Exclusive jurisdiction on cross-border trade in genetic resources and associated traditional knowledge under the 2010 Nagoya Protocol?

Abstract

The purpose of this contribution is to analyse the advisability of establishing an exclusive jurisdiction in cases of cross-border transactions concerning genetic resources (GR) and associated traditional knowledge (TK), as understood by the 2010 Nagoya Protocol. The Protocol obliges its Contracting Parties to check that trade in GR –the ultimate basis of biodiversity- and, where appropriate, that of the associated TK –developed by Indigenous and Local Communities- is carried out in accordance with a contract that must include, imperatively: the Prior and Informed Consent of the Provider Party of the GR/TK; the Mutually Agreed Terms between the Provider Party and the user of GR/TK; the reservation of a fair and equitable participation of the Provider in the benefits obtained by the user, arising from the access/utilization of GR/TK. Aware of the innate internationality of such transactions, the Protocol urges Provider Parties and users to manage the legal risks arising out the contract. But is not the purpose of Nagoya’s text to build a PIL system in this area, a task that falls on each Contracting State. Is well known that each sovereign is autonomous when designing his system of international jurisdiction, so the analysis starts taking in account the exceptionality of the establishment of exclusive jurisdiction fora and offers an strong arguments in the opposite way, based on the principle of proximity, the presence of substantive relevant public interests in the matter and the forum-ius correlation, in order to conclude by proposing the establishment of an exclusive forum in benefit of the Provider State of the GR/TK.