Pablo Sigal
04/08/2021 15:53
Clarín.com
Society
Updated 04/08/2021 3:54 PM
Pfizer's contract with Argentina remains
a true enigma
, perhaps one of the biggest since the pandemic hit our country.
To explain why an agreement could not be reached, the Government argued that the contract required by the pharmaceutical company
contained “abusive clauses”.
However, as
Clarín
reported
two weeks ago,
Brazil, Chile, Uruguay, Ecuador, Colombia and Peru
reached agreements.
The leak, in the last hours, of the contract that Brazil signed for
100 million doses
allows us to draw some conclusions in this regard.
In the 66-page contract, to which
Clarín
had access
, there is a part that makes special reference to the two controversial points that were in conflict between the US laboratory and our country.
On the one hand, the issue of
compensation in the event of provider “negligence”
;
on the other, the way in which the purchasing State must respond economically to the eventuality of a lawsuit and what happens to its
sovereign immunity.
Those points are on pages 15 and 16 of the contract.
And it can be concluded that they
did not ask
Brazil
for anything different
from what they asked Argentina when the negotiation took place.
The difference is that Brazil decided to sign a contract
worth more than one billion dollars
under these conditions
.
The two clauses in question are detailed below, which were the ones that supposedly left the negotiations truncated in Argentina.
Limits of liability
The first clause is the one that refers to the “limits of liability”.
There it is stated that “under
no circumstances shall a party be liable to the other
party or its affiliates, whether arising from civil liability (including, without limitation, negligence), contract or otherwise, for any indirect, special, unforeseen damages. , incidental or punitive, whether in contract, guarantee, civil liability,
negligence
, objectionable liability or arising out of or in connection with this agreement, the transactions contemplated therein or any breach of said instrument (whether or not reasonably foreseeable and even if the first party considers that it has been informed of the possibility that the other party may incur such loss or loss) ”.
Minister Ginés González García and President Alberto Fernández.
Text continues: “In no event shall Pfizer be liable to the purchaser for any direct damage, except to the extent that such
direct damage
is the result of a substantial breach of a statement or warranty, by Pfizer, under this agreement and that directly and exclusively caused the damage ".
It continues: "Under no circumstances will Pfizer and its affiliates be liable to the buyer (whether arising out of warranty, liability (including but not limited to negligence), contract, objectionable liability or otherwise) for the buyer's liability to third parties, including but not limited to, by way of contribution, compensation or any claim for which the buyer would have to indemnify Pfizer if such claim were brought directly against Pfizer ”.
Waiver of sovereignty immunity
On the other hand, there is the clause that refers to the “Waiver of sovereignty immunity”.
There it is stated that “the buyer, on his own account and for the Brazilian State,
expressly and irrevocably waives
any right of immunity that he may have or acquire in the future (by way of sovereign immunity or any other form of immunity), including any controlled by any agency, autarky, central bank or monetary authority in Brazil, in relation to any arbitration (...) or any other judicial process instituted to ratify or execute any arbitration decision, order or award ”.
And it clarifies: “Whether in Brazil or in any other foreign jurisdiction, which includes, among others, immunity from service, immunity from jurisdiction or immunity from judgment handed down by a court or tribunal, immunity from enforceable decisions and immunity from seizure preventive ”.
Finally, it adds: “The buyer, in his own name and in the Federal Republic of Brazil, accepts and also
agrees not to claim said immunity from any title in any process related to this agreement
.
The buyer, in his own name and in the Federal Republic of Brazil, expressly and irrevocably submits to the jurisdiction of the courts of New York, or any other competent court, in order to execute any decision, order or arbitration award, or any composition in connection with any arbitration ".
The mystery continues
When
Clarín
addressed the issue in his note on the Pfizer mystery, on March 25, he referred to the Peruvian case.
There he cited two senior officials from that country who said that the negotiations with the laboratory had been arduous, but that
they were finally able to reach an agreement
to purchase the vaccines, after the intervention of a law firm based in the United States.
Minister Carla Vizzotti continued to support the argument of the abusive clauses.
Photo: AFP
This article also shows that the change of presidency in Peru, right in the middle of the negotiations with Pfizer, were also decisive for the agreement to take place.
As of the inauguration of Francisco Sagasti
, the negotiations
that Martín Vizcarra had suspended
were resumed
.
The
political decision
played a fundamental role.
In Argentina, sources in the Chamber of Deputies linked to the ruling party told
Clarín
that the points of legal conflict that supposedly blocked the negotiation with Pfizer
would have room to be reviewed
.
However, in public statements, the Minister of Health, Carla Vizzotti, continued to feed the argument of the “abusive clauses”.
In the law approved by Argentina, there was
a list of sovereign assets that can
not be
seized
and it was not accepted that "negligence" would remain within the exceptions to a possible negligent liability of the laboratory.
The journalist Hugo Alconada Mon added another element to this story in an article published last weekend in La Nación.
It suggests that
two political issues
played a role in the conflict with Pfizer
: on the one hand, that then-Minister Ginés González García would have felt displaced in the negotiations, when President Alberto Fernández met with the CEO of Pfizer Argentina for the first time, without his presence;
Furthermore, it refers to an alleged “preference” by González García for
favoring the contract with AstraZeneca
, the vaccine manufactured in Argentina by businessman Hugo Sigman.
The leak of the contract that Pfizer signed with Brazil confirms that the laboratory
did not have a particular viciousness with Argentina
when negotiating.
There was supposed to be a local advantage because
the largest phase 3 trial
, with 6,000 participants,
had been conducted at the Central Military Hospital in Buenos Aires
for that vaccine to be approved.
However, all of that vanished into thin air to leave an opaque trail.
The same that now prevents deciphering the facts as they occurred.
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