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From the report of the BBNJ Preparatory Committee, 31/07/17 :

iv) Benefit-sharing modalities

The text would set out modalities for the sharing of benefits, taking into account existing instruments and frameworks, for example it could make provision for a clearing-house mechanism with regard to the sharing of benefits.

From the President's aid to discussions, 25/06/18:

(a) The practical arrangements that would be required for the sharing of benefits and how these would be operationalized. Issues to consider may include:

(i) Would the instrument include provisions setting out benefits that might accrue at different stages?

(ii) Who might be required to share benefits?

(iii) Who might be the beneficiaries?

(iv) How might the shared benefits be used?

(b) Would the instrument include different provisions on the sharing of benefits depending on where the marine genetic resources are sourced or originate from?

(c) What existing instruments and frameworks would need to be taken into account with regard to modalities for the sharing of benefits?

(d) If a clearing-house mechanism is provided for the sharing of benefits, what functions would it need to include?

(e) What other modalities for the sharing of benefits could be provided for in the instrument?

(f) How would the special circumstances of developing countries, in particular the least developed countries, landlocked developing countries, geographically disadvantaged States and small island developing States, as well as coastal African States, be taken into account in the modalities for the sharing of benefits?

(g) How much detail on the modalities for the sharing of benefits would be included in the instrument?


Suggestion 1: Mandatory up-front paymentsEdit

Access to MGR from ABNJ (i.e. sampling of in situ MGR and access to ex situ MGR as well as related data) for commercial purposes shall trigger an appropriate access fee to be paid by the user to a multilateral fund

References: State Practice under the Nagoya Protocol.

Suggestion 2: Mandatory milestone paymentsEdit

Appropriate milestone payments shall be made by the researcher to a multilateral fund in case of commercialization (see use of terms):

  • Royalty payments after product based on in situ or ex situ MGR from ABNJ or related data is put on the market.
  • Exclusivity fee in case of protection of samples and/or data (e.g. through IPR), i.e. when in situ and ex situ MGR from ABNJ as well as associated data is not put in the public domain.

References: ITPGRFA Art 13.2 (d) (ii) and Art 13.3 Part IV (Multilateral System of ABS), Micro B3 Agreement on Access to Marine Microorganisms and Benefit-Sharing (proprietary use of samples/data)

Suggestion 3: Mixture of voluntary and mandatory payments into endowment fundEdit

Mixture of voluntary and mandatory payments from research institutions, commercial end-users, governments and others into an endowment fund for marine scientific research in ABNJ.

References: See relevant financial mechanism.

Suggestion 4: Comprehensive set of benefit sharing provisions for a multilateral systemEdit

Develop a comprehensive multilateral benefit-sharing system introducing obligations to:

  • Create a multilateral/pool system facilitating international access to and scientific research on MGR from ABNJ as well as associated data
  • Fair and equitable sharing of non-monetary benefits by facilitating international collaboration, technology transfer and capacity-building
  • Fair and equitable sharing of monetary benefits in case of commercial research and/or development of market products

References: Plant Treaty Arts 10-13 (multilateral benefit sharing system), Report of the PharmaSea WP6 Stakeholder Workshop (multilateral benefit-sharing regime)

Suggestion 5: Base system on public access approachEdit

In developing Suggestion 1, adopt a public access approach.The overall principle of a public access approach would be based on obligations for international cooperation and sharing of knowledge and data, and UNCLOS Art 241 which states that MSR shall not constitute the legal basis for any claim to marine resources.

This would translate into obligations to:

  • put samples of MGR collected in ABNJ as well as associated data in the public domain as soon as possible (possibility of embargo period)
  • Share through international network(s) of biorepositories and international network(s) of databases creating common pools
  • Store sub-samples (duplicate samples) in centralized biorepositories at national or international level (if possible)
  • share monetary benefits in case of commercial utilization (i.e. sample or data are not put in the public domain, or product is put on market and generates revenues)

Further policies, standards and guidelines would need to be subsequently adopted by appropriate international process.

References: UNCLOS Arts 242, 244 (international cooperation; publication; knowledge transfer), UNCLOS Arts 143. 144 (MSR and Tech Transfer), UNCLOS Art 241 (MSR not basis for claim to marine resources), UNGA Res. 2749, Declaration of Principles Governing the Sea-Bed and the Ocean Floor, and the Subsoil Thereof, beyond the Limits of National Jurisdiction, Micro B3 Agreement on Access to Marine Microorganisms and Benefit-Sharing (public domain approach), Evanson C.K. and Winter G. “Common pools of Genetic Resources – Equity and Innovation in International Biodiversity Law” (Earthscan, 2013).

Suggestion 6: Basic benefit sharing provision – like CBDEdit

Develop a basic benefit-sharing provision (as done under CBD): Comprising general principles and obligations aiming at:

  • Fair and equitable sharing of monetary and non-monetary benefits arising from the utilization of MGR from ABNJ
  • Facilitation of MSR on MGR from ABNJ through access to ex situ MGR from ABNJ and related MSR results/data
  • Promotion of collaboration in MSR on MGR from ABNJ

References: CBD Art 15 (general obligations for ABS), Bonn Guidelines, Nagoya Protocol

Suggestion 7: Benefit sharing aligned to the various stages of researchEdit

Benefit sharing aligned to different stages of research. For example, at early stages of the research pipeline, the benefits could be the sharing of material and data. At later stages the benefit could take the form of royalties, for instance, through an “earn-out” provision.

Notes: Linked properly, a balance could be achieved on the impact of the benefits, including when the benefits are shared, the benefits derived for the user and the cost of sharing the benefits to the user.

References:

Suggestion 8: Requirement for material and/or genetic information to be made publicEdit

Requirement for those accessing MGRs in ABNJ to make the material and/or genetic information publicly available in open source databases, biorepositories and/or biobanks. Notes: This suggestions aims to promote the involvement of users from developing countries to access to MGRs of ABNJ with certain conditions that would facilitate scientific research. Making data available will also maximize the potential for new discoveries by all participating scientists, benefiting all humankind and supporting technology transfer.

References:

Suggestion 9: Balancing private sector interests with an open access model, with certain conditions.Edit

Monetary benefit sharing model, where a sector-negotiated percentage of revenue could be imposed at the point of product commercialization and could offer a tangible payment system with a low transaction cost. Notes: Suggestion based on IUCN submission to the Chair written from the perspective of the scientific community. A fair and effective regime regulating benefit sharing of MGRs in ABNJ will need to consider inclusivity of developing states, support scientific research and development as well as safeguard the investments of the private sector.

References:

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