Summary report, 16–19 September 2024

Seed exchanges are crucial for sustainable agriculture and global food security. To support this, the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) has established the world’s first operational Multilateral System (MLS) of access and benefit-sharing (ABS), with a specific focus on plant genetic resources for food and agriculture (PGRFA). The MLS serves the agricultural community, including farmers, plant breeders, and researchers.

However, monetary benefit-sharing through the system has not lived up to expectations. Negotiations to enhance the MLS, first launched in 2013, aim to stimulate benefit flows while facilitating PGRFA exchanges, protecting farmers’ rights, and adapting to technological developments.

At its 12th meeting, the Working Group tasked with enhancing the functioning of the MLS conducted its deliberations on the basis of a package of measures proposed by Co-Chairs Sunil Archak (India) and Michael Ryan (Australia). The package includes a draft resolution, a draft revised Standard Material Transfer Agreement (SMTA) with a series of appendices, and a draft text for an amendment of Annex I (the list of crops in the MLS).

Historically, the enhancement process has been characterized by a fundamental divide. Developed countries have focused on expanding the list of crops in the Treaty’s Annex I, which defines the scope of the MLS, arguing it will generate more income to the Benefit-sharing Fund (BSF). Developing countries have conversely stressed that enhanced income flows need to materialize before they can agree to an expansion. This divide was still evident during the session. However, a breakthrough may be in sight: the Co-Chairs presented a new compromise proposal to establish a subscription mechanism with two alternative triggers for mandatory monetary benefit-sharing: early payment upon registration or deferred payment upon commercialization.

A series of crucial elements still need to be agreed upon, including on the amendment of Annex I and the inclusion of benefit-sharing from use of digital sequence information (DSI)/genetic sequence data (GSD). In light of the rapidly approaching deadline, set for the upcoming Governing Body (GB) session in November 2025, and with only two meetings remaining, the Working Group agreed to undertake intense intersessional work. Based on this work, which aims to enable understanding of technical issues and promote regional and stakeholder consultations, the Co-Chairs will table a revised proposal for the consideration of the Working Group at its 13th meeting, tentatively scheduled for March/April 2025.

The Working Group met from 16-19 September 2024 at the headquarters of the Food and Agriculture Organization of the UN (FAO) in Rome, Italy. Attracting approximately 80 participants, the Working Group is composed of spokespersons from the FAO regional groups and stakeholders, including farmers’ organizations, civil society, the seed industry, and research and academia including the CGIAR.

A Brief History of the Treaty

Concluded under the auspices of the FAO, the ITPGRFA is a legally-binding instrument that targets the conservation and sustainable use of PGRFA, and the fair and equitable sharing of the benefits arising out of their use for sustainable agriculture and food security, in harmony with the Convention on Biological Diversity (CBD). It establishes an MLS for facilitated access to a specified list of PGRFA including 35 crop genera and 29 forage species (Annex I), and institutionalizes monetary and non-monetary benefit-sharing from the utilization of these resources in the areas of commercialization, information exchange, technology transfer, and capacity building.

The Treaty was adopted on 3 November 2001 by the FAO Conference, following seven years of negotiations. It entered into force on 29 June 2004, and currently has 152 parties.

Key Turning Points

GB 1: The first session of the GB (June 2006, Madrid, Spain) adopted the SMTA and the Funding Strategy. The SMTA includes provisions on a benefit-sharing scheme, providing two options. First, the recipient can choose to pay 0.77% of gross sales from commercialization of new products incorporating material accessed from the MLS, if its availability to others for further research and breeding is restricted. Alternatively, the recipient can choose to pay 0.5% of gross sales on all PGRFA products of the species they accessed from the MLS, regardless of whether the products incorporate the material accessed and regardless of whether the new products are available without restriction. The GB further adopted:

• its rules of procedure, including decision making by consensus;
• financial rules with bracketed options on an indicative scale of voluntary contributions or voluntary contributions in general;
• a resolution establishing a Compliance Committee;
• a relationship agreement with the Global Crop Diversity Trust; and
• a model agreement with CGIAR and other international institutions.

GB 5: The fifth session of the GB (September 2013, Muscat, Oman) established the Ad hoc Open-ended Working Group to Enhance the Functioning of the MLS, to develop measures to increase user-based payments and contributions to the BSF, as a priority, as well as additional measures to enhance the functioning of the MLS. GB 5 also adopted a resolution on the funding strategy for the BSF and a work programme on sustainable use.

The Working Group met four times during the intersessional period before GB 6 (May 2014, December 2014, June 2015, and October 2015).

GB 6: The sixth session of the GB (October 2015, Rome, Italy) adopted a work programme for the Global Information System and extended the mandate of the Working Group, requesting it to:

• elaborate a full draft revised SMTA;
• elaborate options for adapting coverage of the MLS, based on different scenarios and income projections; and
• consider issues regarding genetic information (now referred to as DSI/GSD) associated with material accessed from the MLS.

The Working Group met three times during the intersessional period before GB 7 (July 2016, March 2017, and September 2017).

GB 7: The seventh session of the GB (October-November 2017, Kigali, Rwanda) extended the mandate of the Working Group on the MLS, requesting it to:

• continue revision of the SMTA;
• develop a proposal for a growth plan to attain the enhanced MLS; and
• elaborate criteria and options for possible adaptation of the coverage of the MLS.

GB 7 further established an Ad Hoc Technical Expert Group on Farmers’ Rights; reconvened the Ad Hoc Advisory Committee on the Funding Strategy and Resource Mobilization; and decided to put DSI on the GB 8 agenda.

Ninth meeting of the Working Group on the MLS: At its ninth meeting (June 2019), the Working Group reached a tentative compromise to amend Annex I to include all PGRFA under the management and control of parties and in the public domain, in ex situ conditions, while allowing for reasoned national exemptions regarding a limited number of native species. The Working Group also agreed on a package of measures, allowing for simultaneous adoption of the revised SMTA and the amendment of Annex I. Negotiations continued on the draft revised SMTA. Consensus was reached on several provisions, with DSI/GSD and rates for benefit-sharing payments remaining as the main outstanding issues, and the meeting was suspended to allow for additional time to finalize negotiations.

However, at the resumed ninth meeting (October 2019), the Working Group was unable to bridge positions between developed and developing countries. Working Group Co-Chairs Hans Hoogeveen (Netherlands) and Javad Mozafari (Iran) issued a compromise proposal on a package of elements, addressing benefit-sharing payment rates, benefit-sharing from DSI/GSD, and the review of the enhanced MLS, but consensus was elusive. Deep principled divergences remained, in particular regarding benefit-sharing payments from the use of DSI/GSD.

GB 8: At its eighth session (November 2019, Rome, Italy), the GB did not reach agreement on the package of measures to enhance the functioning of the MLS, nor on continuing intersessional work.

GB 9: At its ninth session (September 2022, New Delhi, India), the GB reestablished the Working Group on enhancing the functioning of the MLS, in a decision hailed as the main achievement of the meeting, and appointed Sunil Archak (India) and Michael Ryan (Australia) as Working Group Co-Chairs. GB 9 also addressed issues related to cooperation with the CBD, including on DSI/GSD, and finalized a set of options for encouraging, guiding, and promoting the realization of farmers’ rights.

GB 10: At its tenth session (November 2023, Rome), the GB endorsed the suggestion of the Working Group to use the June 2019 draft package as a starting point for further work. It decided to hold four intersessional meetings of the Working Group, to allow for sufficient progress on the negotiations to enhance the MLS, focusing on three identified “hotspots”: DSI/GSD; expansion of the list of crops in Annex I; and payment structure and rates. The meeting also highlighted the need to ensure close collaboration with the CBD and reconvened the Ad Hoc Technical Expert Group on farmers’ rights.

11th meeting of the Working Group on the MLS: At its 11th meeting (April 2024), the Working Group exchanged views and improved understanding of positions on the three “hotspots,” to inform the preparation of a Co-Chairs’ negotiating draft.

Working Group Report

On Monday, 16 September 2024, Working Group Co-Chair Sunil Archak set the expectation for the meeting to turn the Co-Chairs’ proposal for a negotiating text (IT/OWG-EFMLS-12/24/3.1/Rev.1) into a Working Group proposal. Working Group Co-Chair Michael Ryan called on delegates to raise issues and identify gaps in the draft but refrain from entering into text-based negotiations given the volume of text that needed to be addressed. He highlighted the continuity of the process and advised against reopening text agreed ad ref in the June 2019 draft package (IT/OWG-EFMLS-11/24/3, Appendix 2).

Organizational Matters: The Working Group adopted the agenda and timetable (IT/OWG-EFMLS12/24/2.2 Rev.1).

Opening Statements: The LATIN AMERICAN AND CARIBBEAN GROUP (GRULAC) lauded the contribution of the MLS to advancing research and food security, stressing that in contrast, the benefit-sharing pillar has not met its objectives. They underscored the need to focus on payment rates in order to agree on a transparent system that results in predictable and sustainable funding. They also drew attention to the recent adoption of the Treaty on Intellectual Property, Genetic Resources, and Traditional Knowledge under the World Intellectual Property Organization (WIPO), which includes an obligation to disclose the country of origin of genetic resources in patent applications.

NORTH AMERICA called for maintaining the single-access option to be legally consistent with the Treaty. They stressed that access, according to the Treaty, should be free of charge, and that monetary benefit-sharing obligations should be based on sales of products incorporating material accessed from the MLS. They added that a subscription system with upfront payments may deter users, even those not intending to commercialize. Regarding DSI/GSD, they called for coordination with the CBD process to avoid double payments.

The NEAR EAST urged enhanced capacity building for developing countries and increased voluntary support. They emphasized the need for mutual supportiveness between the Treaty and the CBD, and called for enhanced coordination and collaboration between their Secretariats.

ASIA highlighted divergent views in the region with respect to moving forward with a subscription-only approach. They also noted some countries in the region expressed concerns with regard to the full expansion to all PGRFA, notably PGRFA held by Indigenous Peoples and local communities.

AFRICA underscored that DSI/GSD is not only transforming the way genetic resources are used, but also brings into question current approaches to benefit-sharing, and called for a clear framework for DSI/GSD under the subscription system. SOUTHWEST PACIFIC emphasized the need for the text to be clear, provide legal certainty, and be responsive to parties’ needs.

The SEED INDUSTRY cautioned against unrealistic expectations as to payment levels and said the commercial seed sector should not be expected to be the sole source of funding for the BSF. They considered that a subscription-only approach would risk making the MLS a “club of few users,” urging for the payment mechanism to take into account the diversity of users and be proportional to the value of the MLS.

FARMERS’ ORGANIZATIONS said access to PGRFA in in situ conditions is unacceptable without farmers’ consent, emphasizing the risk of seed grabbing. They stressed the need to curtail the risk of PGRFA privatization via intellectual property rights (IPRs) on DSI/GSD.

The CGIAR pointed to their policy brief on DSI/GSD in crop improvement (IT/OWG-EFMLS-12/24/3/Inf.1) and stressed the need to closely monitor the rapid developments on benefit-sharing from DSI under the CBD.

Package of Measures to Enhance the Functioning of the MLS: Proposal by the Co-Chairs

On Monday, Co-Chair Ryan introduced: the draft package of measures proposed by the Co-Chairs (IT/OWG-EFMLS-12/24/3.1/Rev.1), which includes a draft GB resolution, a draft revised SMTA with a series of appendices, and a draft text for an amendment of Annex I of the Treaty; and explanatory notes on the Co-Chairs’ proposal (IT/OWG-EFMLS-12/24/3.2 Rev.1). He invited comments on gaps and areas that need further discussion.

The Working Group then addressed the preamble and sections of the draft resolution on: the revised SMTA; amendment of Annex I; DSI/GSD; and implementation and review of the enhanced MLS.

Draft Resolution: Preamble: On a paragraph recognizing that the MLS does not meet all expectations, GRULAC, opposed by NORTH AMERICA, called for emphasizing that expectations related to fair and equitable benefit-sharing are not being met. EUROPE underlined non-monetary benefit-sharing is already taking place. NEAR EAST noted non-monetary benefit-sharing can assist countries without technological expertise.

Co-Chair Ryan recalled expectations under the process to improve benefit-sharing as well as access.

FARMERS ORGANIZATIONS stressed the need to adapt Treaty provisions on IPRs on MLS material and on access to PGRFA under development (Treaty Article 12.3(d) and (e)) to DSI-related developments.

Revised SMTA: On a paragraph recalling the SMTA should be attractive to both providers and recipients, FARMERS ORGANIZATIONS argued against applying such market-oriented terms with regard to seeds.

Regarding a paragraph on accessing material from the MLS for direct use to enhance food security which excludes commercial purposes, EUROPE, GRULAC, and CGIAR said it should be formulated more clearly. GRULAC suggested adding language that specifies who can access the MLS in this context. NORTH AMERICA cautioned against excluding commercial purposes, with CGIAR explaining that a commercial intermediary organization is often needed to create and scale up virus-free material for use by farmers. 

On the revised SMTA’s implications for farmers’ rights, EUROPE suggested specifying that the SMTA “is not limiting any rights that farmers have, subject to national law.”

With regard to a paragraph recalling Treaty Article 12.3(d), which prohibits claiming IPRs on PGRFA or their genetic parts or components in the form received from the MLS, NEAR EAST and AFRICA called for addressing DSI/GSD. AFRICA, opposed by NORTH AMERICA and EUROPE, suggested recognizing that information/data derived from genetic parts or components of MLS material form part of PGRFA. AFRICA additionally suggested requesting the yet to be established technical advisory committee on the implementation of the enhanced MLS to also address the implementation of Article 12.3(d). In support, CIVIL SOCIETY highlighted that many users do not know what they are allowed to patent. CGIAR noted that clarity on the Article’s interpretation would be helpful to address questions related to open access databases and IPRs on DSI/GSD.

FARMERS ORGANIZATIONS opposed “welcoming” the new WIPO Treaty, expressing regret that it does not recognize farmers’ rights. CIVIL SOCIETY called for urging users who apply for IPRs to disclose the genetic resources they used from the MLS. Co-Chair Ryan noted the idea of the paragraph was to note that the WIPO Treaty recognizes the MLS as a source of genetic resources, which is a recent development.

Regarding limits to genebanks’ ability to respond to large requests covering a broad range of materials, CGIAR pointed to a 2006 statement highlighting constraints such as seed health, balancing different recipients’ requests, and the need to cover multiplication costs. GRULAC, supported by NORTH AMERICA, called for revising the paragraph to account for the fact that national genebanks also face such constraints.

On a paragraph encouraging natural and legal persons who hold PGRFA to include them in the MLS, CIVIL SOCIETY, supported by EUROPE and NORTH AMERICA, suggested language reflecting Treaty Article 11.3 on the same issue.

Co-Chair Ryan suggested the Working Group encourage, as part of its meeting report, the Funding Committee to address the funding criteria before GB 11, as this would help finalize the enhancement process. AFRICA called for further scrutiny of the criteria for allocation of BSF funds proposed in the draft resolution. EUROPE supported inviting the Funding Committee to reflect on whether to revise the criteria in the context of the revision of the funding strategy. NORTH AMERICA considered that listing possible funding criteria is prescriptive, and instead called for clarifying the intended objective of such criteria, which is to provide incentives for parties to ratify the amendment. CIVIL SOCIETY underscored that the Treaty is clear in what the BSF should be used for—to support farmers, especially in developing countries—and that encouraging ratifications would be a misuse of BSF funds. They opposed the proposed criteria, as these would negatively impact countries that have already shared their material as well as farmers in developing countries that lack a strong seed industry.

The NEAR EAST called for reflecting on how to involve the food processing industry in benefit-sharing, as it is one of the main beneficiaries of PGRFA.

FARMERS ORGANIZATIONS opposed qualifying voluntary contributions by the private sector and other sources as “important trust-building measures,” underscoring that such voluntary contributions would not be necessary if the seed sector respected its commitments.

Co-Chair Ryan then invited a discussion on the advantages and challenges of the proposed subscription mechanism.

NORTH AMERICA highlighted that, on top of deterring users to access MLS material, the subscription mechanism could be perceived as a payment for access, which is inconsistent with Treaty Article 12.3(d) that specifies access to PGRFA should be free of charge. Co-Chair Archak suggested the payment due in the subscription mechanism relates to the benefit-sharing obligation, not to access. EUROPE drew attention to a 2016 opinion by the Standing Group on Legal Experts (SGLE) confirming that subscription is compatible with the Treaty. CIVIL SOCIETY said the proposed subscription mechanism covers all elements identified by the SGLE to ensure compatibility with the Treaty, and recalled that the SGLE drew attention to the fact that such “a subscription system could in fact comply more closely with the requirement in the Treaty that there should be no need to track individual accessions.”

Delegates then debated a list of possible exemptions from payments on the basis of: total sales; number of accessions; and accession as a service provider, such as for characterization, regeneration, and multiplication. AFRICA opposed all exemptions, noting they jeopardize predictability of income to the BSF. GRULAC prioritized focusing on payment rates before discussing exemptions. NETHERLANDS and CGIAR called for a system where all seed companies provide monetary payments regardless of their use of the MLS.

NORTH AMERICA considered that only the first proposed exemption, based on a sales threshold, is useful. They noted that an exemption based on the number of accessions could make subscription more attractive but the need for a single-access option remains. Supporting the need for a single-access option, JAPAN highlighted the risk of double payments into multiple benefit-sharing mechanisms under a subscription-only system. FARMERS ORGANIZATIONS noted the issue of double payments is already addressed under the CBD.

NEAR EAST, supported by GRULAC and the REPUBLIC OF KOREA, proposed deleting the exemption based on the number of accessions. CGIAR added that there is a negative correlation between the number of accessions and sales, as bigger companies have higher technical capacity that allows them to better “zero in” on a genetic resource, and proposed specifying that the limit applies for accessions that do not include the trace of commercial value.

NORTH AMERICA suggested that access for services is held under a professional contract rather than an SMTA, so the exemption for service providers is not needed. CGIAR and NETHERLANDS supported retaining the exemption, noting it facilitates cooperation between genebanks and the private sector for such purposes.

Discussions continued on Wednesday. Co-Chair Ryan presented an updated proposal on the subscription mechanism containing a dual trigger for mandatory benefit-sharing payments: an early one upon registration, or a deferred one at the point of commercialization. The proposal was met with broad acceptance as a way forward. AFRICA, supported by NORTH AMERICA, advocated for creating a third tier for users that are exempt from mandatory payments to encourage them to join the MLS “club” by means of voluntary payments.

GRULAC and CIVIL SOCIETY expressed doubts on the attractiveness of an early payment option for businesses compared to the option for delayed payment. GRULAC suggested that payment rates under the deferred payment option should be higher and based on total sales across all PGRFA products in the recipient’s portfolio. FARMERS ORGANIZATIONS added that it is impractical to mandate payments upon commercialization based only on products that incorporate specific genetic resources, recalling the seed industry’s assertion that traceability between access and commercialization is impossible. NEAR EAST stressed the need for a mechanism to keep track of payments.

Co-Chair Ryan invited views on payment structure and rates. AFRICA suggested developing a label that would recognize users that fall below the threshold for mandatory payments but contribute on a voluntary basis, which EUROPE, GRULAC, and NORTH AMERICA supported reflecting upon. EUROPE emphasized the need for predictability of funds, simplicity for both users and providers, and a solution for DSI. GRULAC supported reflecting on ways to leverage support for the MLS, pointing to the growing public attention to biodiversity loss and the economic benefits of investments in DSI-based research. NORTH AMERICA emphasized retaining some elements of the current approach to benefit-sharing under SMTA Articles 6.7, 6.8, and 6.11, including different payment rates depending on whether products are made available with or without restriction for further research and breeding.

DSI/GSD: Co-Chair Ryan highlighted that it is unlikely parties will reach consensus on a definition of DSI/GSD. On a paragraph regarding the importance of maintaining open access to DSI/GSD on PGRFA, AFRICA proposed deleting “open,” with FARMERS ORGANIZATIONS proposing reference to “regulated” or “facilitated” access. PERU stressed the need for taking into account the origin of the genetic resource when facilitating access. FARMERS ORGANIZATIONS called for stressing DSI-related risks, specifically how IPRs on DSI would compromise the objectives of the Treaty.

Several delegates expressed confusion as to the scope of a paragraph affirming that DSI/GSD on PGRFA in the MLS should not be subject to IPRs or other forms of protection that would limit the availability of the PGRFA in question, and called for clarity. FARMERS ORGANIZATIONS emphasized that no IPRs should be claimed on DSI derived from MLS material and that farmers’ rights should not be limited. CIVIL SOCIETY noted that IPRs would not restrict availability per se, but rather the use of PGRFA; and suggested to request disclosure of the source of material accessed through the MLS. ASIA questioned the meaning of “other forms of protection” beyond IPRs.

Regarding DSI-related benefit-sharing payments, there was broad agreement on the need to avoid double payments, with the SEED INDUSTRY suggesting requesting the Secretariat to actively work towards ensuring that benefit-sharing payments done in the context of the MLS are recognized in other fora.

On a paragraph agreeing that benefit-sharing payments under the revised SMTA take into account the use of DSI/GSD, CIVIL SOCIETY, supported by EUROPE and FARMERS ORGANIZATIONS, called for specifying the paragraph only relates to the subscription system, not the single-access option. FARMERS ORGANIZATIONS emphasized that the lack of transparency on the potential use and origin of DSI/GSD can be accommodated under the subscription system, but not under the single-access option. The SEED INDUSTRY said it is premature to assume that only the subscription system can account for DSI. NORTH AMERICA objected to the paragraph distinguishing between the subscription system and single access.

On a paragraph “urging” parties that hold DSI/GSD to make such information publicly accessible by linking them to the Treaty’s Global Information System (GLIS), NORTH AMERICA and ASIA, opposed by GRULAC, proposed to “encourage” parties and cautioned against mentioning the GLIS specifically. NORTH AMERICA raised concerns about the technical challenges in making such data available. CGIAR noted the SMTA already obliges recipients to share information through the GLIS. FARMERS ORGANIZATIONS stressed that many intellectual property organizations consider DSI/GSD confidential data, and highlighted the need to link DSI/GSD with the genetic resource at the source.

On a paragraph inviting database owners to offer users a possibility to tag a dataset to identify the MLS as the source of the genetic resource, NORTH AMERICA proposed to instead identify the genebank or whether an SMTA was used. CIVIL SOCIETY, supported by NORTH AMERICA and EUROPE, proposed inviting database owners to request users to identify the source of the genetic resource when accessed using an SMTA.

Many urged the CBD and Treaty Secretariats to coordinate to avoid double payments. CIVIL SOCIETY highlighted that currently “there are no payments” and urged avoiding gaps in benefit-sharing mechanisms.

Amendment of Annex I: On Tuesday, the Working Group addressed the draft resolution’s section on the amendment of Annex I. AFRICA, with NEAR EAST, preferred developing a positive list of PGRFA in the MLS, with reference to the study on the Plants that Feed the World. Co-Chair Ryan noted that the Co-Chairs’ proposal reflects the compromise in the June 2019 package, which expands the scope of the MLS to all PGRFA while allowing parties to exempt a limited number of species. Pointing to limited time left before GB 11, he urged parties not to revisit this compromise.

FARMERS ORGANIZATIONS pointed to emerging food and agriculture uses of species not traditionally used for such purposes. ASIA noted that technological developments can reveal qualities of a species currently unknown. NEAR EAST called for criteria to define exemptions.

Discussion on the section continued on Wednesday. Co-Chair Ryan recalled the text on an amendment of Annex I towards an expansion to all PGRFA in the draft resolution currently contains three safeguards: the Treaty’s recognition of the sovereign rights of states over their PGRFA; the specification that it relates to PGRFA that are under the management and control of parties, in the public domain, and in ex situ conditions; and the possibility for parties to exempt a list of species native to their territory. Responding to the NEAR EAST, Co-Chair Ryan clarified that, as currently drafted, exemption lists would be defined at the country level and an exemption declared by one country would not prevent other countries that have the material to share it.

AFRICA and NEAR EAST considered it would be more difficult for decision makers to ratify an amendment towards expansion to all PGRFA compared to an expanded but specific list. AFRICA also noted that an expansion towards all PGRFA would risk fueling rivalries between agriculture ministries, typically responsible for the Treaty, and environment ministries, typically responsible for the CBD.

Pointing to biotechnological advances, AFRICA further questioned where exactly the line for “all PGRFA” would be drawn. Acknowledging challenges related to the possible transfer of traits across species, NORTH AMERICA agreed that there are grey areas, including wild food plants. They suggested that the committee entrusted with providing advice on the implementation of the enhanced MLS could help interpret the meaning of “all PGRFA.” NEAR EAST noted that clarity on the meaning of “all PGRFA” would help define exemption lists.

GRULAC expressed concern over a paragraph by which the BSF should not support projects related to species excluded by parties. They further called for deleting another paragraph in the resolution that encourages parties to provide access according to the terms and conditions of the MLS to PGRFA found in in situ conditions, with FARMERS ORGANIZATIONS calling for upholding farmers’ rights and curtailing the risk of seed grabbing.

GRULAC also expressed concerns over the idea that exemption lists would only relate to species native to parties’ territory, pointing to the issue of landraces and farmer varieties. NORTH AMERICA cautioned that allowing the exclusion of landraces may lead to excluding material that is already covered in Annex I.

FARMERS ORGANIZATIONS underscored that many seeds of unknown origin held by genebanks were collected without farmers’ permission and lamented the continued disregard for farmers’ rights and lack of a compliance mechanism.

EUROPE, supported by NORTH AMERICA, stressed the importance of future-proofing the MLS by providing certainty on what will be available in the system. They argued that the draft amendment already specifies “all PGRFA” as “all PGRFA that are under the management and control of the parties and in the public domain and that are found in ex situ conditions.” CIVIL SOCIETY urged referring to ex situ “collections” instead of “conditions,” to align with Treaty language. FARMERS ORGANIZATIONS argued exemption lists that cannot be expanded fail to protect Indigenous Peoples from the future commercialization of wild species that are essential to their livelihoods.

Co-Chair Ryan suggested further intersessional work is required on the safeguards needed to build trust and alleviate concerns of provider countries, and on how to navigate the division of responsibilities between the CBD and the Treaty at the national level.

Regarding a paragraph agreed ad ref in the June 2019 draft package requesting parties to “state clear reasons” for any exclusions they declare, GRULAC considered it problematic to request parties to justify choices done in accordance with their sovereign rights over their resources and called for deleting the paragraph. Parties debated the appropriateness of reopening discussion on paragraphs agreed ad ref. The NEAR EAST and JAPAN emphasized the need to avoid long lists of exemptions, with the REPUBLIC OF KOREA noting that providing a rationale for exemptions enhances trust. NORTH AMERICA and EUROPE underscored the language aims to enhance mutual understanding of the rationale for excluding certain species, without limiting it to specific criteria. GRULAC, supported by AFRICA, suggested “inviting” rather than “requesting” parties to provide such information. Parties agreed the wording of the paragraph needs further work, and to reflect the wording of the amendment that is yet to be agreed upon.

GRULAC, supported by AFRICA, CIVIL SOCIETY, CGIAR, and FARMERS ORGANIZATIONS, and opposed by NORTH AMERICA, requested deleting a paragraph encouraging parties to provide access to PGRFA found in in situ conditions, subject to national legislation, with FARMERS ORGANIZATIONS stressing respect for farmers’ rights.

On a paragraph requesting the Secretary to provide a list of PGRFA made available under the amended Annex I in its regular reports to the GB, GRULAC, opposed by EUROPE, suggested this list should contain information on origin and commercialization to improve transparency.

CIVIL SOCIETY, supported by EUROPE, AFRICA, GRULAC, and NEAR EAST, proposed language on ensuring the SMTA is used in both domestic and international transfers. The US and the REPUBLIC OF KOREA opposed, suggesting this would undermine national sovereignty.

NORTH AMERICA and EUROPE emphasized the need to clarify, in the amendment of Annex I, that the food crops and forages currently listed in Annex I remain included in the expanded MLS. EUROPE also called for clarifying that national exemptions cannot be declared for species contained in the original version of Annex I.

Implementation and Review of the Enhanced MLS: On Wednesday, the Working Group addressed paragraphs on a review of the enhanced MLS, scheduled for 2031, which would assess the status of ratifications of the amended Annex I, the level of user-based income to the BSF, and the availability of MLS material. Failing to reach the number of ratifications required for the amended Annex to enter into force would result in reverting to the current system.

Delegates debated whether to “agree” or “decide” to consider reverting to the current SMTA, should the required number of ratifications for entry into force of the amended Annex not be reached.

AFRICA suggested urging parties to work towards an enhanced MLS, guaranteeing there is no need to revert to the current system. CIVIL SOCIETY, with AFRICA, called for assessing not only the aggregate income but also the list of subscribers and amounts paid by individual subscribers. Co-Chair Ryan pointed to possible confidentiality-related constraints.

EUROPE noted the review process was envisioned as a safeguard for subscribers, should the amendment not enter into force. NORTH AMERICA added that it is an incentive for countries to swiftly ratify the amendment.  

Draft Revised SMTA text: On Wednesday, the Working Group initiated a reading of the draft revised SMTA in the Co-Chairs’ proposal. 

EUROPE, the REPUBLIC OF KOREA, and CIVIL SOCIETY noted a newly introduced definition of “trait of commercial value” contains vague elements. ARGENTINA called for linking it to food and agriculture purposes.

CIVIL SOCIETY, with AFRICA, called for specifying the definition of “PGRFA” with elements from Treaty Article 12.3(a), which includes a link to food security and provides that access is provided solely for the purpose of utilization and conservation for research, breeding, and training for food and agriculture, and does not include chemical, pharmaceutical, and/or other non-food/feed industrial uses. EUROPE noted the PGRFA definition is already included in the Treaty.

On the definition of “commercialization,” NEAR EAST proposed including the products of the food processing industry. ARGENTINA cautioned against implying that seed exchanges between communities may be included.

GRULAC called for a definition of “commodity.” The SEED INDUSTRY and EUROPE suggested defining “affiliate.”

FARMERS ORGANIZATIONS called for a definition of DSI or of genetic component, including DSI. NEAR EAST suggested adding reference to DSI in the definition of genetic material. Expressing concern that the process “is moving backwards,” Co-Chair Ryan highlighted the draft addresses DSI in the resolution rather than the revised SMTA, as a pragmatic approach; and requested that parties suggest additional terms or clarifications but refrain from revisiting already agreed definitions.

On a paragraph regarding allowed uses of MLS material by the recipient, CGIAR, supported by EUROPE and SOUTHWEST PACIFIC, proposed language that would allow the direct use of the material in production for food and agriculture, with CANADA drawing attention to the issue of multipurpose crops.

EUROPE and ARGENTINA expressed the need to set clear timeframes regarding registration to the subscription mechanism.

On an article addressing the transitional phase until ratification of the amendment of Annex I, CIVIL SOCIETY, supported by AFRICA, drew attention to the imbalance between the fact that there are provisions for reverting to the current system, in case the required ratifications for the amended Annex to enter into force by 2031, but not in case the objective of enhanced benefit-sharing is not met.

On exemptions from subscription payments, NEAR EAST, EUROPE, ARGENTINA, and CIVIL SOCIETY highlighted there is broad consensus that only a threshold on sales is required.

Developments in Other Relevant Fora

On Tuesday, Daniel Hougendobler and Olla Shideed, World Health Organization (WHO) Secretariat, presented on the state of negotiations for a pathogen-specific ABS (PABS) system in the context of an agreement on pandemic prevention, preparedness, and response, expected to be adopted, at the latest, at the 78th World Health Assembly in 2025. They highlighted that there is convergence regarding the coverage of DSI/GSD and the need for balance between access and benefit-sharing. They emphasized that a follow-up process will define the PABS system’s terms and modalities, including: triggers for the benefit-sharing mechanism; types of monetary and non-monetary benefits; capacity building, technology transfer, and diversified production; and governance. They also noted it remains to be decided whether the PABS system will be operationalized by a protocol under the current pandemic agreement, thus with parties opting in, or a separate instrument, thus with an opt-out approach.

A question and answer session addressed:

• whether a definition of DSI/GSD is needed for it to be referenced in a legally-binding instrument;
• potential recognition of the PABS system as a specialized international ABS instrument under the Nagoya Protocol; and
• the mechanism that determines when and which benefit-sharing obligations are triggered during a public health or pandemic emergency.

Kathryn Garforth, CBD Secretariat, provided an overview of recent developments under the CBD. She highlighted that the Working Group on benefit-sharing from DSI use prepared a draft decision on modalities for operationalizing the multilateral benefit-sharing mechanism that was established at the CBD’s fifteenth meeting of the Conference of the Parties (COP 15), and that negotiations will continue at COP 16 in October 2024. With regard to the fund of the benefit-sharing mechanism, she drew attention to deliberations under the advisory committee on resource mobilization on which entity could be entrusted with disbursement of funds. She said the CBD Secretariat will hold three webinars on: commercial uses of DSI; the possible host of the fund; and the allocation of funds. Responding to questions, she noted:

• there are different views about the nature of the commitment to share benefits from the use of DSI, with disagreement over whether parties “shall,” “should,” or “will” share benefits;
• farmer communities could be considered beneficiaries under the CBD mechanism;
• there are different options for disbursement modalities, including direct allocation to countries or through a project-based approach, which could be country- or community-driven; and
• options for the host of the fund include the Global Environment Facility, the new Global Biodiversity Framework Fund, or a separate entity.

She highlighted that four possible approaches for monetary benefit-sharing are currently being discussed, including:

• DSI users contributing a percentage of the profits generated by commercialized products;
• a sector-based approach where companies in sectors identified as highly dependent on DSI contribute a percentage of their profits or revenue;
• a contribution of 1% of the retail value of all products that depend on DSI; and
• an encouragement to active DSI users to contribute a portion of their revenue or profit to the DSI fund.

She noted broad support for the sector-based approach, adding that, regardless of the approach that will ultimately be adopted, implementation will require national measures.

Presentations

On Monday, Jonathan Shoham, S&P Global, presented updated insights on seed company sales and profitability. He underlined that since the previous report was published in 2019, the size of the commercial seed market has increased from USD 44 billion to 53 billion, with half of it comprised by sales of genetically modified (GM) seeds—which is notable considering GM seeds are only used in 30 countries. He pointed to market stabilization after massive industry consolidation in previous years, with bigger companies expanding their market share and profitability, hinting that further major acquisitions are improbable since they would trigger antitrust regulations.

In terms of crops, he stressed corn and soybean dominate the market with more than half of global seed sales. The full S&P report on the matter is estimated to be published by the end of 2024.

A question and answer session focused on:

• the importance of estimating the value of non-commercial seed exchanges, especially to account to farmers’ contribution;
• the need to evaluate the MLS’ contribution to the market to inform discussions regarding benefit-sharing; and
• regional differences regarding the size of commercial and non-commercial seed sectors.

On Tuesday, Isabel López Noriega and Mathieu Rouard, CGIAR, presented the policy brief on generation, use, and sharing of DSI in crop improvement (IT/OWG-EFMLS-12/24/3/Inf.1). 

López Noriega highlighted that DSI is not a final product but a research and breeding tool, linked to physical PGRFA. She noted the comparison of sequences serves to identify interesting traits, and that DSI use enables an acceleration of plant breeding. She said that benefit-sharing should reflect the value creation enabled through all the PGRFA used to create the knowledge and tools used for breeding, and added that track and trace systems do not reflect this.

Rouard presented the DSI database ecosystem, including 3,000 public databases, the International Nucleotide Sequence Data Collaboration, and many crop-specific portals. He suggested strengthening geographic representation and DSI-related requirements in the existing system.

In the ensuing discussion, the Working Group discussed, among other issues:

• use of terms, and the need or not for a definition of DSI;
• the extent of DSI use and continued needs for access to physical material; and
• the need to study how IPRs on DSI impact the availability of MLS material.

Future Work

On Thursday, Co-Chair Ryan outlined the Co-Chairs’ proposal on the way forward (IT/OWG-EFMLS-12/24/5). He highlighted a need for guidance on multi-use crops and understanding and implementing Treaty Article 12.3(d) on IPRs. On the date and location of the 13th Working Group meeting, he said that the initial scheduling for March 2025 in Rome, back-to-back with the meeting of the Commission on Genetic Resources for Food and Agriculture (CGRFA), is difficult to maintain due to logistical constraints related to a major religious event taking place in Rome in 2025.

He summarized future steps, which include:

• a small drafting group on direct use, with likely three members;
• a drafting group on the new subscription mechanism including a dual payment trigger, with one member per region;
• an informal meeting, from 13-15 December, likely in Rome, to discuss issues related to DSI/GSD, such as mutual supportiveness with the CBD, how commercialization-related payment would accommodate DSI/GSD, and payment rates, with participation by stakeholders;
• regional consultations to discuss issues related to the amendment of Annex I, including possible national exemptions; and
• seed industry consultations on payment rates and willingness to subscribe to the enhanced MLS ahead of the next Working Group session.

Co-Chair Ryan highlighted that these elements would inform the preparation of an updated Co-Chairs’ proposal ahead of the 13th meeting of the Working Group, and indicated that written submissions would rather be sought after the 13th meeting.

Responding to questions, Co-Chair Archak recalled that the Co-Chairs welcomed the CGIAR’s presentation on DSI/GSD and encouraged it to continue work on IPRs vis-à-vis DSI/GSD, as well as the potential impact on the availability of MLS material.

EUROPE called for clarifying operational details of the subscription system, including what happens to the MLS material after the end of subscription.

Informal Exchange

On Thursday morning, delegates shared views on the process during an informal discussion. Participants called for strengthened collaboration and willingness to compromise, given the limited time left. Discussion addressed:

• the importance of not reopening text agreed ad ref in the 2019 package;
• the existence of opposing views on DSI and on the expansion of the Annex;
• the need to respect the Treaty’s objectives;
• recognition of the linkages between enhanced benefit-sharing and expansion of the Annex;
• progress towards a single subscription mechanism with two alternative benefit-sharing triggers;
• the need to build trust and to design a system that is attractive for both users and providers; and
• collaboration with other ITPGRFA committees, including on the funding strategy and compliance.

Closing Plenary

On Thursday afternoon, Co-Chair Ryan invited comments on the draft report from WG 12 (IT/OWG-EFMLS-12/24/Draft Report).

NORTH AMERICA preferred stating that the Working Group considered again that the subscription mechanism may “meet the expectation for” rather than “provide for a solution to” monetary benefit-sharing from the use of DSI/GSD.

Delegates emphasized the need for consistent terminology and agreed to refer to the “subscription mechanism” and its “dual payment option,” which are the “early” and the “deferred” payment options.

In terms of the criteria and factors that the development of the subscription mechanism should take into account, NORTH AMERICA noted that the notion of “mandatory payments only” is out of place in the list of criteria. Delegates agreed to remove it from the list and instead state that points were made about the need to maintain a mandatory payment basis through the subscription mechanism consistent with earlier decisions of the Working Group. Upon a suggestion by EUROPE, delegates also agreed to specify what each criterion relates to, namely: predictability of income, simplicity of the system for users and providers, and attractiveness for the broadest range of potential users. They also added legal clarity as another criterion.

Other amendments included:

• adding a reference to making early payment the most attractive option, as suggested by EUROPE;
• replacing the reference to “how to encourage availability of material without restriction” with “maintaining the benefit of Articles 6.7, Article 6.8, and Article 6.11, including for how to encourage the availability of Products without restriction,” as suggested by NORTH AMERICA; and
• adding a reference to exemptions from payment obligations, as suggested by ASIA.

On a paragraph recognizing the potential value of direct use of materials for food and agriculture, the Working Group accepted the suggestions from GRULAC to reference Treaty Article 12.3(a) that specifies purposes for accessing the MLS, with NORTH AMERICA adding reference to “subject to national law and as appropriate.”

On the amendment of Annex I and the inclusion of safeguards with emphasis on sovereign rights of parties, the Working Group added language that recognizes the importance of maintaining a balance between expanding the Annex and income generation.

On a paragraph aiming for mutual supportiveness with the multilateral benefit-sharing mechanism from DSI use developed under the CBD, EUROPE suggested inviting parties to play a constructive role in raising awareness on the importance of the Treaty’s MLS by engaging with delegations in relevant ongoing processes.

With regard to developments in other fora, EUROPE suggested, and delegates agreed, to specify that the Working Group also took note of the background study on the role of DSI in the conservation and sustainable use of genetic resources for food and agriculture prepared by the CGRFA.

Delegates also agreed to state that the Co-Chairs welcomed the CGIAR’s presentation and encouraged the CGIAR to continue working on DSI issues, particularly on IPRs and DSI-database links to MLS resources.

In terms of future work, delegates agreed to the SEED INDUSTRY’s suggestion to request the Co-Chairs to liaise with the seed sector to provide early indication of companies’ “interest,” rather than “willingness,” to become subscribers based on a dual payment mechanism and on parameters related to rates.

The Working Group then addressed the report’s appendix, which contains the Co-Chairs’ proposal accompanied by boxes listing elements for the Co-Chairs to consider in updating their proposal. 

On a section on DSI/GSD, EUROPE suggested language acknowledging the importance of sharing data, including DSI, and keeping in mind Article 12.3(d) of the Treaty when revisiting text on IPRs.

On implementation, NORTH AMERICA proposed highlighting the need to maintain a balance between progress towards entry into force of the amendment and income generation.

The Working Group then adopted the meeting report as amended.

Regional representatives expressed their commitment to the process and appreciation for progress achieved. The Co-Chairs expressed their appreciation to participants, Secretariat, staff, and the Earth Negotiations Bulletin for their commitment to the process.

Following a group photo, the meeting closed at 6:50 pm.

A Brief Analysis of the Meeting

 Crop diversity is paramount for sustainable agriculture and food security, increasing resilience to the impacts of climate change, pests, and diseases. The International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) was conceived to support the development and maintenance of diverse farming systems and strengthen research that conserves and enhances crop diversity. Its Multilateral System (MLS) facilitates access to a list of crops considered vital for food security (Annex I of the Treaty) and promotes the fair and equitable sharing of the benefits arising from the use of plant genetic resources for food and agriculture (PGRFA).

The benefit-sharing component of the MLS, however, did not live up to expectations: almost no monetary contributions from users accessing PGRFA in the MLS is flowing into the Treaty’s Benefit-sharing Fund (BSF). Effectively, projects on PGRFA conservation and sustainable use in developing countries were funded through voluntary contributions. In 2013, parties initiated a process to rectify this, with the aim to increase user-based payments and contributions to the BSF. Expansion of the list of crops covered by the MLS was soon integrated into the deliberations, based on the argument that inclusion of crops attracting commercial interest will generate more benefits to be shared.

After taking a long and winding road, the process came close to a compromise in 2019, before collapsing some months later over disagreements on benefit-sharing payment rates and digital sequence information (DSI). The process didn’t restart until 2022. In the meantime, the broader landscape related to access and benefit-sharing (ABS) evolved considerably. In light of the of the rapidly approaching deadline, set for the upcoming eleventh session of the Governing Body (GB 11) in November 2025, this brief analysis will assess the status of the negotiations in the context of the broader policy landscape, including what the Working Group achieved at its 12th meeting and what remains to be done before GB 11.

Treading the Wider Policy Landscape

The ABS landscape has transformed over the past few years, with various multilateral ABS mechanisms currently under development. In June 2023, UN Member States adopted a landmark treaty to ensure the conservation and sustainable use of marine biodiversity of areas beyond national jurisdiction and established an associated ABS mechanism. In the context of the negotiations towards a new treaty on pandemics under the World Health Organization (WHO), countries are also considering the establishment of a pathogen-specific ABS mechanism.

Yet, the process with the strongest possible implications for the Working Group’s deliberations is the one established under the Convention on Biological Diversity (CBD). In 2022, CBD parties established a multilateral benefit-sharing mechanism from the use of DSI on genetic resources, and are now working towards its operationalization. In the CBD negotiations, broad support for a sector-based approach to benefit-sharing has emerged: this would imply seeking monetary benefit-sharing contributions from all companies in sectors relying on DSI use, including agriculture, pharmaceuticals, and cosmetics. While several operational aspects are still to be addressed, a decision could be reached in October 2024 at the CBD’s sixteenth meeting of the Conference of the Parties (COP 16).

While the Working Group acknowledged the need to address benefit-sharing from DSI, the relevance of such discussions under the Treaty hangs in the balance: the CBD process is progressing fast, and a potential decision in October may preempt developments, given the CBD’s broader scope and membership. During the meeting, many stressed the need to ensure compatibility among the two benefit-sharing mechanisms when it comes to DSI use. Some suggested working towards a sector-based approach, which seems in reach under the CBD. Others focused on avoiding the risk of double payments. Civil society representatives, on the other hand, cautioned against fixating on the distant issue of double payments before finally addressing the very real and current issue that there are “no payments whatsoever.” All participants recognized the need for coordination with the CBD: the Working Group will be monitoring progress and an informal meeting set for December 2024 is tasked with discussing CBD COP 16 decisions. Amid calls for close coordination between the Secretariats, parties were also reminded that it is their responsibility to coordinate national positions across multilateral processes.

Moving Forward

During its four-day meeting, the Working Group discussed a draft resolution, a draft revised Standard Material Transfer Agreement (SMTA), and a draft text for an amendment of Annex I, proposed by Working Group Co-Chairs Michael Ryan (Australia) and Sunil Archak (India). Delegates went through the draft texts, suggesting changes and additions, and delineating their reservations. They spent significant time discussing a long-standing impasse regarding the payment structure for benefit-sharing. Historically, parties have been divided between creating a subscription-only system of payment upon registration, and maintaining a single-access option along the lines of the benefit-sharing payments under the current SMTA. This division is in large part grounded in what parties consider to be the main priority of the enhancement process: increasing the level and predictability of monetary flows, or increasing the attractiveness of the system for a broader range of users.

As a way forward, the Co-Chairs submitted a proposal mid-way through the meeting for a single subscription mechanism with two alternative triggers for mandatory monetary benefit-sharing: an early payment upon registration or a deferred payment upon commercialization of a product incorporating material from the MLS. While several issues remain to be addressed, particularly regarding payment rates, the proposal received broad support as a promising way to bridge differences. Aiming to alleviate the concerns of the proponents of the single-access option, hopefully without hurting the predictability of income, the proposal was hailed as a procedural breakthrough to pave the way towards conclusion of the negotiations.

Closing the Gaps

While the Co-Chairs’ proposal for a dual subscription mechanism seems to have broken a long-lasting impasse, several crucial modalities still need to be ironed out. From the beginning of the enhancement process, it was clear that the MLS has to serve the needs both of provider countries and of a wide set of users, including large and small corporations, such as large agrochemical conglomerates and small plant breeding companies, but also public research institutions, Indigenous Peoples, and smallholder farmers. The meeting showcased strong agreement on the need to differentiate payment rates between large enterprises and other users. This would be achieved by specifying a threshold on the total sales of the recipient of MLS material, under which no payments shall be required. What that threshold will be, however, remains to be decided. Representatives of African and Latin American countries also suggested leveraging the increased public attention on biodiversity and reflect on ways to encourage voluntary contributions from users exempted from payments.

Discussions on specific payment rates have yet to start. As the commercialization of new plant varieties based on breeding takes years, there is agreement on the need to ensure the attractiveness of the early payment option through preferential rates. Otherwise, it would take years for monetary benefit-sharing flows to materialize.

Questions also persist on the expansion of Annex I. Back in June 2019, consensus was reached to expand coverage under the MLS to “all PGRFA,” with a possibility for parties to declare exemptions at the national level. But since the overall agreement was not adopted at the time, and circumstances changed in the interim, some parties once again expressed a preference for making additions to the current list of PGRFA in Annex I. Representatives from Africa and the Near East cautioned that decision makers would be more reluctant to ratify the amendment to Annex I if it foresees a blanket rather than a specific expansion. There is also uncertainty around the definition of “all PGRFA,” especially as some species are used for food and agriculture purposes in some cultures but not in others, and as technological advances allow breeding across increasingly distant species. Intersessional work is planned to address concerns around these issues.

Sealing the Deal

Given the long history of this process, it has often been difficult to maintain momentum, especially given the slow pace of negotiations. Text-based negotiations, initially planned to start during this session, have been postponed until the next meeting of the Working Group. It has already proven difficult to strike a balance between avoiding to re-open previously agreed text while adapting to changing circumstances. This may be more challenging going forward since the next meeting will take place after CBD COP 16 and a possible agreement on benefit-sharing from DSI use. On the other hand, the rapidly advancing discussions on ABS in other fora have created a sense of urgency.

Delegates left WG 12 on a positive note and a shared resolve to make progress intersessionally. With only two sessions of the Working Group remaining until the GB 11 deadline in November 2025, difficult technical work, regional consultations in the light of the overall Treaty objectives, and a spirit of collaboration and compromise are needed more than never.