ABSTRACT
This chapter examines the role of contracts for mutually agreed terms under the 2010 Nagoya Protocol on Access to Genetic Resources and Fair and Equitable Sharing of Benefits Arising from the Utilization to the Convention on Biological Diversity (CBD) in the Arctic context. Despite being an instrument of public international law, the Nagoya Protocol relies heavily on private international law for its implementation. Agreements on access and benefit sharing in the form of mutually agreed terms are contractual in nature. It is in the context of the negotiation, implementation and enforcement of these contracts that private international law is most relevant. This chapter briefly considers why there is commercial interest in Arctic genetic resources. It then goes on to outline the key elements of the access and benefit sharing regime created by the CBD and the Nagoya Protocol. This is then followed by an examination of how the Nagoya Protocol interacts with private international law in the context of the contractual nature of access and benefit sharing and mutually agreed terms. Arctic domestic legislative regimes for access and benefit sharing are then outlined and an examination of how these legislative regimes interact with the rules of private international law is provided. But precisely how effective the close relationship between the CBD, Nagoya Protocol and private international law will be for resolving potential cross-border contract disputes remains unclear. It does appear that linking private international law to the CBD and the Nagoya Protocol was simply “to smart by half” and probably creates more uncertainty than is desirable.
