Some notes on the informal negotiations on the footnote in Article 11 on the nature of the provisions for transfer of technology in the agreement.
Mutually Agreed Process (MAP)
With regard to the informal negotiations over the footnote to Article 11 on technology transfer, we are aware of efforts to reintroduce the phrase “mutually agreed process,” something that first appeared in the pandemic text in INB12. This phrase is not widely used in other agreements and is found primarily in those involving either double taxation, arbitration, or dispute resolution agreements.
The informal proposal from Tuesday night is to combine both “mutually agreed process” (MAP) and “mutually agreed terms” (MAT) in the same sentence, so they are not seen as synonyms for each other. One interpretation is that MAP refers to the way the technology transfer is delivered. But others say that MAP addresses how negotiations are structured, and even would prevent states from conditioning market access or procurements on reaching agreements to transfer technology. These are significant differences in what the term means in the context of this agreement.
In general, the many attempts to introduce terms like voluntary or mutually agreed in the text are designed to put states in the position of consumers of products, which they are, but also to undermine their role as regulators of industry and guardians of the public interest.
It is also worth noting that while some negotiators claim it is not practical to mandate the transfer of technology (despite the many examples of where this has been done), they also want to ban the most effective ways of doing this.
The missing “other”
In the September 2024 version of the footnote, the text references to “non-coercive transfer and on mutually agreed terms” were “without prejudice to other measures that parties may take”
The more recent text being circulated retains the “without prejudice” phrase, but eliminates the word “other.”
This understanding is without prejudice to and does not affect the measures that Parties may take in accordance with their domestic or national legislation, provided that these measures comply with their international obligations on intellectual property.
By eliminating the word “other,” the footnote is less clear that non-voluntary measures are still allowed. The ONLY reason to eliminate the word “other” is to allow some states to argue that the only measures that are allowed are those that are consistent with the various versions of voluntary that end up in the first part of the footnote.
Defining technology transfer or agreement obligations on tech transfer?
KEI has proposed that the footnote begins with the words “The obligations regarding the transfer of technology in this [Article/Agreement] are understood to mean …”
The reason to say this upfront is to avoid having the WHO define technology transfer itself as a voluntary practice. Technology transfer is typically voluntary, but not always voluntary. The industry wants to define technology transfer as only something to be done voluntarily, and of course that is often (but not always) in their interest. By making it clear that the footnote only defines the nature of the obligations for tech transfer in the agreement, it reduces the risk that this footnote will be used as a precedent for other agreements to promote a global norm that governments can bargain for technology transfer, but not regulate or otherwise require it.