers), we can assume that there would be very little acceptance for real standardised contracts, even if they were differentiated by sector. Finally, COP 9 (Ninth meeting of the Conference of the Parties) put sectoral model clauses of MTAs on the official agenda for negotiations involving the International ABS Regime.
Due to limited capacities we focus on three main user groups: researchers from public institutions, pharmaceutical and biotechnological companies and plant breeders. We find these groups to best represent the heterogeneity in types of users, utilization forms and outcomes.
Moreover, they are traditionally viewed as key user groups.
This report is a compilation of findings from previously conducted reports while providing an overview of the procedures and results of the empirical investigations conducted thus far under the framework of this project. Chapter two summarizes some general considerations based on the Bonn Guidelines regarding the steps that should be taken to conclude an ABS agreement. In addition, this chapter highlights some contrasts to the literature on the heterogeneity of ABS agreements. The second section of chapter two provides a short compilation of user problems concluding and conducting ABS agreements found in the literature. In chapter three existing ABS model contracts developed by various entities concerned with ABS (for instance Biotechnology industry associations, ministries of member countries of the CBD, and others) are reviewed. This compilation allowed us to identify and understand potential differences in characteristics of contracts for transactions with genetic resources.
Moreover, the compilation was used as input for the group discussions on model clauses for MTAs with two user groups. Chapter four presents findings from empirical surveys conducted thus far over the course of the project. This chapter is also divided in two sections.
The first section elaborates on the in-depth discussions with users about problems experienced when concluding ABS agreements. The second section analyzes the interviews and group discussion with respect to potential model clauses for MTAs. Chapter five concludes this report with some closing remarks and an outlook on the next steps to be taken in the project.
2 ABS agreements This chapter gives an introductory overview of ABS agreements as they are outlined in the Bonn Guidelines, while also summarizing information found in the literature on problems faced by users engaging in the process of negotiating ABS agreements. Both sections will assist in understanding the review of existing model contracts for ABS agreements in chapter 3, and the discussion of findings from the user survey in chapter 4.
2.1 Steps in ABS procedures
As a basis for discussing and analysing contents of ABS contracts and options for model contract elements, we attempt to understand the general nature of ABS agreements as they are suggested in the CBD. Table 1 compiles steps considered necessary for users to conclude and conduct an ABS agreement in compliance with the recommendations in the Bonn Guidelines. The Bonn Guidelines (2002) provide points of reference regarding how some of the procedural steps ought to be realized by users and providers to comply with the ABS provisions in the CBD. The instructions, however, are quite theoretical, and user studies indicate that in practice the realization is rather problematic.
Table 1: The Chain of conducting ABS according to the Bonn Guidelines of the CBD
Literature and initial interviews within the project show that in reality, transactions with genetic resources are heterogeneous. They differ in the characteristics of their attributes and in the institutional setting in which they are carried out. This is important for the discussion of model clauses as instruments to simplify the process of agreeing upon ABS contracts. The real nature of transactions with genetic resources has to be considered in such an instrument.
The literature review indicated a multitude of characteristics for different attributes affiliated with transactions involving genetic resources (table 2). The list in table 2, however, is not yet comprehensive, but should give an idea of the heterogeneity of the cases. It will be expanded on the basis of the survey within the project.
Table 2: Characteristics of attributes describing genetic resource transactions Attributes Characteristics
Source: authors, based on a compilation of findings in Gehl Sampath, 2005, p. 26; Holm-Mueller, Richerzhagen and Taeuber, 2005; OECD, 2003, pp. 16f and 41f.
The aspect of characteristics of transactions with genetic resources was a core item of the survey within the project. Chapter 3.2 presents the findings revealed so far from group discussions and interviews.
The institutional settings under which transactions with genetic resources take place are found to vary enormously as well. Several factors were identified on the basis of the literature review and the findings from the survey in the first stage (see table 3).
Table 3: Institutional factors in provider countries with potential effects on transactions from the users’ perspective
Source: authors, based on expert interviews; stakeholder interviews; Gehl Sampath, 2005, p. 26;
Holm-Mueller et al., 2005; OECD, 2003, pp. 16f, 41f; Richerzhagen, 2007.
Both aspects of ABS agreements, the attributes of transactions and institutional settings, have been discussed with users in the survey, with the interim findings presented in chapter 3.
2.2 User problems in ABS procedures – compilation of findings in literature In the discussion of potential elements for the international ABS regime, user compliance with existing regulations is a major concern. It has been understood, that it is not primarily users unwillingness to comply that impedes successful benefit-sharing from genetic resources utilization. A multitude of other causes has been identified in ABS literature and in informal expert discussions, for example at the official CBD conferences.
The identification of actual problems born by concerned groups which shall be tackled by measures potentially to be implemented in the ABS regime seemed to us as a vital precondition for the discussion of such elements. This aspect raises the project’s chance to significantly contribute to the ABS debate.
The information we had access to before we conducted interviews and group discussions in the frame of the project indicated problems such as imperfect or asymmetric information for users and providers as well as unbalanced market power of the contracting partners. Other relevant problems indicated as inhibiting successful ABS agreements included imperfect property rights systems for genetic resources and for products resulting from R&D with genetic resources, as well as large time lapses between the contract negotiation and fulfilment of the obligations of both parties (Holm-Müller et al., 2005, pp. 47; OECD, 2003, pp. 15;
Richerzhagen, 2007, pp108-128). To demonstrate these problems, overview 1 provides some specifications of problems occurring in the ABS chain.
We found that work so far dealing with this issue has been insufficient in that it has not fulfilled the requirements of a systematic, in-depth analysis of the particular issue. Former studies on users of genetic resources were more focused on aspects like the utilization procedure, sources of supply for genetic resources, awareness of the CBD, and similar topics.
Problems involving reaching and carrying out ABS agreements have only been dealt with as a side aspect in the investigations, but they merit more in-depth consideration. Nevertheless, what we have learned from existing studies serves us as basis for interviews and group discussions focussing on this issue in the framework of the project. Interim findings on this item are presented in chapter 3.1.