International Treaty on Plant Genetic Resources for Food and Agriculture

The Multilateral System

FAQs

This website provides opinions and advice prepared by a sub-committee between 2010 and 2013, in the form of frequently asked questions, unless otherwise specified at the end of the reply to question. These FAQs cover issues that have repeatedly been raised by users of the Multilateral System.

The Governing Body established the Ad Hoc Technical Advisory Committee on the Multilateral System and the Standard Material Transfer Agreement (the Committee) through Resolution 4/2009, as an advisory and technical mechanism to assist the Secretariat in providing support to users of the Standard Material Transfer Agreement (SMTA) and the Multilateral System in the implementation of the Multilateral System.

At its Fifth Session, the Governing Body took note of the opinions and advice provided by the Committee as helpful guidance for Contracting Parties in implementing their obligations under the Treaty, and requested the Secretariat to make those opinions and advice easily available, including through its website, so that all users could benefit from the guidance.

Identification of PGRFA under the management and control of Contracting Parties and in the public domain

Identification of PGRFA under the management and control of Contracting Parties and in the public domain

The Ad Hoc Technical Advisory Committee noted that under Article 11.2 of the Treaty all PGRFA of crops and forages listed in Annex 1 of the Treaty that are “under the management and control of the Contracting Parties and in the public domain” are automatically part of the Multilateral System. The Committee also noted that the legal situation as to what should be regarded as material under the management and control of the Contracting Party and in the public domain may well vary from country to country. It recognized the desirability of a coherent approach in the application of these concepts, which are at the heart of the Multilateral System.

In considering the meaning of these concepts, the Committee agreed that the Vienna Convention on the Law of Treaties, which requires a literal interpretation of treaty provisions, should be followed.[1]

The Committee was of the opinion that the expression “under the management” means that a Contracting Party has the power to undertake acts of conservation and utilization in relation to the material: it refers to the capacity to determine how the material is handled and not to the legal rights to dispose of the PGRFA. The ordinary meaning of “control’ in this context focuses on the legal power to dispose of the material. In other words, it is not sufficient that the PGRFA be ‘managed’ by a Contracting Party (e.g. through conservation in a genebank); it must also have the power to decide on the treatment to be given to such resources.[2]

The Committee considered that the expression, “of the Contracting Parties”, obviously includes material held by structures of the central national administration, such as government departments and national genebanks. It may or may not cover material held by autonomous or quasi-autonomous entities normally considered to be part of the national plant genetic resources system. Likewise, special issues may arise in the case of Federal States. There is an expectation on the part of Contracting Parties that all such material, that is not automatically included, should be brought within the Multilateral System through positive action.[3]

The Committee noted that the expression, “PGRFA under the management and control of the Contracting Parties”, encompasses both PGRFA in in situ condition and that held ex situ

On the term, “in the public domain”, the Committee noted that there were two possible meanings. One meaning is the concept of public property under administrative law. The other meaning refers to material or information that is not subject to intellectual property rights. The Committee considered that the concept of “public domain”, as used in article 11.2 of the Treaty, should be understood in the context of intellectual property law. 

PGRFA under the management and control of the Contracting Parties, and in the public domain, are part of the MLS without any declaration or notification. However, actual use of material depends on information being made public about what materials are available and where they may be accessed, along with related non-confidential information.

 

Source “Opinions and Advice booklet 2015


[1] Article 31.1 of the Vienna Convention on the Law of Treaties provides that “[A] treaty shall be interpreted on good faith in accordance with the ordinary meaning to be given to the terms of the Treaty in their context and in the light of its object and purpose.”

[2] It should be noted that Article 11 does not refer to the “property”, ‘ownership’ or ‘possession’ of the PGRFA. Paragraphs 2 and 3 in Article 11 refer to “holders” and those “who hold”, respectively. In relation to the resources possessed by the CGIAR Centres, the term “held” is also used (article 15.1).

[3] The Committee noted that the Governing Body of the Treaty, at its Third Session, had encouraged ‘Contracting Parties, as appropriate, in reporting on their plant genetic resources for food and agriculture in the Multilateral System, to provide information on the collections of legal persons not part of the government, whom they regard as forming part of their national plant genetic resources systems and who are willing to make such information available’, Resolution 4/2009

Legal and administrative measures to encourage natural and legal persons to voluntarily place material in the Multilateral System

Legal and administrative measures to encourage natural and legal persons to voluntarily place material in the Multilateral System

Under Article 11.3 of the International Treaty, Contracting Parties agreed “to take appropriate measures to encourage natural and legal persons within their jurisdiction who hold plant genetic resources for food and agriculture listed in Annex I to include such plant genetic resources for food and agriculture in the Multilateral System”.

Several Contracting Parties and other stakeholders have asked the Secretariat what sort of measures Contracting Parties could take to encourage natural and legal persons within their jurisdictions to include Annex I plant genetic resources for food and agriculture in the Multilateral System.

In the opinion of the Ad Hoc Advisory Committee, the decision on what measures to establish under Article 11.3 of the International Treaty is left to the discretion of Contracting Parties. Those measures may include, but are not be limited to, financial or fiscal incentives to holders of material (e.g. eligibility for public funding schemes). They might also consist of policy and legal measures, administrative actions setting up domestic procedures for inclusions, or awareness raising efforts (especially at the level of farmers).

The Ad Hoc Advisory Committee considered the sample letter of inclusion, currently being used to notify the Secretariat of Contracting Parties’ material in the Multilateral System, or material included by natural and legal persons in the Multilateral System, and agreed to review it at the next meeting. It encouraged the Secretariat to continue to compile the notifications of inclusion of material in the Multilateral System and publish the information contained therein on the website of the International Treaty.

 


Source “Opinions and Advice booklet 2015

Practical and legal implications for natural and legal persons putting material into the Multilateral System

Practical and legal implications for natural and legal persons putting material into the Multilateral System

The Ad Hoc Advisory Committee considered the meaning of “putting material in the Multilateral System”, and agreed that the concept involved (a) making information on the material placed in the Multilateral System public, so that potential recipients might request it, and (b) a commitment to make the material available upon request, in accordance with the provisions of the Treaty and by use of the SMTA. It could also be possible to put material into the Multilateral System by transferring it to the collection of a national genebank of a Contracting Party, or the genebank of an international institution that has concluded an agreement with the Governing Body, under Article 15 of the Treaty.

In regard to natural and legal person wishing to put material in the Multilateral System, the Ad Hoc Advisory Committee agreed that there are various effective means by which natural and legal persons could include material in the Multilateral System such as: notification to the Treaty Secretariat or an equivalent public statement, and, in the case of ex situ material, by transferring the material to a genebank whose collections are part of the Multilateral System.

With regard to the notification of inclusion, the Ad Hoc Advisory Committee raised a number of questions and issues. The Committee agreed that further examination of all these questions was required, and recommended that a further paper be prepared, in collaboration with relevant stakeholders, in particular the industry, which would raise and examine relevant legal issues and practical questions arising from natural and legal persons putting material into the Multilateral System. The paper would form the basis for the preparation of a short, user-friendly and practical explanatory note that might be made available to those considering putting material into the Multilateral System.

The Ad Hoc Advisory Committee also recommended that the Treaty Secretariat provide more information, in the paper, on the recipients of project funding from the Global Crop Diversity Trust, or the Benefit-Sharing Fund, as well as the legal provisions requiring such recipients to make material, covered by the project funding, available under the terms of the Multilateral System. An example was given of a Contracting Party, which has followed the same approach, details of which will be provided at the next meeting.

 


Source “Opinions and Advice booklet 2015

Transfer and use of Plant Genetic Resources for Food and Agriculture under the SMTA

Transfer and use of Plant Genetic Resources for Food and Agriculture under the SMTA

Transfers to service providers          

The Ad Hoc Technical Advisory Committee considered situations wherein Multilateral System material is transferred to services providers who will conduct analyses or any other services on the material, on contract or any other arrangements, for the provider, and not for any other purposes. The Ad Hoc Technical Advisory Committee was of the opinion that in cases where materials under the Multilateral System are transferred to service providers, the person transferring them has the obligation to exercise due diligence to ensure that the service provider does not use the material in any ways other than stipulated in the agreement for those services.    

In such cases, it would not be appropriate to use the Standard Material Transfer Agreement (SMTA). Instead, the provider of the material should exercise due diligence in order to ensure that the service provider destroys the material or returns the material after the conclusion of the service. If the service provider wishes to use the material further for conservation and utilization for research, training and breeding, it should be made available under the SMTA.

Transfers to farmers   

The Committee agreed that ultimately, the use of PGRFA by farmers is the best way of conserving, sustainably using and developing crop and forage diversity.  To this end the committee members acknowledged the key importance of farmers being provided access to material through the MLS.

The problem highlighted by the Committee concerned difficulties associated with distributing materials to farmers using a written and signed SMTA, particularly small farmers in developing countries.  The SMTA will not be in the language of many of those farmers.  And if it were, many of them could not read it in any case. Expecting them to use the SMTA when they themselves pass it on to other farmers seems highly impractical.

The Committee requested the Secretariat to commission a paper on possible ideas on practical ways to pass material to farmers that are consistent with the objectives of the Treaty and the Multilateral System, for consideration at the next meeting.

 


Source “Opinions and Advice booklet 2015

Restrictions on further transfer of Plant Genetic Resources for Food and Agriculture under development

Restrictions on further transfer of Plant Genetic Resources for Food and Agriculture under development

The Committee considered whether it is possible to put restrictions on the further transfer of this material to a third party, when transferring Plant Genetic Resources for Food and Agriculture under Development under an SMTA. The Committee concluded that the Provider has the discretion to decide who may access such materials. It further concluded that he has the right to oblige the Recipient, if he so wishes, not to transfer these Plant Genetic Resources for Food and Agriculture under Development to a third party. It noted that such additional conditions would, in normal commercial practice, be confidential, and contained in a separate document that does not need to be transmitted to the Governing Body.

This conclusion is based on the following elements.

A Recipient of a Plant Genetic Resources for Food and Agriculture under Development is not obliged to make those materials available under an SMTA, on request. Article 6.5 of the SMTA (which regulates the transfer of Plant Genetic Resources for Food and Agriculture under Development) provides that such resources shall be transferred “under the terms and conditions of the Standard Material Transfer Agreement, through a new material transfer agreement”. Article 6.5a further provides “that Article 5a of the Standard Material Transfer Agreement shall not apply”. Article 5a, which contains an obligation on a Recipient of Plant Genetic Resources for Food and Agriculture under Development to make these available to others, therefore does not operate in the case of a transfer of Plant Genetic Resources for Food and Agriculture under Development.

Article 6.6 of the SMTA allows a Provider to attach additional conditions to the transfer of Plant Genetic Resources for Food and Agriculture under Development:

Entering into a material transfer agreement under paragraph 6.5 shall be without prejudice to the right of the parties to attach additional conditions, relating to further product development …

From the above provisions of the SMTA, it is clear that a person holding or transferring Plant Genetic Resources for Food and Agriculture under Development may refuse access to them. Moreover, as every transfer of a Plant Genetic Resources for Food and Agriculture under Development in the chain of development that may lead to a commercialized product is to be effected in accordance with Article 6.5 of the SMTA, all the subsequent Recipients enjoy this right.

The developer (or the chain of developers) of Plant Genetic Resources for Food and Agriculture under Development therefore has unlimited discretion as to whether or not to make these resources available, from their initial transfer until the time of the commercialization of a Product that incorporates them.

In the light of the above, the Committee considered that a Provider may, in the exercise of his discretion under Article 6.5a of the SMTA, require a Recipient to exclude another person from access to his Plant Genetic Resources for Food and Agriculture under Development, in transferring such resources. This requirement would form part of the “additional conditions” that, in accordance with Article 6.6 of the SMTA, a Provider may attach to the transfer of Plant Genetic Resources for Food and Agriculture under Development.

The purpose of Article 6.6 of the SMTA is to make possible normal commercial practice regarding sales of improved material and commercial cooperation in the seed sector, in such a way that Products may be developed, from which the Benefit-sharing Fund may benefit at the time of their commercialization. The Committee recognised that normal commercial practice includes the ability of the purchaser of an improved material, or of breeders cooperating in the development of an improved material, to exclude others from access to their material. The inability to do so might make such cooperation impossible.

The Committee considered that nothing in the SMTA requires the additional terms imposed by a Provider of Plant Genetic Resources for Food and Agriculture under Development on a Recipient to be publicly disclosed. While, in accordance with Articles 6.5 and 5e of the SMTA, the Provider is obliged to transmit certain information to the Governing Body, when transferring Plant Genetic Resources for Food and Agriculture under Development, this information does not include the additional conditions. Moreover, Annex 2, Part III (iv) of Resolution 5/2009 of the Governing Body provides that the information that is transmitted shall at all times be maintained in strict confidentiality, and that access to the data shall be strictly restricted to the Third Party Beneficiary, in the context of the possible initiation of dispute settlement.

 


Source “Opinions and Advice booklet 2015

Restoration of germplasm

Restoration of germplasm

The Committee was of the opinion that the term “restoration” typically refers to situations where plant genetic resources for food and agriculture of Annex I crops and forages are requested for restoration to the provider or the competent authority of the territory from which they were originally collected. The Committee noted that some provisions of the Treaty are relevant to restoration issues. These are: i) Article 15.1(a) and Article 15.1(b)(ii); and ii) Article 12.4 and Article 12.6.

Based on the analysis of those Treaty provisions as provided in document AC-SMTA-MLS 2/10/9, the Committee recognized that there were three possible options for the treatment of the issue of restoration of plant genetic resources for food and agriculture of Annex I crops and forages, which could be viewed as being compatible with the wording of the Treaty:

a. Require all restoration of plant genetic resources for food and agriculture of Annex I crops and forages to be subject to acceptance of the SMTA;

b. Require all restoration of plant genetic resources for food and agriculture of Annex I crops and forages to be subject to acceptance of the SMTA with the exception of material transferred in emergency disaster situations for the purpose of re-establishing agricultural systems;

c. Not treat restoration as an act of facilitated access requiring the use of the SMTA.

The Committee noted that the interpretation under c) above would be consistent with the practice of many Contracting Parties and international institutions. The Committee was of the view that the restoration of germplasm should not be considered an act of facilitated access requiring the use of the SMTA. However, such an interpretation would require a clear understanding of the concept of “restoration” lest the integrity of the Multilateral System be undermined.

The Committee considered that the most obvious case of restoration is where germplasm has been collected from in situ conditions in a country and conserved in a collection outside the country, and the original germplasm has been lost in some way: the germplasm is then restored to the competent authority of the country concerned.  This is the situation contemplated in Article 15.1(b)(ii) of the Treaty in respect of non-Annex 1 plant genetic resources for food and agriculture held by the CGIAR Centres.

The Committee also considered that any definition of “restoration” should also cover the restoration of breeding material that has been developed by national programmes. It further considered that the concept should also be extended to cases where plant genetic resources for food and agriculture held by a genebank or other collector, including material held by a natural or legal person, is placed voluntarily in the Multilateral System and is made available to another genebank or other collector, and the original plant genetic resources for food and agriculture is then lost: the germplasm is then restored to the original genebank or other collector concerned.

An understanding covering all situations could be the following:

“Restoration” in practice means the return of samples of plant genetic resources for food and agriculture to the Provider or the competent authority of the territory in which they were collected from in situ conditions or which bred the plant genetic resources for food and agriculture in its programmes or to the legal or natural person that placed the plant genetic resources for food and agriculture in the Multilateral System.”

The Committee recommended that the Secretary present its opinion to the Governing Body for consideration.

 


Source “Opinions and Advice booklet 2015

Non-food/non-feed uses of Plant Genetic Resources for Food and Agriculture

Non-food/non-feed uses of Plant Genetic Resources for Food and Agriculture

Transfer of plant genetic resources for food and agriculture for non-food/feed uses

Article 12.3a of the Treaty provides that: Access shall be provided solely for the purpose of utilization and conservation for research, breeding and training for food and agriculture, provided that such purpose does not include chemical, pharmaceutical and/or other non-food/feed industrial uses.

Based on this provision, Contracting Parties are only obliged to provide plant genetic resources for food and agriculture (PGRFA) under the facilitated access regime established by the Multilateral System when the conditions set out in Article 12.3a are met. Contracting Parties are not obliged by the Treaty to distribute materials in the Multilateral System under facilitated access conditions for purposes other than for utilization and conservation for research, breeding and training for food and agriculture.

Contracting Parties and international institutions have the freedom to decide under which instrument and conditions access to materials in the Multilateral System to be provided for non-food/feed uses. The Committee also considered that, if so wished by a Contracting Party or an international institution, access for non-food/feed may be provided under conditions similar, mutatis mutandis, to those applicable under the SMTA, including the payment obligations.

The limitation on use in the SMTA

Article 6.1 of the SMTA provides that: The Recipient undertakes that the Material shall be used or conserved only for the purposes of research, breeding and training for food and agriculture. Such purposes shall not include chemical, pharmaceutical and/or other non-food/feed industrial uses.

Recipients of PGRFA under the SMTA are bound by the express limitation imposed by these provisions. Acceptance of the SMTA makes it unnecessary to obtain an additional declaration from the party requesting material on intended use.

However, in cases where the party requesting material informs the prospective provider that the intended use is non-food/feed, or when it is otherwise obvious that the requested material is intended for non-food/feed purposes, the Committee believed that the prospective provider, under a general obligation of due diligence, is not obliged to provide facilitated access and should take the required steps to ensure that the terms and conditions that the respective Contracting Party that  may have established for the distribution of materials for non-food/feed uses are applied. This should, however, not put an excessive burden on prospective providers, such as the need to undertake an investigation about the current or intended activities of the requesting party, such that would hamper the effective and efficient functioning of the Multilateral System.

Multiple-use crops

The second sentence of Article 12.3a of the Treaty reads as follows: In the case of multiple-use crops (food and non-food), their importance for food security should be the determinant for their inclusion in the Multilateral System and availability for facilitated access.

This provision, in referring to multiple-use crops (food and non-food), deals with the coverage of the Multilateral System and presupposes that multiple-use PGRFA are included in the list contained in Annex I of the Treaty. In the views of the Committee, these provisions imply that multiple-use crops should be transferred under the facilitated access regime when intended for food/feed and that, consequently, use of the SMTA is required in these cases. Accordingly, multiple-use materials of Annex I crops and forages should be transferred under an SMTA whenever their intended use is food/feed.

Whenever a recipient receives samples of multiple-use crops for non-food/feed purposes, the instrument under which he received them should bind him to an obligation to sign an SMTA in case the material is subsequently used for food and agriculture or Plant Genetic Resources for Food And Agriculture under Development are to be transferred for use for food and agriculture.

 


Source “Opinions and Advice booklet 2015

Transfer and use of plant genetic resources under the Multilateral System – transfer by providers and recipients, other than CGIAR Centres and other Institutions, to farmers for direct use for cultivation

Transfer and use of plant genetic resources under the Multilateral System – transfer by providers and recipients, other than CGIAR Centres and other Institutions, to farmers for direct use for cultivation

1. Recipients have the right to make plant genetic resources for food and agriculture (PGRFA) under development or product they have developed from PGRFA acquired from the Multilateral System available to farmers for direct use.

2. Providers that voluntarily include material in the Multilateral System maintain the right to make this material available to farmers for direct use for cultivation, subject to national legislation and requirements.

3. PGRFA received under the SMTA can be made available to farmers for direct use for cultivation only if there is a separate express permission allowing for such distribution from the provider that included such material in the Multilateral System.

4. No such permission would be required where germplasm is being restored to farmers that originally provided it.

5. PGRFA distributed to farmers for direct use for cultivation should not be transferred with the SMTA. They should be transferred with a statement that the material can be used directly for cultivation. The following is a suggested wording for the statement:

This material can be used by the recipient directly for cultivation, and can be passed on to others for direct cultivation.

Where PGRFA are transferred for both research and breeding and for direct use for cultivation, or where it is unclear whether the transfer is for one or the other purposes, then both the SMTA and the statement giving express permission for direct use for cultivation should be used, except in cases where the germplasm is being restored.

 


Source “Opinions and Advice booklet 2015

The practical and legal implications for natural and legal persons putting material into the Multilateral System

The practical and legal implications for natural and legal persons putting material into the Multilateral System

1. What exactly is meant by “putting material” into the Multilateral System?

  • Putting material into the Multilateral System, in one sense, means identifying specific accessions, lines, races or varieties, and undertaking to make a sample of these available, on request, under an SMTA.
  • When a sample of one of these is then provided to a Recipient under an SMTA, this creates obligations on the part of the Recipient that mean that this sample, in the form received, and as modified by that Recipient, or subsequent Recipients, is legally part of the Multilateral System. So only individual samples are put into the Multilateral System.
  • A natural or legal person may also very easily and effectively put material into the Multilateral System by providing it to an institution that already has an obligation to make materials it holds available under the Multilateral System, such as a national genebank in a Contracting Party, or an International Institution that has concluded an agreement with the Treaty to do so.

2. Can the person putting material into the Multilateral System continue to use it, without being bound by the conditions of the SMTA?

  • Undertaking to make samples of material available under the Multilateral System, providing them under an SMTA, or giving a sample or samples to an institution that has undertaken to make material available under the Multilateral System, in no way limits a natural or legal person’s normal freedom to operate with the rest of that material.
  • If a natural or legal person who has provided material under an SMTA has, for example, lost the original material, he may request a sample of that material from the person to whom it was provided, and receive it back without an SMTA being used.

3. Must a person undertaking to make material available under the Multilateral System, and wishing to continue to use it, divide those resources into (1) a part for the Multilateral System, and (2) a part for its own use?

  • No, because that person is not bound by the conditions of an SMTA for this material.

4. What are the basic obligations of someone putting material into the Multilateral System, by informing the Secretary of the Treaty?

  • The person undertakes, for specific plant genetic resources for food and agriculture (information about which he provides to the Secretary at the same time as the notification of making them available) to:
  • provide a sample of these resources to any person requesting them under the Multilateral System, through an SMTA,
  • include all available passport data and any other associated available non- confidential descriptive information, and
  • provide the sample free of charge, or at a minimal cost.

The person should publicly provide adequate information on these resources, for plant breeders who are thinking of using them, for example, on a website. Such descriptions should ideally include the information on the FAO/IPGRI Multicrop Passport Descriptor List.

5. Is there an obligation to maintain forever material put into the Multilateral System?

  • No, but, in practical terms, if for any reason specific plant genetic resources for food and agriculture are no longer available, the person is requested to inform the Secretary, and correct any publicly available information.

6. May materials of crops be provided under an SMTA?

  • The Treaty provides that only crops in Annex I to the Treaty are in the Multilateral System. Nothing, however, prevents non-Annex I materials to be provided under the same terms and conditions as Annex 1 crops, through use of the SMTA, as a number of Contracting Parties and International Institutions are doing.

7. Are Plant Genetic Resources for Food and Agriculture under Development in the Multilateral System?

  • The SMTA provides that access to Plant Genetic Resources for Food and Agriculture under Development shall be at the discretion of its developer, during the period of its development.
  • Plant Genetic Resources for Food and Agriculture under Development refers to Material that has been received under a previous SMTA (and is therefore in the Multilateral System), not to material held by a breeder that has not been received under an SMTA, and which is still in a development stage.

8. Can the person putting material into the Multilateral System transfer the same material to (1) other units of his company or institution, or (2) commercial partners and affiliates without using the SMTA?

  • Transfers to other units of the same company or institution (the same legal person) need not be made under the SMTA. If these units transfer the material outside the same company or institution, in response to a request under the Multilateral System, an SMTA should be used.
  • Transfers to commercial partners and affiliates (different legal persons) as part of normal business practice may be made without the use of an SMTA.

9. May one discriminate between persons requesting material, and supply it to some and not to others?

  • The basic principles of the Treaty requires that all persons under the jurisdiction of a Contracting Party who request a sample of material under the Multilateral System should be treated equally, and not discriminated against.

10. May one transfer material put into the Multilateral System to a Recipient in a non- Contracting Party?

  • Yes, nothing in the Treaty or the SMTA prevents it, but there is no obligation to do so.

11. Can a person under the jurisdiction of a state that is not a Contracting Party to the Treaty put material into the Multilateral System?

  • Nothing in the Treaty or the SMTA prevents it, though the national legislation of a State that is not a Contracting Party to the Treaty may do so.

12. Can material protected by intellectual property rights be put into the Multilateral System?

  • Yes, provided that the basic principle of the Multilateral System—that all material in it should be freely available to others for research, breeding and training for food and agriculture—is respected. Intellectual property rights that are not compatible with such free access would need to be waived, for the material to be transferred under an SMTA.

13. What are the reporting obligations?

  • There are no reporting obligations, apart from the normal reporting obligations of a Provider under an SMTA, for natural and legal persons putting material in the Multilateral System.
  • When transferring Material under an SMTA, the person doing so acts as a Provider, and accepts the reporting obligations of the SMTA, namely that in accordance with Article 5e, the Provider shall periodically inform the Governing Body about the Material Transfer Agreements entered into, at least once every two calendar years. This may be done by either:

(A) transmitting a copy of the completed SMTA,

or

(B) ensuring that the completed SMTA is at the disposal of the Third Party Beneficiary as and when needed;

stating where the SMTA in question is stored, and how it may be obtained; and providing the following information:

  • The identifying symbol or number attributed to the SMTA by the Provider;
  • The name and address of the Provider;
  • The date on which the Provider agreed to or accepted the SMTA, and in the case of shrink-wrap, the date on which the shipment was sent;
  • The name and address of the Recipient, and in the case of a shrink- wrap agreement, the name of the person to whom the shipment was made;
  • The identification of each accession in Annex I to the SMTA, and of the crop to which it belongs.

If the Provider chooses Option B, there is a legal obligation to keep the relevant information safe and unaltered. Under both options, where there is a physically signed SMTA, the signed document should be kept.

If a natural or legal person has given a sample to an institution that has already undertaken to hold material within the Multilateral System, that institution is responsible for reporting on any SMTA under which it makes this material available.

14. Does a Provider incur any liability for Material distributed?

  • No. By Article 9 of the SMTA, “The Provider makes no warranties as to the safety of or title to the Material, nor as to the accuracy or correctness of any passport or other data provided with the Material. Neither does it make any warranties as to the quality, viability, or purity (genetic or mechanical) of the Material being furnished. The phytosanitary condition of the Material is warranted only as described in any attached phytosanitary certificate. The Recipient assumes full responsibility for complying with the recipient nation’s quarantine and biosafety regulations and rules as to import or release of genetic material.”

15. Does a Provider have a responsibility for the subsequent actions of a Recipient?

  • No.

16. Can a Provider terminate an SMTA?

  • No, an SMTA remains in force so long as the Treaty remains in force.

17. What are the rights and obligations of a Provider, in relation to dispute settlement?

  • The SMTA provides that “Dispute settlement may be initiated by the Provider”. However, the Provider has no obligation to initiate a dispute. The Third Party Beneficiary would therefore act for the Treaty, and initiate a dispute, if necessary.
  • A Provider would be under an obligation to provide the SMTA to the Third Party Beneficiary, if this has not already been done.
  • The Third Party Beneficiary has the right to request that the appropriate information, including samples as necessary, be made available by the Provider, regarding its obligations in the context of the SMTA. There is, however, no obligation on a Provider of a material under the Multilateral System to maintain samples of materials provided.

18. If a legal person is wound up, sold, or subdivided, are obligations transferred?

  • If a legal person is wound up, and resources are to be discarded, the holder is invited to offer them to a national, regional or international genebank.
  • If a legal person is sold or subdivided, the resulting companies may wish to reconfirm their undertaking to the Secretary, depending on who now has ownership of the material in question.
  • If a legal person is subdivided, provision should be made for any relevant records relating to SMTAs issued, and any remaining reporting obligations, to be transferred to one of the successor entities.

 


Source “Opinions and Advice booklet 2015

Inclusion of material into the Multilateral System

Inclusion of material into the Multilateral System

With regard to the inclusion of material into the Multilateral System and its availability, the Committee noted that, while not being mandatory under the Treaty, the notification of PGRFA that are in the Multilateral System, in writing, to the Secretariat is a useful practice that should be encouraged and suggested that more efforts should be made by both natural and legal persons and Contracting Parties to supply such information. The benefits of such notification included making information available to potential users of the System.

The Committee also noted that some Contracting Parties may not have sent formal notifications to the Secretariat but chose to make information publicly available through other means, such as on-line databases.

Note by the Secretariat:

It informed the Committee to have received a number of notifications of inclusions of PGRFA into the Multilateral System from both Contracting Parties and legal persons in the course of implementation of Benefit-sharing Fund projects.

 


Source “Opinions and Advice booklet 2015

Commercialization of a product under the Multilateral System in the context of not-for-profit projects under Article 13 of the International Treaty

Commercialization of a product under the Multilateral System in the context of not-for-profit projects under Article 13 of the International Treaty

In response to the questions posed by the experts of a non-profit project, the Committee first considered whether the SMTA could be interpreted such that a philanthropic project would not be subject to the mandatory monetary benefit-sharing provisions of Article 13.2(d)(ii) of the Treaty. The Committee was of the view that, as the Treaty makes no exemptions for such projects, the obligations of Article 13.2(d)(ii) of the Treaty would apply. The nature of the project (whether public, private, or not-for-profit) has no relevance to these obligations.

 


Source “Opinions and Advice booklet 2015

Availability without restriction for further research and breeding under the Multilateral System: geographical extent of the restriction

Availability without restriction for further research and breeding under the Multilateral System: geographical extent of the restriction

The Committee considered whether the requirement for mandatory monetary benefit-sharing under Article 6.7 of the SMTA would only be based on sales of products for which a restriction to others for further research and breeding applies, or would also be based on sales of products in other jurisdictions, where there is no such restriction.

The Committee considered that, as mandatory monetary benefit-sharing is linked to the restriction for further research and breeding on the commercialized product, the quantification of the related payments would be based on jurisdictions where such restriction exists.

 


Source “Opinions and Advice booklet 2015

Commercialization of a product under the Multilateral System: calculation of benefit-sharing payments

Commercialization of a product under the Multilateral System: calculation of benefit-sharing payments

The Committee considered whether the calculation of benefit-sharing payments could be made, pursuant to Articles 6.7 and 6.8 of the SMTA, at points in the production and distribution chain prior to the final sale of seed by agro-dealers to farmers.

The Committee was of the view that, as the SMTA defines “commercialization” in relation to a sale on the open market, the related monetary benefit-sharing obligations would apply at the point of such commercialization.

 


Source “Opinions and Advice booklet 2015

Availability without restriction for further research and breeding under the Multilateral System: sale of hybrids

Availability without restriction for further research and breeding under the Multilateral System: sale of hybrids

The Committee considered whether, in cases where a genetic trait protected by intellectual property rights or contractual limits on use is introduced to a hybrid that is also marketed in an unprotected non-modified form, the restriction on the use of the modified form would affect the unmodified form and, as such, lead to mandatory monetary benefit-sharing.

The Committee considered that the monetary benefit-sharing obligation on commercialization is only triggered by restrictions on further research and breeding.

The Committee also considered that the un-modified form may constitute a product in itself and would therefore be unaffected, or considered separately from the product in respect of which the restrictions are imposed.

 


Source “Opinions and Advice booklet 2015

Transfer of Plant Genetic Resources for Food and Agriculture to affiliate companies and smta concluded on behalf of affiliate companies

Transfer of Plant Genetic Resources for Food and Agriculture to affiliate companies and smta concluded on behalf of affiliate companies

The Committee agreed that there is need to preserve the integrity of the Multilateral System and to avoid creating large administrative burdens in terms of verifying levels of controls within companies. The Committee reviewed its previous opinion on transfer of PGRFA that are in the Multilateral System to affiliate companies and advised that:

  • transfer to other units of the same company or institution (the same legal person) need not be made under the SMTA. If these units transfer the material outside the same company or institution, in response to a request under the Multilateral System, the SMTA should be used.
  • transfer of PGRFA to commercial partners and affiliates that are different legal persons would have to be made with the SMTA, regardless of the territorial location of the partners and affiliates.

The Committee also considered that the SMTA would provide flexibility as to the designation of “recipient”, and that affiliate companies may be named in the SMTA.

 


Source “Opinions and Advice booklet 2015

Restoration of breeding lines

Restoration of breeding lines

The Committee considered that, unless there would be evidence that the person requesting restoration of the material was the original breeder, the SMTA would have to be utilized.

 


Source “Opinions and Advice booklet 2015

Genera and species of Annex I Crops

Genera and species of Annex I Crops

The Committee noted that a practical way to approach the issue of PGRFA in Annex I would be to adopt the crop-based approach, i.e. to consider whether the material is part of the gene pool of the crop listed in Annex I, regardless of taxonomical issues.

The Committee noted that Annex I is organised by crops, with the other two columns being either exclusionary or indicative, but still based on the crop list. In addition, the Committee advised to consider the provisions of Article 11.2 of the Treaty as well as the definition of “Plant Genetic Resources for Food and Agriculture” in the Treaty, in the consideration of what falls under Annex I of the Treaty.

 


Source “Opinions and Advice booklet 2015

Collection, conservation and distribution through the SMTA of samples of plant varieties protected by Plant Breeder’s Rrights

Collection, conservation and distribution through the SMTA of samples of plant varieties protected by Plant Breeder’s Rrights

Regarding considered the question as to whether a genebank can collect, conserve and distribute samples of plant varieties protected by plant breeder’s rights, without the right holder’s consent, using the SMTA, in the jurisdiction where the plant breeder’s rights apply and in other jurisdictions. The Committee also considered the question in relation to the possibility of including material protected by intellectual property rights in the Multilateral System.

The Committee recalled the opinion it had given on a related issue at its second meeting in September 2010. The advice of the Committee was that it is possible for such material to be put in the Multilateral System, provided that the basic principle of the Multilateral System – that all material in it should be freely available to others for research, breeding and training for food and agriculture – is respected. In the view of the Committee, intellectual property rights that are not compatible with such free access would need to be waived, for the material to be transferred under an SMTA.

The Committee confirmed its previous advice and considered that the specific question posed in the document IT/AC-SMTA-MLS 4/12/6 would be outside of the operation of the Multilateral System, and thus not relevant to the mandate of the Committee.

 


Source “Opinions and Advice booklet 2015

Transfer of Annex I planting material for subsequent sale

Transfer of Annex I planting material for subsequent sale

The Committee considered whether the SMTA is to be used in cases where the transfer of Annex I planting material, after multiplication, is requested to a provider for the purpose of subsequent sale of the planting material.

The Committee considered that, the purpose of the transfer being commercial sale, the transaction would not take place under the Multilateral System and, hence, it would not be mandatory to use the SMTA.

 


Source “Opinions and Advice booklet 2015

Fees for germplasm distribution: minimal cost involved

Fees for germplasm distribution: minimal cost involved

The Committee considered whether the “minimal cost involved”, in the sense of Article 12.3(b) of the Treaty and Article 5a) of the SMTA, may be considered as including the transaction costs of germplasm distribution or as also including the cost of producing and conserving germplasm.

Recalling the spirit of the Treaty and the text of the relevant provisions, the Committee was of the opinion that the factors involved in calculating fees should be limited as far as possible, thus to cover only mailing or shipping costs and not germplasm producing and conservation costs.

 


Source “Opinions and Advice booklet 2015

Share this page