EQUITABLY SHARING BENEFITS FROM THE UTILIZATION OF NATURAL GENETIC RESOURCES:
The Brazilian Interpretation of the Convention on Biological Diversity

S. Peña-Neira, C. Dieperink and H. Addink

The utilization of natural genetic resources could yield great benefits. The Convention on Biological Diversity introduced a number of rules concerning the sharing of these benefits. However, the interpretation and application (legal implementation) of these rules is a matter of discussion among specialists around the world. In theory, the alternatives for the implementation of the equity principle vary. On the one hand, the role of private law can be emphasized by leaving freedom to contracting parties; on the other, a public law approach (enacting a national legal rule) can be chosen. By doing this, different expressions of equitableness (distributive, retributive or procedural) are accentuated. In this article, we will illustrate how biodiversity-rich Brazil has changed its initial approach. The Bioamazonia-Novartis contract, a retributive solution in a private law context, aroused many criticisms and was therefore changed by a distributive and procedural solution in a public law context. The core elements of the Brazilian solution could serve as a lesson for other countries that have to implement the Convention on Biological Diversity. Equitableness seems to be protected more in a public law context where distributive and procedural equity exists than in a private law context with its emphasis on retributive equity.

Cite as: S. Peña-Neira, C. Dieperink and H. Addink,Equitably Sharing Benefits from the Utilization of Natural Genetic esources: The Brazilian Interpretation of the Convention on Biological Diversity, vol 6.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (October 2002), <http://www.ejcl.org/63/art63-2.html>

Contents
1. Introduction
2. The Brazilian private law approach
3. The private law approach in practice: The Bioamazonia-Novartis contract
3.1 Contents of the contract
3.2 Societal reactions to the contract
4. Legal arguments against the private law approach
4.1 Violation of Brazil's sovereignty rights (Article 225 of the Constitution and Article 15 of the Convention)
4.2 Unfair benefit-sharing
4.3 Unlawful use of traditional knowledge (Article 231 of the Constitution and Article 15 of the Convention)
4.4 Détournement de pouvoir (abuse of power)
4.5 Violation of property rights (Article 5, para. 0, subpara. XXII of the Constitution and Article 1228 of the Brazilian Civil Code)
4.6 Violation of intellectual property rights
5. Brazil's public law solution
6. Reflection on the legal specification of the concept of equity in Brazil
7. Lessons learned from the Brazilian case
Notes

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