11 J. World Intell. Prop. 1 (2008)

handle is hein.journals/jwip11 and id is 1 raw text is: 

                          The Journal of World Intellectual Property (2008) Vol. 11, no. 1, pp. 1-28
                                                    do: 10.111 1/j.1747-1796.2007.00332.x

Plant Patenting, Benefit Sharing and the

Law Applicable to the Food and Agriculture

Organisation Standard Material Transfer

Agreement

Claudio  Chiarolla
University of London




The  Food  and Agriculture Organization (FAO) International Treaty on Plant Genetic
Resources for Food and Agriculture (ITPGRFA) should make an enormous contribution to
international equity in terms of the way plant genetic resources are transferred and agricultural
research is conducted. However, its implementation remains a critical challenge for the
majority of the developing countries. The literature has focused on access and benefit sharing
discussions from the standpoint of public international law and the interaction between
international regimes. By contrast, the original contribution of this article is to address the
question of the applicable law to the Standard Material Transfer Agreement (SMTA). The
SMTA   is an essential operational mechanism of the ITPGRFA implementation. However, it
operates as an international commercial contract, which creates specific rights and obligations
between the parties under private law. This article considers the choice of law clause contained
in the SMTA,   its reference to the UNIDROIT  Principles of International Commercial
Contracts and the supplementary use of national law. It concludes that arbitrators may
supplement non-national and international standards with substantive law principles of
domestic origin only in three narrow exceptions, namely the following cases: (1) national
mandatory provisions; (2) gaps within applicable non-national and international standards;
and (3) additional choice of law clauses inserted by the parties in accordance with article 6.6 of
the SMTA.   The  applicable law to the SMTA  and  the balance between non-national,
international and national standards will play an important role in defining both the scope
and the impact of benefit sharing on international equity in agriculture.

Keywords  plant genetic resources for food and agriculture; access and benefit sharing;
material transfer agreement; applicable law


The  Food   and  Agriculture Organization  (FAO)   International Treaty  on  Plant
Genetic  Resources  for Food  and  Agriculture  (ITPGRFA) should make an en-
ormous   contribution to international equity  in terms of the  way  plant genetic
resources are transferred and  agricultural research is conducted, especially if the
latter involves the use of modern  biotechnologies.  However,  its implementation
remains  a critical challenge for the majority of the developing countries.
    Insufficient investments and limited human, technical and institutional capacity
may  constrain the application of science and technology  to agricultural develop-
ment.  This  has severe implications  for agricultural production,  environmental
management,   food security and poverty reduction. As part of the efforts to achieve


 2008 The Author. Journal Compilation  2008 Blackwell Publishing Ltd


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