Is it Fair?
Edited by Justin Malbon and Charles Lawson
Chapter 7: The Evolution of the CBD’s Development Agenda that may Influence the Interpretation and Development of TRIPS
7. The evolution of the CBD’s development agenda that may inﬂuence the interpretation and development of TRIPS Charles Lawson and Jay Sanderson 1. INTRODUCTION The United Nations’ Convention on Biological Diversity (CBD) entered into force for Contracting Parties on 29 December 1993. At the same time, minimum intellectual property standards were being established and codiﬁed in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) for World Trade Organization (WTO) Member States. After more than ten years, the interaction between the CBD and TRIPS remains unresolved (see IP/C/W/368/Rev.1; IP/C/W/369/Rev.1; IP/C/W/370/Rev.1), and the internationally contested inherent conﬂicts between TRIPS and the CBD remain. The conﬂict can be summed up as follows: TRIPS requires that genetic materials be protected by patents or a sui generis plant variety regime that privately appropriates genetic resources over which a country has sovereign rights under the CBD (see, for example, IP/C/W/368, p. 2), and that these privileges do not also require the additional measures set out in the CBD, such as prior informed consent, mutually agreed terms and beneﬁtsharing (see, for example, IP/C/M/28, p. 43; IP/C/W/368, p. 2). Resolving this apparent conﬂict has, this chapter argues, consequences for both the CBD and TRIPS. This chapter therefore considers the likely interpretive eﬀects of the CBD on TRIPS, with the CBD providing some insight into the failure to negotiate a satisfactory balance between access and beneﬁt-sharing, and providing some indication of developments that are likely to aﬀect the...
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