Consultative Opinion on the Compatibility between Certain Provisions of the Convention on Biological Diversity and the Agreement on Trade Related Aspects of Intellectual Property Rights as to the Protection of Traditional Knowledge

The basic issues analyzed in this consultative opinion were: - Are there situations where the Convention on Biological Diversity (CBD) and the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) impose contradicting obligations upon the parties to them? - To the extent that this is the case, how has this conflict to be solved? The court interpreted the scope and meaning of the obligations imposed by the CBD and the TRIPs, examined possibilities of incompatibility including questions of coexistence of the two regimes and potential conflicts on the level of implementation. Finally it addressed the question of synergies between CBD and TRIPs. It concluded that the CBD and the TRIPs Agreement served different purposes. Thus there was no inherent contradiction between them. Nothing in Art. 27 (3)(b) of the TRIPs Agreement, relating to patentability, required any party to that agreement to violate any obligation resulting from Art. 8(j) or any other provision of the CBD. However, an effort had to be made that national patent laws and other laws relating to intellectual property were designed and applied in a way which took duly into account the objectives of CBD, in particular the principle of equitable benefit sharing.