Mavic
John Ray
Andre
Tracy
Aurok respectfully requests that the Court adjudge and declare: I.
Rakkab is responsible for the internationally wrongful acts acts described in subparagraphs (b)-(d), infra, because DORTA’s actions are attributable to Rakkab, Rakkab, or in the alternative, Rakkab is responsible for its own failure to prevent DORTA from committing those wrongful acts;
Laws: Laws: Local legislation and government-enforced monopoly on the sale of prescription medication within Rakkab and the Rakkabi governme nt subsidizes DORTA’s research and development development activities inside and outside Rakkab. Party it favored: AUROK favored: AUROK Why? How?: Rakkab, How?: Rakkab, being the main regulator of DORTA and having sovereignty over the presence of DORTA in its territory should be responsible for its own failure to prevent DORTA from committing wrongful acts against Aurok. It is not unknown to this Court that DORTA evolved from a government funded research group and as of the present date, the Rakkabi government holds approximately 12% of DORTA’s stock. Rakkab is liability in the wrongful acts committed by DORTA is undeniable given the fact that Rakkab is also a shareholder of DORTA.
II.
The harvesting of the Yak in Rakkab violates Rakkab’s Rakkab’s international obligations relating to the protection of endangered species and the environment, including those under relevant conventions, and Rakkab is obligated to end Yak harvesting on its territory;
Laws: Convention Laws: Convention of the Conservation of Migratory Species of Wild Animals (CMS) Article III, paragraph 4 b), and c) states that: 4. Parties that are Range States of a migratory species listed in Appendix I shall endeavour: endeavour: b) to prevent, remove, compensate for or minimize, as appropria appropriate, te, the adverse eff ects of activities or obstacles that seriously impede or prevent the migration of the species; and c) to the extent feasible and appropriate, appropriate, to prevent, reduce or control factors that are endangering or are likely to further endanger the species, including strictly controlling the introduction of, or controlling or eliminating, already introduced introduced exotic species. Party it favored: AUROK favored: AUROK Why? How?: Rakkab state has the responsibility to adhere to the stipulations of the Convention of the Conservation of Migratory Species of Wild Animals. The enlistment of Kayleff Yak in the Appendix I of the CMS recognizes the fact that the population of Kayleff Yak has been decreasing to the point of being endangered.
Laws: Sec 5, Article III of the Convention on Migratory Species enumerated 4 exceptions to the prohibition of taking animals included in the appendix of the said convention. a) the taking is for scientific purposes; b) the taking is for the purpose of enhancing the propagation or survival of the aff ected species; c) the taking is to accommodate the needs of traditional subsistence users of such species; or d) extraordinary circumstances so require; provided that such exceptions are precise as to content and limi ted in space and time. Such taking should not operate to the disadvantage of the species. Party it favored: RAKKAB Why? How?: For Scientific Purposes The selling of the drug Gallvectra is the primary function of the taking of the Yak. However, it does not limit the capability of the manufacturer of the drug. Since it is proven that the gallblader of the Yak, as one part of its entire body, was able to treat insulin-resistance related disease, it might be also susceptible to any possible invention of any drug remedy in treating diseases as to the other parts of the Yak. Enhancement of Survival The taking is to observe and check the health and population of the Yak. Rakkab is cognizant that the Yak is not in danger, if so, it will be a disadvantage if it does not take any precaution to sustain the Yak that is the only species needed to create t he drug Gallvectra. So, the taking of the Yak does not only for the creation of the drug, but also to look into how to sustain and increase the population of the Yak. Traditional Subsistence The taking of the Yak is also to accommodate the needs of traditional subsistence users of such species. Since Rakkab is taking action to sustain the population of the Yak in enhancing it survival rate, it might help Aurok to continuously proceed to its custom, mores and ritual of observing the Yak cultural and religious rights and tradition. Extraordinary Circumstances The taking of the Yak is if extraordinary circumstances requires it. It is only an exception, according to the last paragraph of the Article, if it is not in disadvantage of the Yak.
III.
The harvesting of the Yak in Rakkab violates the cultural and religious rights of the people of Aurok, and Rakkab must prohibit such hunting forthwith; and
Laws: Convention on Biological Diversity. Article 10 (c) of the Convention on Biological Diversity states that Each contracting party shall, as far as possible and as appropriate, and predominantly foe the purpose of complementing in situ measures: (c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements. Party it favored: AUROK Why? How?: In the advent of mass production of Galvectra, Rakkab’s disregard of the of the cultural and traditional use of the lustuk enzyme of the Kayleff Yak is an evident violation of the stipulation of the CBD agreement. Laws: Indigenous and Tribal Peoples Convention 1989 Art. 2 (b) promoting the full realization of the social, economic and cultural rights of these peoples with respect for their social and cultural identity, their customs and traditions and their institutions Art. 5 (a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognized and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals Party it favored: AUROK Why? How?: The Aurok has the right to observe their Pivzao traditions in using the Kayleff Yak’s gallbladder in making their traditional dish Tirhinga Nos Lustuk. They should not be deprived of their right to exercise their long time tradition by taking away most of the migrating Kayleff Yak by the Rakkab’s production of Galvectra. IV.
Rakkab must pay Aurok, as parens patriae for the Aurokan people, a portion (to be determined in subsequent proceedings) of the profits realized from sales of the drug Gallvectra, because the appropriation and exploitation of traditional knowledge belonging to the Aurokan people without compensation is inconsistent with international law. Laws: 2010 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of the Benefits Arising from Their Utilization
Article 7 Nagoya Protocol states that: In accordance with domestic law, each Party shall take measures, as appropriate, with the aim of ensuring that traditional knowledge associated with genetic resources that is held by indigenous and local communities is accessed with the prior and informed consent or approval and involvement of these indigenous and local communities, and that mutually agreed terms have been established.
and Article 5 (1) of: 1. In accordance with Article 15, paragraphs 3 and 7 of the Convention, benefits arising from the utilization of genetic resources as well as subsequent applications and commercialization shall be shared in a fair and equitable way with the Party providing such resources that is the country of origin of such resources or a Party that has acquired the genetic resources in accordance with the Convention. Such sharing shall be upon mutually agreed terms. Party it favored: AUROK Why? How?: The basis of the patent issued to DORTA for GALVECTRA was the study done by Dr. Bello for the medical benefits of the lustuk enzyme from the yak’s gallbladder. He did his research and studies on the Aurokan’s way of life, the use of traditional medicine and cultural practices, especially in the use of the yak’s enzyme and its health benefi ts. A group of leading biologists have the opinion that “Gallvectra, indeed, appears to have been inspired by the traditional beliefs of Aurokans in t he health-protecting properties of the Yak gallbladders.” For this substantial reasons, it is just but right for the Aurokan people to receive their share and profit from the sale of Galvectra. Laws: Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the Convention on Biological Diversity Art. 1 Objective The objective of this Protocol is the f air and equitable sharing of the benefits arising from the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding, thereby contributing to the conservation of biological diversity and sustainable use of its components. Party it favored: RAKKAB Why? How?: Laws: Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits arising from their Utilization to the Convention on Biological Diversity Art. 5 Fair and Equitable Benefit Sharing 4. Benefits may include monetary and non-monetary benefits, including but not limited to those listed in the Annex. Party it favored: RAKKAB Why? How?:
Over the first three decades of its existence, the Department of Research, Technology & Application applied for and was granted numerous patents and government approvals to market its inventions, especially in the health- care sector. In February 1996, Rakkab’s Parliament adopted legislation to privatize the Department. The newly private company, DORTA M/S (“DORTA”) was incorporated in Rakkab on 6 April 1996, and public trading of its shares began on the New York Stock Exchange a month later. According to the legislative act privatizing the Department – and according to DORTA’s private charter – the government of Rakkab must always own no less than 9.9 percent and no more than 19.9 percent of the shares of DORTA. As of the present date, Rakkab holds approximately 12% of DORTA’s stock. Issue: Is DORTA a public or private company? Applicable Law: Presidential Proclamation No. 50 as amended by RA Nos. 7181, 7661, 7886, and 8758 PROCLAIMING AND LAUNCHING A PROGRAM FOR THE EXPEDITIOUS DISPOSITION AND PRIVATIZATION OF CERTAIN GOVERNMENT CORPORATIONS AND/OR THE ASSETS THEREOF, AND CREATING THE COMMITTEE ON PRIVATIZATION AND THE ASSET PRIVATIZATION TRUST Whom It Favors and Why: Respondent – It is the basis of the privatization of DORTA, thus disproving Aurok’s claims that the company is a public one. Fact 2: On 11 November 2004, DORTA filed a patent application with the Rakkabi Intellectual Property Ministry for the medication derived from the Lustuk Enzyme, which it named “Gallvectra,” to treat insulin resistance-related diseases. The application listed Dr. Bello as the inventor. According to Rakkabi law, patent applications are published in the Official Journal and on the Ministry’s website and are open to public comment for a period of 18 months before a final decision is made. Once issued, the term of a patent is 20 years from the date of first filing. Issue: Is Gallvectra properly patented? Applicable Law(s): Paris Convention on the Protection of Industrial Property Article 4A(1) - Any person who has duly filed an application for a patent, or for the registration of a utility model, or of an industrial design, or of a trademark, in one of the countries of the Union, or his successor in title, shall enjoy, for the purpose of filing in the other countries, a right of priority during the periods hereinafter fixed. Article 4A(2) - Any filing that is equivalent to a regular national filing under the domestic legislation of any country of the Union or under bilateral or multilateral treaties concluded between countries of the Union shall be recognized as giving rise to the right of priority. Article 4ter – An inventor shall have the right to be mentioned as such in a patent. Whom It Favors and Why:
Respondent – Proof that Rakkab complied with the rules and regulations on IP registration. It may also be used as rebuttal evidence against Aurok’s claims of cultural encroachment. Fact: In response to the CMS decision, and in accordance with applicable law, on 15 November 2017, the Rakkabi Ministry of Agriculture promulgated Regulation AG/2017-0300, which provides: 1. All licenses permitting the hunting of the Kayleff Yak issued prior to the date of this Regulation are hereby terminated and declared no longer valid, effective immediately; 2. The killing of Yak in the territory of Rakkab by an individual not in possession of a valid license issued by the Ministry of Agriculture is prohibited; 3. The Ministry shall issue a license for any taking of Yak it considers to be consistent with Section 5 of Article III of the CMS and may impose limits on the number of Yak that any license holder may take, as it deems appropriate; 4. The Ministry may issue licenses hereunder to private companies, whose employees or agents of those companies shall be deemed licensed individuals pursuant to this Regulation, so long as any hunting limit imposed on the license holder is understood to apply to its employees or agents in aggregate; and 5. The Ministry within its discretion may require that license applicants demonstrate their familiarity with relevant safety and environmental rules, may monitor compliance with the requirements of this Regulation and any license issued hereunder, and may impose fines on violators of the conditions attached to any license. Issue: Do Rakkabi yak hunters comply with international law? Applicable Law: Bulgarian Law 60486 Art. 53. (amend. SG 79/02) (1) The persons, managing the game, shall pay annual fee for use. (2) The terms, the conditions and the order for determining the amount of the annual fee for use of the game and for its spending shall be provided with the regulation for implementation of the law. Art. 54. (1) The terms, the days, the methods and the standards of hunting shall be determined with the regulation for implementation of the law. (2) (amend. SG 79/02) Depending on the biological development of the game, the damages, caused by it, and the epizootic situation, the Minister of Agriculture and Forests shall, upon proposal by the chief of the National Forest Department or of the general director of the National veterinary – medical service and after co-ordination with the Minister of Environment and Waters, with an order change the terms for hunting, regulate the number of the game reserves, as well as restrict or prohibit the hunting of some kinds of game. (3) (amend. SG 79/02) For regulation of the number of some kinds of game and at occurred epizootic situation resources shall be ensured from the state budget. (4) Hunting with scientific objectives shall be permitted by the chief of the National Forest Department during all the year under conditions and by order, determined in the regulation for implementation of the law. (5) The regulating of the number of protected and other kinds of wild animals shall be permitted by the chief of the National Forest Department after co-ordination with the Ministry of Environment and Waters. Whom It Favors and Why:
Both Applicant and Respondent – for the former, on the ground that the latter implemented the rules only after being accused of poaching; for the la tter, on the ground that the hunters’ activities are in accordance with law Sources: http://www.chanrobles.com/presidentialproclamationo50.htm https://lawphil.net/statutes/repacts/ra1999/ra_8758_1999.html https://www.wipo.int/wipolex/en/treaties/text.jsp?file_id=288514 http://faolex.fao.org/docs/texts/bul60486
