Developing Agreements with International Third Parties
Kew works with partners in over 100 countries. Many of our partnerships are formalised through bilateral or multilateral agreements with scientific research institutions (universities, botanic gardens, herbaria or research stations), as well as with government or intergovernmental bodies. Agreements with third parties take the form of either more formal Access and Benefit Sharing Agreements (ABSAs) which usually include government representatives as partners and deal with prior informed consent issues, or Memoranda of Understanding/Collaboration (MoUs or MoCs – herewith referred to as MoUs) which outline the partnership in a less formal way. Between 2006 and 2011 Kew agreed over 61 ABSAs and MoUs, in 37 countries – and a further 40 agreements are in the development or negotiation stage.
ABSAs and MoUs fulfill several functions: most importantly they facilitate the legal access and exchange of plant material (herbarium specimens, live plants, seeds, DNA), information and resources. These agreements allow Kew to set out its commitment to international conventions such as the Convention on Biological Diversity (CBD), the Convention on International Trade in Endangered Species (CITES), and national legislation relevant to biodiversity. ABSAs and MoUs also ensure that Kew’s collaborators are aware of the possible use of the material and data transferred to Kew. For example, the agreements outline the type of scientific research that may be carried out on the material by Kew and list the agreed benefit-sharing and capacity building activities. The agreements also ensure that both parties are clear as to the terms and conditions under which the material has been transferred – for instance, whether the material may be transferred to third parties, and if so under what terms, and whether the material can be commercialised.
As Kew’s ABSAs tend to be agreed between Kew and the government entity responsible for the transfer of plant genetic resources, and can be active for up to ten years, they are more costly and time consuming to draft and negotiate than a MoU, and may take several months to finalize. MoUs tend to be agreed more swiftly between Kew and an institutional partner and are usually for a shorter period than ABSAs, typically 3-5 years.
The Conventions team provide advice to Kew staff in setting up these international agreements. The advice takes the form of intranet guidance - through the Staff Guide to Collecting Use and Supply; meetings with Kew’s regional coordinators; and email, telephone and face to face advice. Guidance is developed from consultations with Kew’s Legal and Governance Department, following relevant international and national legislation relating to plant material, and advice from the Kew scientist leading the development of the agreement.
The Conventions and Policy Section (CAPS) staff work with Kew staff throughout any negotiations to ensure that any terms requested by collaborators are acceptable to Kew. In particular, the team advises staff about agreeing to any terms that are stricter than the standard conditions under which Kew regularly uses and supplies material. Such terms may impose an extra curatorial burden on Kew, and any potential resource impacts need to be assessed. Where stricter terms are agreed, Conventions and Policy Section staff and the project lead scientist record additional conditions for future reference – to ensure that Kew is always compliant.
In 2008, the CAPS team, in association with the Legal and Governance Department, developed a proforma MoC for staff use to ensure that standard agreed terms are generally used in our partnerships. In 2010, the team developed proforma ABSAs, for use primarily by the Seed Conservation Department (which are available in French and English), and suitable for use with both a government and non-government departments. These models are used to initiate negotiations with partners and to indicate how we work. They are also viewed as a good example of best practice in this area and regularly supplied to colleagues from other institutions wishing to develop their own model agreements.
The importance of Kew agreements in the international context is increasing. In 2010, Parties to the CBD adopted the Nagoya Protocol on Access and Benefit Sharing (ABS) provisions within the CBD. The provisions of the Protocol are yet to be fully developed, and implementation will be subject to national legislation. Many developing countries see the Protocol as the basis for further elaboration on access procedures. It is likely that new national access procedures may be developed, and there may be greater restrictions on use and supply of plant material. Therefore, it is vital that Kew should develop clear agreements with its partners, to enable Kew to implement its mission. The Conventions team will continue to work with staff to ensure that Kew’s agreements are compliant with any changes in legislation relating the Nagoya Protocol.
Project partners and collaborators
Sixty one project partners with agreements in 37 countries.