Can unjust enrichment act as a residual measure for claiming compensation for the use of biological resources when contractual arrangements don’t work? Examining this legal doctrine and its relevance to access and benefit-sharing, Achyuth B. Nandan argues that, in light of varying state capacity to implement the ABS mechanism and weak user-side enforcement, unjust enrichment can act as a residual measure within the ABS framework and aid in furthering the purpose of ABS.
Achyuth is a PhD candidate at Rajiv Gandhi School of Intellectual Property Law, IIT Kharagpur, specialising in intellectual property law. He is also a registered advocate with the Bar Council of Kerala. His previous posts can be accessed here.
Unjust Enrichment as a Residual Remedy for Biopiracy? Rethinking ABS Failures Beyond MAT
By Achyuth B. Nandan
Introduction
A recent paper (paywalled) by Yangzi Li and Jyh-An Lee has highlighted a remedial dilemma emerging in the realm of generative AI copyright disputes. While such litigation primarily turns on the nature and scope of exclusive rights allegedly infringed, they argue that focusing exclusively on infringement may overlook a distinct question: whether substantial commercial benefits should be retained in circumstances where no compensation framework exists. Their core claim is that unjust enrichment offers a corrective lens that operates alongside, and sometimes beyond, conventional infringement analysis by addressing benefit retention rather than solely liability.
This remedial insight invites reconsideration beyond copyright and data governance. Global biodiversity governance under the Convention on Biological Diversity and the Nagoya Protocol (CBD-NP) faces a structurally similar dilemma. Despite wide participation and the formal adoption of access measures by several states, domestic implementation of compliance and benefit-sharing obligations remains uneven, and concerns about biopiracy persist.
Rather than displacing access and compliance mechanisms under the CBD-NP framework, this post explores whether unjust enrichment can be conceived as a corrective and residual doctrine, activated only when the contractual promise of ABS, primarily operationalised through Mutually Agreed Terms (MAT), fails. While the idea may resonate with broader North-South distributive concerns, the argument advanced here is doctrinal rather than rhetorical.
The Contractual Heart of Biodiversity Governance: MAT as the Legal Fulcrum
The CBD reinforces sovereignty over Genetic resources (GRs) by transforming it into an operational access regime under Article 15. Access is made subject to the prior informed consent (PIC) of the providing state (Article 15.5) and governed by MAT (Article 15.4), thereby transforming sovereignty from a declaratory norm into a legally structured system implemented through national legislation. The NP further concretises this framework: Article 5 mandates fair and equitable benefit-sharing upon MAT, while Articles 6 and 7 anchor access to GRs and associated traditional knowledge (ATK) in PIC.
Complementing access obligations, Articles 15-17 introduce user-side compliance and monitoring mechanisms, requiring parties to ensure that GRs/ATK utilised within their jurisdiction were accessed in accordance with applicable PIC and MAT requirements. Within this architecture, MAT assumes central importance. While PIC reflects a public sovereign act, MAT functions as a private contractual instrument that operationalises legality and channels benefit-sharing in practice.
Notwithstanding the normative coherence of this framework, global implementation of ABS obligations remains uneven. Not all CBD parties have joined the Protocol, and domestic compliance frameworks are often weak or absent. This asymmetry renders MAT fragile and user-side enforcement inconsistent, exposing structural gaps that cannot be effectively remedied solely through sector-specific measures such as patent opposition.
Disincentivization, Disclosure Fatigue and the Return of Biopiracy
From a contract-theory and transaction-cost perspective, disincentivization within the ABS framework is structurally produced. Contracts are the backbone of GRs/ATK governance, reallocating relative property rights and defining the conditions of ABS through MAT. Yet the incentive structure of ABS contracts is inherently weak. Access to GRs/ATK and the generation of benefits do not occur simultaneously, creating a temporal lag that undermines enforceability. This is compounded by asymmetric information, administrative complexity, and governance deficits, as well as an over-reliance on due-diligence and best-effort compliance models. Once GRs/ATK leave the source country, regulatory control diminishes sharply. Faced with high compliance costs and a low likelihood of meaningful sanctions, users are rationally incentivised to weigh compliance against non-compliance, often opting for strategic avoidance.
Disclosure obligations within the patent systems risk becoming symbolic. Disclosure without effective tracking, monitoring, and verification of utilisation amounts to procedural compliance rather than substantive control. Even strengthened disclosure standards, such as those contemplated in the recent WIPO GRTK Treaty, remain limited where non-disclosure carries minimal consequences for patent validity or enforceability. In practice, disclosure can devolve into formalism, while structural advantage accrues to technologically advanced jurisdictions.
Unsurprisingly,biopiracy has not disappeared over the past decade but has instead undergone a systemic adaptation. Moving beyond the classic, well-known cases, contemporary misappropriation increasingly occurs through fragmented research chains, involving multiple intermediaries, laboratories, and cross-border stages of research and development, as well as intermediary sourcing and jurisdictional arbitrage, making detection harder while preserving the underlying logic of unjust extraction without fair return. These patterns reveal that biopiracy today thrives less on illegality than on regulatory gaps and weak user-side compliance. In this context, equity-based doctrines such as unjust enrichment warrant reconsideration, not as substitutes for ABS, but as correctives where contractual and regulatory mechanisms underperform.
Unjust Enrichment as a Residual Doctrine within the ABS Framework
At its core, the law of unjust enrichment intervenes where one party has been enriched at the expense of another in circumstances the law regards as unjust, operating on the counterfactual premise that had a lawful contractual arrangement existed, restitution would have followed. It is therefore not fault-based but corrective, concerned less with wrongdoing and more with reversing unfair benefit capture. While restitutionary principles are recognised across common law and civil law jurisdictions in varying forms, they are typically activated where established legal categories fail to adequately address benefit retention without legal justification.
In India, unjust enrichment is doctrinally embedded within the quasi-contractual framework of Sections 68-72 of the Indian Contract Act, 1872, particularly Section 70 in the context of ABS. Section 70 provides that where a person lawfully does something for another not intending it to be gratuitous, and the other enjoys the benefit thereof, the latter is bound to make compensation. The provision reflects the foundational restitutionary principle that enrichment knowingly accepted in a non-gratuitous context cannot be retained without reciprocal obligation.
The Supreme Court has elaborated this corrective logic beyond strict contractual privity. In Indian Council for Enviro-Legal Action v Union of India, the court invoked unjust enrichment within the broader framework of environmental liability, holding that entities responsible for ecological harm could not be permitted to retain economic advantages derived from such conduct. The judgment underscores that restitution may operate even outside a conventional contract, where retention of gain is normatively indefensible.
Similarly, in Great Eastern Shipping Company Limited v Union of India, the court reaffirmed the principle underlying Section 70, clarifying that where goods or services are accepted in a non-gratuitous context, the recipient cannot retain the benefit without a compensatory obligation. The emphasis on non-gratuitous transfer is particularly instructive. The law presumes that where a benefit is conferred with the expectation of reciprocity, retention without compensation is unjust.
This reasoning aligns closely with the structural logic ABS. The accession to or utilisation of GRs/TK, whether through physical access or digital sequence information (DSI), is not considered a gratuitous transfer under the CBD-NP framework. The ABS architecture presupposes reciprocity; access is conditioned upon fair and equitable benefit-sharing. Where utilisation generates downstream economic gain without lawful access or equitable return, the situation resembles the non-gratuitous benefit scenarios addressed under Section 70 and interpreted in the jurisprudence above. The corrective logic of unjust enrichment therefore fits coherently within the broader ABS scheme, particularly where contractual instruments such as MAT are absent, incomplete, or unenforceable.
The claim advanced here is structural: unjust enrichment has not been systematically positioned within ABS discourse as a residual corrective response to benefit capture when MAT-based enforcement fails. To date, biodiversity governance has largely proceeded on the assumption that the obligations stipulated under the CBD and the Nagoya Protocol would crystallise through legislative, administrative, and policy implementation at the national level. While access mandates have indeed been adopted by a considerable number of contracting parties, user compliance remains comparatively unrealised. Disincentivization in implementing compliance measures and difficulties in tracking limit effectiveness. In this context, integrating unjust enrichment represents a doctrinal extension rather than a remedial invention.
Importantly, unjust enrichment would attach at the locus of benefit retention, typically in user jurisdictions where commercialisation occurs. Because liability follows enrichment, its practical application arises where value crystallises. This logic aligns with Article 18 of the NP, which anticipates recourse within domestic legal systems for benefit-sharing disputes, and complements Article 17’s monitoring mandate. Thus, unjust enrichment operates in the interstitial spaces of biodiversity governance, attaching corrective obligation where enrichment crystallises and formal compliance pathways fall silent.
How the claim travels in Biodiversity Governance Architecture
Article 18 of the Nagoya Protocol, titled Compliance with Mutually Agreed Terms, is the only explicit provision addressing dispute resolution and remedial mobility. Article 18.1 encourages inclusion of dispute-resolution clauses in MAT, and Article 18.2 requires Parties to provide opportunities to seek recourse in domestic legal systems. Together, these provisions recognise that ABS disputes will frequently transcend provider-state territory and require remedies in user jurisdictions.
However, Article 18 presupposes the existence of MAT. Where MATs are absent or unenforceable, due to regulatory gaps, jurisdictional dislocation, or strategic non-compliance, the treaty provides no substitute. It is here that unjust enrichment can travel across jurisdictions. Unlike contract enforcement, unjust enrichment does not depend on privity or formal consent instruments. It attaches to the place where enrichment is realised, enabling courts in user jurisdictions to address benefit capture even if access occurred elsewhere and without concluded MAT. In this sense, unjust enrichment aligns with the remedial logic implicit in Article 18.
The institutional design of PIC and MAT across jurisdictions shapes how unjust enrichment claims may arise. In many countries, including India, where the ABS regulatory architecture is largely State-driven and access obligations are comparatively well-defined ex ante, the scope for invoking unjust enrichment is more likely to arise at the stage of downstream utilisation rather than initial access. By contrast, unjust enrichment may assume greater practical significance in jurisdictions characterised by hybrid or community-centric ABS models, where PIC and benefit-sharing arrangements are concluded closer to knowledge holders, contractual structures are more fragmented, and enforcement capacities are uneven. In such settings, unjust enrichment offers a flexible remedial pathway to address benefit capture without being contingent on the existence or enforceability of formal State-mediated MAT.By contrast, jurisdictions such as Bhutan place greater leverage in the hands of local communities, allowing PIC and benefit-sharing arrangements to be concluded closer to the knowledge holders themselves. In such models, unjust enrichment may operate directly in favour of communities where benefits accrue without consent or equitable return. Other jurisdictions, including Brazil, Peru, South Africa, and Kenya, adopt hybrid approaches that combine State oversight with varying degrees of community participation, further underscoring that the form and forum of ABS claims are deeply contingent on domestic institutional design. In this context, it is also pertinent to highlight that the invocation of unjust enrichment does not negate the persistent challenges of tracking and monitoring utilisation, but operates alongside them.
Conclusion
The ABS framework under the CBD and the Nagoya Protocol framework remains normatively robust but operationally uneven, particularly in relation to downstream utilisation and user-side compliance. Where access controls, disclosure obligations, and contractual mechanisms fail to fully capture benefit flows, the problem is not the absence of law but the absence of an effective remedial response. In this context, unjust enrichment offers a limited yet legally coherent residual remedy, one that neither displaces treaty-based mechanisms nor promises perfect enforcement, but addresses benefit capture in circumstances where formal compliance pathways fall silent.
