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Realizing the Objectives of Public International Environmental Law Through Private Contracts: The Need for a Dialogue with Private International Law Scholars

Morgera, Elisa; Gillies, Lorna

This chapter maps little-studied interactions between public and private international law by comparing experiences in using private contracts to specify the meaning of international environmental treaty objectives that relate to equity (namely, fair and equitable benefit-sharing). In particular, the chapter contrasts two possible approaches in relying on private contracts: a bilateral approach – that is, reliance on ad hoc contracts under the Nagoya Protocol on Access to Genetic Resources and Benefit-sharing (ABS) under the Convention on Biological Diversity (CBD) – and a multilateral approach, namely reliance on standardised contractual clauses that have been intergovernmentally developed under the International Treaty on Plant Genetic Resources for Food and Agriculture (International Treaty). In both cases, private contracts have played a key role in specifying the meaning of certain obligations that were left vague in the treaty text in relation to the objective of equity. The chapter concludes with a series of key questions that would benefit from a more systematic dialogue between public international lawyers and private international lawyers.

BENELEX Working Paper No 14.-- Last revised 30 Nov 2017.-- To be published in: Duncan French, Kasey McCall-Smith & Veronica Ruiz Abou-Nigm (eds), Linkages and Boundaries in Private and Public International Law, Hart, 2018 (Forthcoming)
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