Bridges Trade BioRes • Volume 6 • Number 4 • 3rd March 2006

Biotech Liability Talks Progress on Scope, Damage, Causation

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The Open-ended Ad Hoc Working Group on Liability and Redress of the Cartagena Protocol on Biosafety, meeting on 20-24 February in Montreal, Canada, for their second meeting, were able to make some progress to bridge the broad chasms that separate positions on how the Protocol should treat the contentious issue. The talks were mandated by the Protocol itself in Article 27, which urges Parties to adopt before 2009 a “process with respect to the appropriate elaboration of international rules and procedures in the field of liability and redress for damage resulting from transboundary movements of living modified organisms” (see Bridges Trade BioRes, 28 October 2005). Discussions in Montreal focused on the scope of damage resulting from transboundary movements of living modified organisms (LMOs), the definition of “damage” and how to establish a causal link to the damage, and the actor to be held liable for the damage. On all three issues, delegates put together compilations of operational legal-type texts from a number of Parties. The operational texts mark a step closer among the positions on the three issues, building on narrative analysis submitted by some Parties and civil society before the meeting, and although divergences remain represented in the text and some criticised the tedious issue-by-issue, position-by-position process that led to their formation, the next meeting of the Working Group will likely seek to create similar papers for the eight outstanding issues. Parties have yet to address channelling of liability, role of parties of import and export, standard of liability; limitation of liability; mechanisms of financial security; settlement of claims; standing/right to bring claims; non- parties; complementary capacity building measures; and choice of instrument.

The question of the type of instrument that should embody the new regime on liability and redress for biotechnology was touched on, as was the standard of liability (e.g. a strict or fault-based standard) and how to finance the final instrument. Industry representatives as well as exporting countries expressed concern that financial security mechanisms, such as compulsory insurance, might operate as an economic trade barrier. However, sources suggested that detailed debates on these elements are being held until a more advanced phase of negotiations.

ICTSD Reporting; ENB Reporting, Vol. 9 No. 345, 27 February 2006.