Download Chinese Contract Law: A Brief Introduction

Legal Barriers of Technology Transfer in
Addressing Climate Change from the
Perspective of Suppliers
Zhou Chen
3 Nov. 2009
Wuhan Colloquium of IUCN
Starting point
 Realistic importance:
Post-Kyoto agreement negotiations
Obama administration
 Theoretic importance:
Technology potential
Environmental effectiveness
Key concepts
 Technology transfer: a broad set of processes covering the flows
of know-how, experience and equipment for mitigating and adapting to
climate change amongst different stakeholders such as governments,
private sector entities, financial institutions, NGOs and research
education institutions. (IPCC Report, 2001)
 Legal barriers: human factors. (Public policy theory,2007)
 Technology suppliers: (Stephen Sere, 2008)
Research background Ⅰ
Legal basis:
environmental and developmental policies
 Agenda 21, Ch.34
 The UNFCCC , Article 4 and Article 5
 The Kyoto Protocol, Article 10 and Article 11
Traditional market mechanism:
commercialized transfer
Innovative and favorable transaction:
global environmental governance & international equity
Research background Ⅱ
Limited performance:
 Improper location where TT could be best employed to
mitigate and adapt to climate change
 Inadequate effectiveness and potential uncertainty usually
operating as additional barriers
technology spillover
potential barriers
need further exploited but undermined
Research question and methodologies
what are the instrumental barriers; where are they
emerging from in present legislations and practices; how
do they manifest themselves in the supplying of climate
related technology and to what extent do they impact this
process negatively?
 normative analysis
 exploratory inquiry
 descriptive research
Theoretical analysis
 Market mechanism
radical demand: geographical imbalance of technology resources
economic feasibilities: supply vs. demand; cost vs. benefits
 Market failure
public goods characteristics and environmental problem externality
 Government failure
no virtual global governance by a supranational government
Paradox---- public environmental value & private
economical value within the one regime.
Legal barriers----Public sector
International law:
vague and soft commitments of governments to supply their
climate related technology
 Common but differentiated environmental responsibilities: a concrete
form (the UNFCCC Article 4)
 Solidarity assistance: the capabilities and conditions of developing
countries to fulfill commitments (IPCC Report 2007)
Political will→ political compromise
why?
Why: the lack of substantial and procedural
stringency
 linguistic point:
‘shall’ and ‘should’ in wording of articles
optional, advisory ≠compulsory, supervisory
Strong sense of morality but legally binding basis
robust
system
consequences of
non-compliance
 non-compliance procedures point:
multiple consultative process
non-judicial and non-confrontational＝ even softer
dispute settlement procedures under the WTO
punishment
enforcement
Why: not cost-effective
Intellectual property rights :
IPRs →over high cost→ contradictory to Climate change agreements
stimulate innovation reconciled with public health, otherwise it will
constitute the abuse of private rights
TRIPs agreement:
 Protection standard: rather rigorous protectionism (Sha Zukang 2007)
 Flexibilities and exceptions: limited and being challenged
the increasing number and scope of patent claims in wind energy and
bio-fuel technologies (European Patent Office, 2007)
“corresponding adjustments” to intellectual property (European
Parliament 2007/2003(INI ))
Legal barriers----Public sector
National law: enabling legal environment
inappropriate litigations
 technology policies: tight control, (Stephen Castle, 2007)
 macroeconomic legislations:
no open, transparent trading and financing system (IPCC Report 2001)
1.
2.
3.
4.
unaffordable technology prices
inconsistent funding resources
cumbersome negotiating procedures
unavailable information discourse
Legal barriers----public sector
National law: enabling legal environment
take active actions
to trigger and pilot domestic clean technology supply
 Official Development Assistance:
overall decline both in absolute terms and as a percentage (IPCC 2007)
 Research &Development:
substantial decrease in developed countries (Javier de Cendra, 2009)
Why? they are costly
Why not?
environment effectiveness; distributional consideration; instrumental
feasibility
Give more weights (IPCC Report 2007)
Legal barriers----Private sector
Increasing importance
 Climate change is here to stay and will have a transformative effect
on all types of business.
 Several hundred companies are now involved in the manufacture of
wind turbines, photovoltaic systems and component devices
How ↗trade in international technology market
↘foreign direct investment in developing countries
good faith and cooperate behaviors
Legal barriers----Private sector
Restrictive Business Practices
 Why: Profit maximization ﹢the umbrella of free competition
 Case: Korean companies importing foreign technology, 23.3% of
523 technologies introduced in 1994 was accompanied by restrictive
conditions, In some cases, even public institutes of developed countries
refuse to license technologies like HFC-134a, fuel cell
 Impacts: “supplier market” of clean technology
break trade liberalization: blocks
undermine sustainable development: high cost without due benefits
Legal barriers----Private sector
Corporation Social-Environmental Responsibilities
 EU defines, ‘Corporation social responsibility is companies acting voluntarily
and beyond the law to achieve social and environmental objectives during the
course of their daily business activities.’
 How: incorporates environmental accounts into commercial interests
1) adopt precaution measures;
2) take active actions to bear more responsibilities;
3) promote innovation and transfer of clean technology
 International efforts:
Industries standards (4 documents)
MEAs (no substantial requirements)
limited contributions call for the subsequent evolutions in a demonstrable progress
ConclusionⅠ
 Technology transfer considered as “effective”
political, legislative and institutional criteria
→ the adaption of law
 Remove barriers and facilitate process
Bali Action Plan 2007 and UNFCCC at COP-15 in Copenhagen
 Increase the flow; Improve the quality
ConclusionⅡ
 The lack of an explicit legal basis for binding
commitments concerning the transfer of technology
 Technology transfer is conditional on existing
international legal system and its potential negative
implications
 Inappropriate litigations and Insufficiency of substantial
assistance at the level of national instruments
 Restrictive business practices and the absence of a
consciousness of their social-environmental responsibilities
in private sectors
Thank you for your attention!
[email protected]
Tilburg University