1To achieve its ambitious objectives, the Nagoya Protocol chose a rather modest instrument: the contract. Modest, because a contract manifests the agreement of individual wills, whereas certain objectives of the Protocol – among them biodiversity conservation – concern humanity as a whole. The contract may also appear to be a somewhat derisory instrument since it applies to a human time scale, whereas the Nagoya Protocol contains long-term, or even very long-term objectives.

2This is a bold gamble: the conservation of biodiversity, sustainable use of its components and fair and equitable sharing of benefits are partly left to private will. In this respect, the Protocol may be seen as a model of trust in human nature. Measured trust or blind trust? Realism or naivety? On the one hand, past and current events cast doubt upon the capacity of market forces to contribute to a sustainable future. On the other hand, the contractualisation of law – a phenomenon that goes far beyond the scope of the Nagoya Protocol – is based on the idea that negotiated agreements are better respected than enforced orders.1 Furthermore, the Protocol does not completely abandon genetic resources and traditional knowledge to the vagaries of freedom of contract. While the contracting parties are left to negotiate the details of the agreement, their wishes must conform to the principles set out in the Protocol, which will be implemented by the States.

3The temporal element then becomes a central concern. The contractual instrument can only be effective in ensuring biodiversity conservation and benefit-sharing if many more contracts are signed in the future. For this to happen, the rules governing the contract must be attractive, or at the very least, not be repellent and not discourage users of genetic resources from their utilisation. The adaptation of this system to the needs of economic agents and the legal certainty that it offers are particularly decisive considerations. However, the Convention on Biological Diversity and the Nagoya Protocol use concepts that are sometimes novel and sometimes unclear, especially the notions of prior informed consent, the utilisation of genetic resources and the fair and equitable sharing of benefits. The temporal element, which is inherently difficult to control, is doubly central to these notions. On the one hand, the contract is by its very nature an act of foresight, of taking control of the future, if only because it determines the services to be performed. This control over time proves to be particularly problematic for the contract of utilisation and sharing: the contract must define the permitted uses of the genetic resource and traditional knowledge, even though these future uses are largely unforeseeable. Similarly, how can one define the fair and equitable sharing of benefits that are as yet unknown? On the other hand, the contractual notions arising from the Nagoya Protocol remain vague, notably because they seek to reconcile very diverse national legal traditions. States will therefore be required to transpose these concepts into their domestic law, while seeking to strike a balance between flexibility and certainty, both of which are essential to the attractiveness of the contract system. However, the legislator cannot foresee everything, especially since the uses of genetic resources and the benefits derived from them vary greatly from one sector to another. The work on delimiting and clarifying the concepts stemming from the Nagoya Protocol will therefore need to continue over time through case law, as litigation arises. As uncertainty is detrimental to legal certainty, and legal certainty is one of the objectives of contract law in general and of the Nagoya Protocol in particular, national bioprospecting contract systems will therefore take some time to become truly attractive if they ever actually do so. The uncertainty of the contractual system will especially concern the temporal aspects of the contract on utilisation and sharing. Indeed, the highly unusual temporality of this contract, relating to future and largely indeterminate uses and benefits, makes it very difficult to transpose the temporal concepts of normal contract law, which has been developed and then refined by case law and the courts over a very long time. In the meantime, the parties to the contract of utilisation and sharing will have to cope with the uncertainties arising from the two temporal aspects mentioned above: the ambiguities of the rules governing the contract and the vagaries of time that the contract seeks to control. The main difficulties – but not all of them given their large number – associated with the relationships between time and contract on utilisation and sharing can be identified as occurring at two levels: in the conclusion of the contract, and in its content.

The conclusion of the contract

4The temporal element may constitute an obstacle to the convergence of the wills forming the contract, first of all because time is partly a cultural and an individual phenomenon: there may be a divergence between objective time and subjective time. Secondly, two legal acts – prior informed consent (PIC) and mutually agreed terms (MAT) – each with its own temporality – exist side by side in the Nagoya Protocol. Their chronology may therefore be problematic.

Objective time and subjective time

5Legal time is necessarily objective time, the only form that can apply to the design and application of the abstract norms which are the rules of law. However, subjective time – time as it is actually experienced – varies according to each individual and each society, and necessarily influences economic operators. The user of the genetic resource or traditional knowledge will often be under the sway of economic time, and of the need for speed that permeates business life, whereas the provider’s behaviour should be more focused on the long term, and on the sharing of benefits, without taking account of cultural differences in the perception of time.

6For users, the speed of the procedure for accessing resources and knowledge will contribute to the attractiveness of national rights, especially in competitive situations in which the genetic resource is located in more than one country. Examples that immediately come to mind include the reasonable period of time for prior consent as stipulated in Article 6(3) of the Protocol, differentiated procedures for access to genetic resources, e.g. in order to speed up access for non-commercial research,2 and the importance of procedures for determining who should give the required consent, especially in the case of indigenous and local communities, which will save users a lot of time.

7The users’ need for speed can also complicate negotiations with providers, who do not necessarily have the same individual or collective representations of time3 (Hirsch, 2016). This may lead prospectors to abandon their projects or obtain resources from another party, i.e. they may break off negotiations because they consider them to be taking too long, or that the flowering period has passed. In the event of a breakdown in negotiations, most legal systems recognise that the disappointed party may claim compensation from the party that broke off the negotiations if this breakdown was wrongful. For contracts on utilisation and sharing, the difficulty that arises would therefore be to determine whether behaviour that results from a cultural perception of time can really be qualified as wrongful. 

8Distortions related to subjective time may even cast doubt upon whether a contract has actually been concluded. In principle, in most legal systems, the actual time frame inherent to the formation of a contract, and particularly to negotiations, is abandoned in favour of a fictitious instantaneous exchange of consents. This is known as contracting “at first sight”. National judges should therefore base the contract date on the moment at which the written contract was signed. Conversely, in some customary legal systems, the conclusion of a contract is linked to the performance of a ritual, which is necessarily of a long-term nature. If the written contract is signed without the performance of the ritual, has the supplier really understood the meaning of signing the contract? Did he really give his consent? The risk of undermining contracts that is raised by these questions is easy to imagine, and could lead to users facing the threat of legal action to annul the contracts on grounds of lack of consent or vitiated consent.

PIC and MAT: what is the chronology?

9Another set of time-related difficulties specifically arises as a result of the contract formation process under the Nagoya Protocol, which appears to require a certain chronology of operations. Articles 5 and 6 of the Protocol distinguish, on the one hand, between the utilisation and sharing of benefits, subject to mutually agreed terms, i.e. a contract, and on the other hand, the prior informed consent of the provider to authorise access to the genetic resource. There would therefore be two distinct and consecutive legal acts: first the contract on utilisation and sharing, and then the access authorisation. This chronology may be surprising: consent to access is presented in second place, whereas it is logically a prerequisite to the use of this resource and to the sharing of the resulting benefits. Moreover, Article 1 of the model sharing contract arising from the Order of 13 September 20174 adopts a different presentation than that found in the Protocol. Here, the contract has a dual purpose: first, authorising access to the resource, and second, governing utilisation and the sharing of benefits.

10Nevertheless, the chronology adopted by the protocol is far from devoid of logic and even appears to be consistent with the doubly pleonastic term of “prior informed consent”. This is because, on the one hand, consent to a legal act is a prerequisite prior to the performance of the obligations resulting from that act, and on the other hand, consent only really exists if it is given in full knowledge of the facts, but not if it is given under the influence of an error or deceit. The cumbersome nature of the expression reflects the need to reinforce the quality of consent, and therefore of the information on whose basis it is given. In order to protect the provider in its decision to grant access to the resource, this provider must be aware of the utilisations and benefit-sharing arrangements that will arise from such access. In other words, an access authorisation could not be granted in an informed manner if the terms of utilisation and sharing had not already been agreed upon. In practice, of course, the two legal acts may be concurrent and combined in a single instrumentum, as provided for, inter alia, by French law.

11The difficulties that may arise from this chronology of two legal acts should be underlined. For example, if an access authorisation were to be ultimately denied, the contract would be necessarily rendered null and void, since it would be impossible to make use of the resource. Nevertheless, denial of access, as well as an excessive delay in issuing an access permit after reaching an agreement on the utilisation and sharing of benefits, could also be viewed as a breach of contract. For example, an excessive delay in authorising access could lead to the provider being held liable and obliged to compensate for damage caused by the delay in using the resource or by the inability to obtain samples, if this activity is subject to temporal constraints (e.g. seeds, flowers, etc.).

The content of the contract

12While time poses various problems in relation to the conclusion of the contract on utilisation and sharing, it creates just as many, if not more, difficulties with regard to the content of the contract. It is no longer simply a matter of overcoming current difficulties, but of foreseeing and resolving those linked to the vagaries of the future. This makes it difficult to define the utilisation of the genetic resource and the sharing of benefits, both of which, by definition occur in the future and are largely unpredictable.

Defining future utilisation

13Since the main purpose of the contract is to authorise the utilisation of a genetic resource or traditional knowledge, the duration of this use is obviously a key element: the value of this use varies according to whether it is authorised for one, ten or twenty years, for example. The difficulties associated with subjective time, which have already been mentioned with regard to the formation of the contract, could also apply here.

14Another problem may be posed by the dissociation of access authorisation and the contract of utilisation provided for by the Nagoya Protocol. Since they are envisaged as two separate legal acts, their duration may also differ: access may be granted for a short period of time when the period of utilisation is much longer. For example, if a single specimen collected were to perish due to a special case such as fire, then utilisation would no longer be physically possible. Therefore, could the user invoke the termination of the contract if a new access authorisation were not granted? In essence, the question is whether the contract is for the utilisation of the genetic resource as interpreted in the abstract sense, or solely on the basis of the concrete specimen collected by the user. Conversely, the question of what happens to the specimen when the term of utilisation of the genetic resource has expired also arises, unless it is specified in the contract. Is the user required to return it to the provider or simply destroy it? The issue at stake is once again the link between the access authorisation and the contract of utilisation: logically, the sole reason for the existence of the authorisation is the prospect of the intended use.

15The main difficulty is likely to arise when the parties have not agreed upon the term of the utilisation of the genetic resource or traditional knowledge. It should also be noted that, while French law governs the term of access to the resource,5 it remains silent on the term of utilisation. Of course, this duration inevitably varies according to the intended use, and depends on the sector of activity, but it is nonetheless surprising that Article 5 of the contract, entitled “Term and termination” merely provides for the effective date of the contract, without even asking the parties to specify its duration.

16Where the term of use remains indefinite, an initial solution would be to apply ordinary contract law in order to enable either party to terminate the contract unilaterally and at any time, subject to providing reasonable notice. However, this solution seems difficult to apply in the context of the utilisation of genetic resources. For example, a situation in which the provider is able to terminate a contract when the user has already made significant investments in the use of the resource seems inconceivable. More generally, the solution would be contrary to the Nagoya Protocol’s aim of increasing legal certainty, even if a notice period were respected. Giving the user six months, one year or even two years’ notice would be insufficient, considering the time required for research and development based on genetic resources.

17Another solution could be an implied term, inferred by a judge from the intended use of the genetic resource. However, not only are the terms of contracts rarely set by judges, such a practice would also assume that the utilisation does have an intrinsic duration, which does not apply to basic research or to the conservation of a specimen by a museum, for example.

18Should we therefore assume that the resource could be used for an unlimited period of time if the contract does not specify any term? This could be seen as contrary to the prohibition of perpetual commitments, which is even a principle of constitutional value in French law. The user would be obliged to share the benefits indefinitely, but it could be argued that this would only be fair compensation for its right to utilise the resource indefinitely. As for the provider, it would be obliged to tolerate the utilisation of its resource indefinitely, which raises the question of the nature of the right to utilise the resource. As in the case of literary and artistic property, a distinction must undoubtedly be made between the material good that is the specimen collected – such as a drawing, painting or sculpture – and the immaterial right enabling the genetic resource to be used – such as the right to reproduce the work. While an access authorisation could conceivably assign a property right for the specimen to the user – a right that is perpetual by its very nature6 – it would be trickier to interpret the right of use as a property right or even a real right, i.e. a right relating directly to the genetic resource, without the involvement of a debtor. The right of utilisation appears to be a personal right, an obligation on the part of the provider, and the contract of utilisation can be likened to a type of lease. However, the obligations – particularly those incumbent upon the lessor – are subject to the prohibition of perpetual commitments in order to avoid any resurgence of the perpetual divisions of property that characterised the feudal system. The reasons for this prohibition can be found in the Declaration of the Rights of Man and of the Citizen of 1789, which asserted that property is an inviolable and sacred right, implying that it is plain and whole, in contrast to the feudal system.

19The question is therefore whether there are also grounds for prohibiting the perpetual utilisation of genetic resources. On the one hand, the Convention on Biological Diversity marked a paradigm shift: genetic resources are no longer treated as a common heritage, but are on the contrary subject to national sovereign rights. Authorising perpetual use of the resource by a third party, if the contract does not specify the term of utilisation, could therefore be considered contrary to this sovereignty. On the other hand, it may seem inconsistent to impose a time limit on the use of genetic resources by applying the prohibition of perpetual commitments, given that the Nagoya Protocol aims to promote access to genetic resources, and in so doing, to facilitate their use and the sharing of benefits.

20This difficulty relating to the term of utilisation is ultimately symptomatic of a more fundamental and even more delicate question: that of the conventional definition of utilisation. As has been pointed out, the contract is an act of foresight, and the particularity of the contract under the Nagoya Protocol is that it relates to a future utilisation that is not always foreseeable, or that may vary in the future, as in the case of research. Indeed, Article 2(c) of the Protocol, rather than containing a list of specific utilisations, retains an open-ended definition in which genetic resources are utilised to conduct “research and development activities on the genetic and/or biochemical composition of genetic resources”. The contract must obviously define the utilisation precisely, otherwise consent would not be truly informed. It should be noted that the Bonn Guidelines,7 rather than promoting a positive definition of utilisation that could set these uses in stone, instead urges parties to envisage “Any limitations on the possible utilisation of the material”.8 A negative definition of utilisation seems more flexible, since it can encompass all uses that may occur in the future, other than prohibited uses. Of course, there is nothing to prevent the parties from opting for a positive definition of utilisation, but in that case they would be urged to include a “change of intent” clause, stipulating that the contract terms may be renegotiated in the event of a change of utilisation.9

Defining benefit sharing

21The difficulties associated with the unpredictability of the future are also apparent when it comes to establishing a contractual definition of benefit sharing. Two points are especially problematic: the timing and the balance of benefit sharing.

22Regarding the timing of benefit sharing, this raises the question of how to define the operative event for benefit sharing, since it may be an uncertain event in the future. Ideally, national legislators should endeavour to answer this question. A decision is also required on whether there is a need to compensate the provider solely for the use of the resource. In other words, is the utilisation alone a benefit to be shared, or must it necessarily lead to concrete results? Article 5(1) of the Protocol and Article 15(7) of the CBD are not very explicit. The latter, by providing for “...sharing, in a fair and equitable way, the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources”, could be interpreted as limiting benefit sharing to the results of utilisation only.10 On the other hand, the example of the conservation of the genetic resource by the user demonstrates the extent to which this strict interpretation of benefits can be reductive: surely conservation itself is of benefit to a museum?11 However, if the mere utilisation of a resource requires the sharing of benefits, the question is whether it is subject to an obligation or whether it is merely an option for the user. For example, if the user collected a specimen but never utilise it, would benefits still be due? And if so, how could they be measured, if benefits for the conservation of the resource alone were not defined in the contract?

23As for the concrete results that may be generated by utilisation, they are obviously intended to be shared. The focus of the difficulty now changes: since these benefits are merely potential, in that they depend on research carried out by the user, the problem relates to the role of time in the balance of sharing. How can we provide for a fair and equitable sharing of benefits such as a scientific discovery or the filing of a patent, which are not yet known when the contract is entered into? The contract may at least be partly described as an aleatory contract, i.e. a contract in which the performance of one of the parties depends, in terms of its existence or consistency, on an uncertain event, as in the case of insurance or lifetime annuities. In other words, sharing will only occur if results are obtained (random event), but the method of sharing provided for in the contract must be equitable.

24There is no real difficulty where the national legislation itself determines benefit sharing. This is partly the case in French law, which defines a maximum percentage of 5% of the annual worldwide sales before tax and other income derived from products or processes obtained from the genetic resource.12 On the other hand, if the law remains silent, could one of the parties apply to the courts for the annulment of the contract on grounds of inequitable benefits if the contract provides for a lump sum rather than a percentage of the volume of sales of the derived product, or if the percentage assigned to the traditional knowledge in question is too low compared to the percentage assigned to the resource by the contract, for example? The question is therefore whether fair and equitable sharing is a genuine condition for the validity of the contract, merely an objective, or – dare we say it – wishful thinking? It is probably merely an objective, particularly in view of the choice of the terms “fair” and “equitable”, which have no precise legal value (rather than “imbalance of benefits”, for example), or the fact that Article 5(1) of the Protocol states, in fine, that “Such sharing shall be upon mutually agreed terms”, which relates solely to the parties’ wishes. More generally, weakening contracts by requiring them to be objectively balanced – when it is particularly difficult to measure the value of an outcome that is both uncertain and unpredictable – would be contrary to the Nagoya Protocol’s objective of ensuring legal certainty. Judges could therefore rely on the legal mechanisms of domestic law to ensure a minimum balance in the contract. Such mechanisms could perhaps be used to good effect by exercising greater vigilance over bargaining power and the quality of the provider’s consent.

25This approach could also resolve a final difficulty: that of the imbalance in the contract, not from the moment of its formation, but due to subsequent changes in circumstances. Examples include the discovery of commercial potential when the agreed utilisation is non-commercial, or the extinction of a species, which would increase the value of a specimen added to a collection. Of course, the parties are strongly advised to include a renegotiation clause. Failing this, most legal systems provide for a mechanism allowing the judge to revise or terminate the contract in the event that the performance of the contract becomes excessively onerous for one of the parties due to unforeseeable changes in circumstances. Is the reference to fairness and equity of sharing in the Protocol likely to encourage judges to extend this mechanism to the case of a contract becoming less advantageous to the provider, on grounds of the duty to perform in good faith, for example?

Conclusion 

26Examination of the different points of contact between time and the contract of utilisation and sharing reveals the extent to which the success of the Nagoya Protocol is dependent upon the contract – and therefore upon the wishes of resource providers and economic operators – but also, and above all, upon national legislation. Increasing the number of contracts, which is the only way to achieve the Protocol’s objectives, will certainly depend upon changes in mentalities, power relations and economic issues. It will also require each State to develop a contractual system that is both flexible and secure: in short, a system that is sufficiently attractive to deter biopiracy. It also assumes that this legislative effort will be common to all States, so that users do not systematically turn to those that have imposed no regulation, or which have implemented regulation that is insufficient in relation to the protocol. The gamble of using the contract as a vehicle to promote the protection of nature could then pay off, but for how long? A contract-based system of biodiversity protection is the product of an anthropocentric approach to nature as a legal subject, in this case the subject of a contract. This approach may already seem outdated at a time when some legal systems have already granted legal subject status to certain components of nature or to ecosystems such as the Amazonian forest or the Ganges river.