WIPO Alternative Dispute Resolution (ADR) for Plant genetic transfer / FAO disputes

The WIPO Arbitration and Mediation Center provided technical assistance to the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) Secretariat in developing the Rules for Mediation of a Dispute in relation to a Standard Material Transfer Agreement (Mediation Rules). The ITPGRFA Governing Body adopted the Mediation Rules in March 2011, and has requested the WIPO Center to act as Administrator thereunder.

Why resolve ITPGRFA SMTA disputes through ADR?

Plant genetic resources for food and agriculture are transferred under Standard Material Transfer Agreements (SMTAs) within the Multilateral System of the ITPGRFA. The conclusion and implementation of SMTAs may give rise to disputes, concerning different issues, such as the transfer of the genetic material, the use of the material, or intellectual property rights.

Based on a dispute resolution clause included in all SMTAs (Article 8), such disputes are to be resolved in a three-phase ADR process: amicable dispute settlement, mediation and arbitration.

ADR provides a flexible, time and cost efficient forum, where the parties may choose a neutral with expertise in plant genetic resource material transfers and with an understanding of the commercial, cultural and linguistic backgrounds of the parties.

Which disputes can be submitted to ITPGRFA SMTA dispute resolution?

The SMTA dispute resolution mechanism covers disputes arising out of SMTAs between the parties to the SMTA, i.e., the provider and the recipient. The Third Party Beneficiary, acting on behalf of the Governing Body of ITPGRFA and its Multilateral System, is also entitled to initiate dispute settlement procedures regarding rights and obligations of the parties under the SMTA.

What are the Third Party Beneficiary Procedures?

The Procedures for the Operation of the Third Party Beneficiary (Third Party Beneficiary Procedures) were approved by the Governing Body in 2009. The Food and Agriculture Organization (FAO) has been designated to act as the Third Party Beneficiary.

• Information and Amicable Dispute Settlement

The Third Party Beneficiary may receive information on possible non-compliance with the obligations of the provider or recipient under a SMTA from the parties under the STMA or any other natural or legal persons. The Third Party Beneficiary can request that appropriate information and samples be made available by the parties. (Article 4 of the Third Party Beneficiary Procedures)

If the Third Party Beneficiary has reason to believe that obligations under a SMTA may not have been complied with, it shall attempt in good faith to have the dispute resolved through negotiation. (Article 5 of the Third Party Beneficiary Procedures)

• Mediation

If the dispute cannot be resolved by negotiation, the Third Party Beneficiary shall commence or encourage the parties to commence mediation proceedings. (Article 6 of the Third Party Beneficiary Procedures) If mediation is chosen, parties may agree that the mediation shall be carried out in accordance with the Mediation Rules (see below).

• Arbitration

If a dispute has not been resolved by mediation, the dispute may go to arbitration. (Article 7 of the Third Party Beneficiary Procedures)

How does the mediation procedure work?

• Rules for Mediation of a Dispute in Relation to a SMTA

The Mediation Rules provide for an effective, balanced and impartial procedure. The mediation process is time and cost efficient and allows for interest-based solutions.

• How to submit a dispute to SMTA Mediation?

The SMTA Mediation process can be initiated if the dispute has not been resolved by amicable dispute settlement within six months after the issuance by the Third Party Beneficiary of the summary of information and the notice under Article 4 of the Third Party Beneficiary Procedures, or any shorter period of time agreed on by the parties to the dispute.

Mediation is a consensual process. Either party to the SMTA or the Third Party Beneficiary may file a Request for Mediation with the WIPO Center, and include its Acceptance of Mediation. The WIPO Center then sends information on the mediation process to the other party who can then submit its signed Acceptance of Mediation.

• How is the mediator appointed?

The parties have seven days from the commencement of mediation to agree on the person of the mediator. If the parties fail to reach an agreement within that period, the mediator is appointed according to the List Procedure provided in Article 6 of the Mediation Rules. The WIPO Center sends a list of qualified mediator candidates, which are selected from the list of experts established by the Governing Body, to the parties of the dispute. The parties can agree on a mediator from that list or indicate their respective preferences. Taking this into account, the WIPO Center appoints the mediator after confirming his/her impartiality and independence.

• Principal steps in mediation

• What are the fees and costs?

A specific not-for-profit Schedule of Fees is applied in procedures under the Mediation Rules, providing for administration fees and mediator’s fees.

• Electronic Case Facility

Parties in cases under the Mediation Rules may choose to use the WIPO Electronic Case Facility (WIPO ECAF) which allows parties and all other actors in a case to file submissions electronically in order to facilitate communication. In all respects, the WIPO Center has a strong commitment to procedural efficiency.

Are there additional ADR options offered by the WIPO Center?

In case the parties fail to reach a settlement through amicable dispute settlement or mediation, the WIPO Center also makes available the WIPO Expedited Arbitration Rules or the WIPO Arbitration Rules that parties can choose for the arbitration phase under Article 8.4c of the SMTA. The WIPO Center is recognized for the time and cost efficiencies of its specialized procedures.