No assurance of technology transfer during pandemic outbreaks

The Pandemic Agreement does not guarantee provision of technology for the manufacture of health products, undermining prospects of broadening production and availability of these items in times of emergency.

Nithin Ramakrishnan

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THE WHO Pandemic Agreement (PA) does not secure technology transfer for when it is most critically needed – during health emergencies, despite its objective ‘to prevent, prepare for and respond to pandemics’.

All references to transfer of technology in Article 11 and elsewhere in the Agreement are qualified with the clause ‘as mutually agreed’, which is defined in a footnote as ‘willingly undertaken and on mutually agreed terms, without prejudice to the rights and obligations of the Parties under other international agreements’.

Without guaranteed commitments on technology transfer, it will be challenging to diversify production of pandemic products.

Contrary to persistent media criticism over the three years of negotiations in the Intergovernmental Negotiating Body (INB) that Global South demands for the pathogen access and benefit-sharing system would make or break the PA deal, it was developed countries’ push to make technological cooperation voluntary that nearly derailed the talks. The final text of the PA was agreed only after difficult negotiations that stretched beyond the original schedule.

It is clear that Article 11 of the Agreement, which addresses technology transfer, including knowledge, skills and expertise, does not mandate sharing by technology holders but rather remains contingent on the consent of the technology holder, even during pandemic emergencies. However, the footnoted definition leaves open the possibility for Parties to utilise rights that they have under other international agreements, such as compulsory licensing, to require the transfer of technology. 

Article 11 is also riddled with other qualifier clauses such as ‘as appropriate’, ‘where and as feasible’, and ‘subject to applicable law’. It also relies on best-effort language like ‘encourage’, ‘promote’ and ‘facilitate’ – a regrettable dilution of what could have been stronger, enforceable commitments.

The problems extend beyond Article 11. The INB introduced the ‘as mutually agreed’ clause into Articles 4, 12 and 19 (Article 17, after renumbering post-INB) as well as paragraph 17 of the preamble (paragraph 16, after renumbering post-INB), further weakening key provisions. An attempt was also made to introduce the footnote into Article 9.5; however, a last-minute intervention replaced ‘technology transfer’ with a broader clause (iii): ‘provisions enabling access to technology to facilitate research and development and geographically diversified local production.’

Article 4 (on prevention measures like early containment and immunisation) and Article 10 (on sustainable, geographically diverse production) both deal with issues that rely on access to technology. But with weakened text, meaningful technology transfer remains elusive, likely to significantly affect Articles 4 and 10 as well as undermine pandemic prevention, preparedness and response activities.

Content of Article 11

The final title of Article 11, ‘Transfer of technology and cooperation on related know-how for the production of pandemic‑related health products,’ was accepted only following prolonged debate in the INB negotiations.

Over the last several INB sessions, another title, ‘Transfer of technology and know-how for the production of pandemic‑related health products’, had been under consideration. The change was made due to consistent objection from the Russian delegation to accepting any obligation to transfer or share know-how along with technology. According to Russia, they could only cooperate in this regard.

Paragraph 1 of Article 11 outlines six soft commitments:

a)       To promote and facilitate, ‘as mutually agreed,’ technology transfer, including relevant knowledge, skills, expertise and know-how;

b)       To enhance access to licences for government-held technologies and encourage private holders to do the same;

c)       To improve transparency around licensing terms that impact equitable technology access;

d)      To encourage rights holders to forgo or reduce royalties, particularly for developing-country manufacturers, during pandemics;

e)       To promote voluntary transfers by private holders to WHO-coordinated hubs;

f)       To encourage manufacturers to share production-related information during emergencies.

Additionally, paragraphs 2–6 cover the following: capacity building for technology transfer (e.g., absorption capacities); cooperation in other fora to adopt time-bound measures (e.g., intellectual property waivers); reaffirmation of TRIPS flexibilities; development or strengthening of technology transfer initiatives; and reviewing domestic laws to enable implementation.

Yet, none of these ensure that technology or know-how will actually be transferred. The phrase ‘as mutually agreed’ offers a clear exit route for technology holders, who can stall or reject deals citing lack of consensus. No binding obligation exists to compel private rights holders to cooperate. Parties are merely asked to ‘encourage’ them.

Russia also raised concerns over inequity in obliging Parties to share only government-held or funded technologies. This, it argued, would disproportionately affect Russia, where state ownership is high, while countries like the United States could evade sharing by pointing to private sector control.

Thus, what remains is whether the Parties to the PA will exercise their rights and obligations under other international agreements – including legal tools available in these agreements such as flexibilities under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) – to trigger sharing of technologies with developing-country manufacturers.

The road to defining ‘as mutually agreed’

Since the start of the INB negotiations, a major sticking point in Article 11 had been the developed countries’ insistence that technology transfer occur only on ‘voluntary and mutually agreed terms.’

Knowing this position beforehand and to overcome it, developing countries initially proposed a WHO-led technology access programme and mandatory technology transfer clauses in publicly funded research and development (R&D) contracts. However, this proposal was split across Articles 9.5 and 11.5 and significantly diluted during negotiations from the very beginning.

As the debate progressed, developed countries pushed to insert ‘voluntary and mutually agreed terms’ across Articles 9, 11 and 19 (post-INB Article 17) wherever transfer of technology was mentioned, while developing countries called for ‘voluntary’ to be dropped as a compromise.

After the newly installed Trump administration announced in January that the US was withdrawing from WHO, it was Germany which led the G7 developed countries’ position to continue opposing any binding language on technology transfer. A proposed workaround was to define ‘technology transfer’ in a way that avoided compulsory measures. But developing countries rejected defining the term, fearing this would narrow its interpretation and set a bad precedent.

In February, the INB Bureau proposed to the 13th meeting of the INB (INB13) the following definition that did not refer to the term ‘voluntary’: ‘For the purposes of this Agreement, Transfer of Technology is understood to be on fair and most favourable terms, including on concessional and preferential terms, and in accordance with mutually agreed terms and conditions. In the case of technology subject to patents, such transfer shall be provided on terms which recognize and respect protection of intellectual property rights.’

Both developed and developing countries did not like this proposal. The former wanted reference to ‘voluntary’, while the latter wanted to include a ‘without prejudice’ clause to safeguard the compulsory measures that may be undertaken by Parties based on rights in other international agreements. From this point onwards, it became clear that the INB process would not lead to any advancement over the existing international legal framework on technology transfer. Much of the developing countries’ efforts subsequently focused on resisting regressive standards.

After INB13 was suspended on 21 February, another definition was proposed by the INB Bureau: ‘For the purposes of this Agreement, transfer of technology refers to a mutually agreed process where technology is transferred on mutually agreed terms. This understanding is without prejudice to and does not affect the measures that Parties may take in accordance with their domestic or national laws and regulations, and compliant with their international obligations on intellectual property.’

Developing countries did not accept this proposal because ‘mutually agreed process’ was synonymous with ‘voluntary’. After informal meetings, the Bureau circulated yet another proposal on 25 March with a further tweak dropping the word ‘mutually’ from the definition, but that too failed to gain traction.

When INB13 resumed in April, the Ambassador of Mexico, not a regular participant in the INB negotiations, appeared in person on 11 April and proposed an alternative to the terms ‘voluntary’ and ‘mutually agreed process’. She proposed to use ‘willingly undertaken’ in the definition instead of ‘agreed process’, and pleaded for the INB to agree, in the interest of time and to conclude the PA negotiations. However, developing countries were not willing to accept this proposal either.

Late in the night of 11 April, a proposal to define ‘mutually agreed’ instead of ‘technology transfer’ was officially tabled. The proposal was to add ‘as mutually agreed’ to the text wherever technology transfer was mentioned in Article 11 and elsewhere, and to insert a footnote defining ‘as mutually agreed’ as follows: ‘For the purposes of this agreement, “as mutually agreed” means willingly undertaken and on mutually agreed terms, without prejudice to the rights and obligations of the Parties under other international agreements.’

According to certain diplomatic sources, the idea of defining ‘as mutually agreed’ as opposed to defining ‘technology transfer’ seems to have evolved from a meeting held outside of WHO premises, and some non-state actors had also been involved in detailing and promoting the idea. But for the majority of the delegations in the INB, this came up as a late-night solution on 11 April, emerging from the personal initiatives of a group of delegates making their best efforts to conclude the PA negotiations. Brazil reportedly proposed this definition.¹

The phrase ‘willingly undertaken’ was particularly unpopular amongst several developing countries. Despite this dissatisfaction, compromise-seeking delegates, supported by the WHO Director-General and Secretariat, urged acceptance. Members from WHO’s developing-country regions were reportedly lobbied to support it. Some civil society and academic voices from the Global North also promoted the compromise, without fully considering its long-term implications.

Most developing countries reluctantly accepted the definition after marathon negotiations that lasted over 20 hours, ending on 12 April. However, the European Union (EU) and Canadian delegations expressed reservations, saying they needed to consult their capitals, prompting an extension of INB13 to 15 April.

Limited discussions on ‘as mutually agreed’ definition on 15 April

When INB13 resumed on 15 April, INB Co-Chair Ambassador Anne-Claire Amprou (France) opened the session by proposing that the phrase ‘as mutually agreed’ be added alongside ‘transfer of technology’ and be applied to several articles, specifically Articles 4.6, 9.5, 11.1(a), 11.1(e), 11.5, 12.8(e) and 19 (post-INB Article 17), as well as preambular paragraph 17 (post-INB paragraph 16).

This proposal surprised many delegations, as the compromise had initially been suggested only for Articles 11 and 19 (post-INB Article 17), not for Articles 4, 9 and 12. Delegations from the Africa Group, Malaysia, Bangladesh, Indonesia and others contested the automatic transposition to these additional articles. They insisted that such an approach should only be accepted after a detailed consideration of the relevant provisions.

The Co-Chair insisted on adopting the approach uniformly across all provisions and reiterated several times that the compromise deal among INB members was to use the phrase ‘as mutually agreed’ with a footnote wherever ‘technology transfer’ was used.

Several developing-country delegations confirmed on anonymity that there had been no such deal beyond Articles 11 and 19 (post-INB Article 17). Under Article 9, there was a note which allowed for coming back to consider the language of paragraph 5 taking holistically the outcomes of the Article 11 negotiations. This was not to indicate automatic transposition of the approach adopted in Article 11 to Article 9. Certainly Articles 4 and 12 had been agreed without any notes and conditions.

Some delegations, including Eswatini, Kenya and India, pointed out that the phrase ‘as mutually agreed’ also appeared in provisions unrelated to technology transfer. For instance, Article 21.4 read: ‘The Parties shall protect, as mutually agreed, any confidential information that is exchanged.’ The phrase ‘for the purposes of this agreement’ in the footnote definition could cause confusion in the implementation of this provision. Hence, those delegations argued that this was ‘inappropriate’ and should be removed. In response, the Bureau and Secretariat clarified that for provisions like Article 21.4, there would be no footnote.

Implications of ‘as mutually agreed’

Trivialising pandemic emergencies and preparedness: The PA’s reliance on the phrase ‘as mutually agreed’ for technology transfer undermines the urgency of pandemic emergencies by making technology transfer dependent on voluntary negotiations between technology holders and recipients. This approach reduces pandemic situations to normal market conditions, overlooking the exceptional nature of such crises, and diminishes the primacy of public health and the right to life over pharmaceutical companies' intellectual property rights and profits. Although the definition is without prejudice to ‘the rights and obligations of the Parties under other international agreements’, it sends a problematic message that emergencies do not warrant exceptional responses, effectively trivialising pandemic preparedness.

No concessional terms for developing countries: Unlike other international agreements such as the Convention on Biological Diversity (CBD), this definition as well as other parts of Article 11 of the PA fail to acknowledge the special status of the developing countries and to provide access to technologies on fair and concessional terms.

For instance, Article 16.2 of the CBD states: ‘Access to and transfer of technology referred to in paragraph 1 above to developing countries shall be provided and/or facilitated under fair and most favourable terms, including on concessional and preferential terms where mutually agreed.…’

Unlike in the above stipulation, there is no call in Article 11 of the PA, or in the footnote definition of ‘as mutually agreed’, for fair or concessional terms for developing countries.

Limited cooperation on time-bound measures for technology transfer

Paragraph 3 of Article 11, addressing cooperation among Parties within international and regional organisations to accelerate or scale up production of pandemic-related health products through time-bound measures, was another contentious provision. An illustrative example of such measures is the TRIPS decision adopted by the World Trade Organization (WTO) during the COVID-19 pandemic.

Initially, on 10 April, INB member states reached tentative agreement on paragraph 3 as follows: ‘The Parties shall cooperate, as appropriate, to implement time-bound measures where agreed within the framework of relevant international and regional organisations to which they are a party, to accelerate or scale up the manufacturing of pandemic-related health products, to the extent necessary to increase the availability, accessibility and affordability of pandemic-related health products during pandemic emergencies.’

However, late-night negotiations on 11 April saw developed countries, led by the EU, retreat from this position. They proposed changing the text to: ‘The Parties shall cooperate, where deemed as appropriate, with regard to time-bound measures....’

The Africa Group opposed this new proposal made by the EU and allies. It also objected to the phrase ‘where agreed,’ arguing it could be interpreted to remove the obligation to cooperate in adopting such measures in other organisations.

Botswana, representing the Africa Group, emphasised on 15 April that limiting cooperation solely to measures already adopted elsewhere was redundant and would create unnecessary delays, referencing the two-year negotiation delay experienced by India and South Africa’s TRIPS waiver proposal at the WTO.

India tried to weigh in supporting the Africa Group proposals and proposed to add ‘adoption and implementation’ and also delete the EU proposal of ‘where deemed’. The Indian proposal would have read: ‘The Parties shall cooperate, as appropriate, with regard to adoption and implementation of time-bound measures where agreed within the framework of relevant international and regional organisations....’

However, the INB Co-Chair did not reflect the same in the on-screen text, despite support from Botswana (speaking on behalf of the Africa Group) and South Africa. Meanwhile the phrase ‘where agreed’ was replaced with ‘to which they have agreed’ as proposed by the EU.

After many rounds of back and forth, finally paragraph 3 was agreed as follows: ‘The Parties shall cooperate, as appropriate, with regard to time-bound measures to which they have agreed within the framework of relevant international and regional organisations to which they are a party, to accelerate or scale up the manufacturing of pandemic-related health products, to the extent necessary to increase the availability, accessibility and affordability of pandemic-related health products during pandemic emergencies.’

The compromise was achieved by explaining that the clause ‘with regard to’ is open-ended and could mean both adoption and implementation of measures available within the framework of other international organisations.

Transfer of publicly funded technologies

Article 9.5 of the PA addresses the inclusion of technology transfer conditions in publicly funded R&D agreements for pandemic-related products. Developed countries attempted to insert the phrase ‘as mutually agreed’ specifically into clause (iii) of Article 9.5 that calls for inclusion of conditions for technology transfer.

Developing countries, led notably by Malaysia, Kenya and Botswana, strongly opposed this insertion. They argued that adding ‘as mutually agreed’ was inappropriate here, since the clause explicitly refers to obligations on Parties themselves who are funding the R&D, to include clear and effective technology transfer provisions in their public financing agreements.

Malaysia emphasised that the type and scope of technology transfer conditions in public financing agreements must be left to the discretion of the funding Parties, allowing them flexibility and autonomy to ensure equitable and timely access to pandemic-related health products, particularly for developing countries. Any reference to mutual agreement with technology holders, Malaysia argued, would constrain Parties’ ability to set effective terms to achieve the intended public health outcomes.

To develop a compromise, Norway proposed replacing ‘technology transfer’ with a broader clause (iii): ‘provisions enabling access to technology to facilitate research and development and geographically diversified local production.’ This eventually made it into the final text.                                                                                        

Nithin Ramakrishnan is a senior researcher with the Third World Network.

Notes

1. P. Patnaik (2025). Nearing a Deal: Countries Converge Closer to Consensus [Pandemic Treaty Negotiations]. Geneva Health Files. https://genevahealthfiles.substack.com/p/nearing-a-deal-countries-converge-closer-consensus-pandemic-agreement-geneva-world-health-organization-pabs-tech-transfer-prevention-multilateralism-global-health

*Third World Resurgence No. 363, 2025/2, pp 22-26