We don't know whether the most recent response to this request contains information or not – if you are Mr T. Baker please sign in and let everyone know.

Pfizer vaccine provisional consent conditions information

Mr T. Baker made this Official Information request to Ministry of Health

This request has an unknown status. We're waiting for Mr T. Baker to read recent responses and update the status.

From: Mr T. Baker

Dear Ministry of Health,

Please provide all reports provided to date by Pfizer to satisfy
Comirnaty Provisional Consent conditions:

- "52) Provide any reports on the duration of efficacy and the requirement for booster doses within five working days of these being produced."

- "54) Provide any reports on efficacy including asymptomatic infection in
the vaccinated group, vaccine failure, immunogenicity, efficacy in population subgroups and results from post-marketing studies, within five working days of these being produced."

Yours faithfully,

Mr T. Baker

Link to this

From: OIA Requests


Attachment image001.png
7K Download


Kia ora,

 

Thank you for your request for official information received on 14 October
2021 for:

 

"Please provide all reports provided to date by Pfizer to satisfy
Comirnaty Provisional Consent conditions:

 

- "52) Provide any reports on the duration of efficacy and the requirement
for booster doses within five working days of these being produced."

 

- "54) Provide any reports on efficacy including asymptomatic infection in
the vaccinated group, vaccine failure, immunogenicity, efficacy in
population subgroups and results from post-marketing studies, within five
working days of these being produced."

 

The Ministry's reference number for your request is: H202114374.

 

As required under the Official Information Act 1982, the Ministry will
endeavour to respond to your request no later than 12 November 2021, being
20 working days after the day your request was received.

 

Due to the COVID-19 global pandemic response, the Ministry is experiencing
significantly higher volumes of queries and requests for information. If
we are unable to respond to your request within this time frame, we will
notify you of an extension of that time frame.

 

If you have any queries related to this request, please do not hesitate to
get in touch.

 

Ngā mihi

 

OIA Services

Government Services

Office of the Director-General

Ministry of Health

E: [1][email address]

 

show quoted sections

References

Visible links
1. mailto:[email address]

Link to this

From: OIA Requests


Attachment image002.jpg
2K Download

Attachment image003.jpg
1K Download


Tçnâ koe T Baker,

 

Thank you for your request under the Official Information Act 1982 (the
Act) on 14 October 2021 for information from Pfizer regarding Comirnaty
Provisional Consent conditions. Please find a response to your request
below.

 

“Please provide all reports provided to date by Pfizer to satisfy
Comirnaty Provisional Consent conditions:
"52) Provide any reports on the duration of efficacy and the requirement
for booster doses within five working days of these being produced."

 

The reports you seek regarding condition 52 are commercially sensitive. As
such this part of your request is withheld in full under section
9(2)(b)(ii) where its release would likely unreasonably prejudice the
commercial position of the person who supplied the information.

 

"54) Provide any reports on efficacy including asymptomatic infection in
the vaccinated group, vaccine failure, immunogenicity, efficacy in
population subgroups and results from post-marketing studies, within five
working days of these being produced."

The reports you seek regarding condition 54 do not exist. As such, this
part of your request is refused under section 18(e) of the Act.

 

Under section 28(3) of the Act, you have the right to ask the Ombudsman to
review any decisions made under this request. The Ombudsman may be
contacted by email at: [1][email address] or by calling 0800
802 602.

 

Nâku noa, nâ

 

Nick Allan

Manager

OIA Services Team

[2]www.health.govt.nz

[3]Ministry of Health information releases

[4]Unite against COVID-19

 

show quoted sections

References

Visible links
1. mailto:[email address]
2. http://www.health.govt.nz/
3. https://www.health.govt.nz/about-ministr...
4. https://covid19.govt.nz/

Link to this

Concerned left an annotation ()

PUBLIC CITIZEN Pfizer’s Power
2
ACKNOWLEDGMENTS
This report was written by Zain Rizvi, law and policy researcher in Public Citizen’s Access
to Medicines Program. It was edited by Peter Maybarduk, director of the Access to
Medicines Program, Rhoda Feng, editor in the Communications Program, Brook Baker,
Professor of Law at Northeastern University, and Zain Jinnah, an international lawyer.
Luz Marina Umbasia Bernal in the Access to Medicines Program also provided critical
input.
ABOUT PUBLIC CITIZEN
Public Citizen is a national non-profit organization with more than 500,000 members and
supporters. We represent consumer interests through lobbying, litigation, administrative
advocacy, research, and public education on a broad range of issues including consumer
rights in the marketplace, product safety, financial regulation, worker safety, safe and
affordable health care, campaign finance reform and government ethics, fair trade, climate
change, and corporate and government accountability.
Contact Public Citizen
Main Office
1600 20th Street NW
Washington, D.C. 20009
Phone: 202-588-1000
Capitol Hill
215 Pennsylvania Avenue SE, #3
Washington, D.C. 20003
Phone: 202-546-4996
Texas Office
309 E 11th Street, Suite 2
Austin, Texas 78701
Phone: 512 477-1155
For more information, please visit www.citizen.org.
PUBLIC CITIZEN Pfizer’s Power
3
TABLE OF CONTENTS
Introduction .......................................................................................................................4
Pfizer’s Power....................................................................................................................6
1. Pfizer Reserves the Right to Silence Governments. ..........................................6
2. Pfizer Controls Donations.....................................................................................7
3. Pfizer Secured an “IP Waiver” for Itself. ............................................................8
4. Private Arbitrators, not Public Courts, Decide Disputes in Secret. ................9
5. Pfizer Can Go After State Assets. ......................................................................10
6. Pfizer Calls the Shots on Key Decisions............................................................11
A Better Way....................................................................................................................12
PUBLIC CITIZEN Pfizer’s Power
4
INTRODUCTION
In February, Pfizer was accused of “bullying” governments in COVID vaccine
negotiations in a groundbreaking story by the Bureau of Investigative Journalism.1 A
government official at the time noted, “Five years in the future when these confidentiality
agreements are over you will learn what really happened in these negotiations.”2
Public Citizen has identified several unredacted Pfizer contracts that describe the outcome
of these negotiations. The contracts offer a rare glimpse into the power one
pharmaceutical corporation has gained to silence governments, throttle supply, shift risk
and maximize profits in the worst public health crisis in a century. We describe six
examples from around the world below.3
Table 1: Select Pfizer Contracts Reviewed4
Purchaser Date Type Doses Price Per Dose Total Cost
Albania Draft5 Draft Definitive Agreement 500,000 $12 $6 million
Brazil 03/15/216 Definitive Agreement 100 million $10 $1 billion
Colombia 02/02/217 Definitive Agreement 10 million $12 $120 million
Chile 12/01/208 Definitive Agreement
(Redacted)
10 million Redacted Redacted

1 Madlen Davies, Rosa Furneaux , Iván Ruiz, Jill Langlois, ‘Held to Ransom’: Pfizer Demands Governments
Gamble with State Assets to Secure Vaccine Deal, Bureau of Investigative Journalism (Feb 23 2021),
https://tinyurl.com/t2z39a63.
2
Id.
3 While there are similarities across the contracts, each agreement is unique. The specific examples outlined
below should not read as reflective of other contracts.
4
In several cases, governments signed additional deals with Pfizer. We reviewed select contracts that were
publicly available.
5 Albania-Pfizer Contract Draft, (“Albania Draft Contract”), (Jan. 6 2021)
https://www.documentcloud.org/documents/.... The final
provisions of the agreement may have differed from this draft. However, given similarities between this
draft and the other reviewed agreements, we believe the modifications, if any, were likely not substantial.
The contract was first leaked on Twitter, and then shared widely in the press.
6 Brazil-Pfizer Contract (“Brazil Contract”), (March 15 2021) https://aurores.org/wpcontent/uploads/20.... The contract was leaked online and later covered by The
Guardian in August. See e.g., https://tinyurl.com/yupsz2j4.
7 Colombia-Pfizer Contract (“Colombia Contract”), (Feb. 2 2021), https://www.nodal.am/wpcontent/uploads/2.... The contract was leaked in the Colombian Media in August.
https://tinyurl.com/4vswvrz4. It is currently referenced in the UNICEF Vaccine Market Dashboard.
8 Chile-Pfizer Contract (“Chile Contract”) (Dec. 1 2021), https://www.chiletransparente.cl/wpconte.... A Chilean transparency
initiative published a redacted version of the contract.
PUBLIC CITIZEN Pfizer’s Power
5
Dominican
Republic
10/29/209 Binding Term Sheet10 8 million $12 $96 million
European
Commission
11/20/2011 Custom Advance Purchase
Agreement
200 million $18.612 $3.7 billion
Peru 17/9/2013 Binding Term Sheet 10 million $12 $120 million
United States 21/07/2014 Custom Advance Purchase
Agreement (Redacted)
100 million $19.5 $1.95 billion
United
Kingdom
12/10/2015 Custom Advance Purchase
Agreement (Redacted)
30 million Redacted Redacted
Pfizer’s demands have generated outrage around the world, slowing purchase
agreements and even pushing back the delivery schedule of vaccines.16 If similar terms
are included as a condition to receive doses, they may threaten President Biden’s
commitment to donate 1 billion vaccine doses.17

High-income countries have enabled Pfizer’s power through a favorable system of
international intellectual property protection.18 High-income countries have an obligation
to rein in that monopoly power. The Biden administration, for example, can call on Pfizer
to renegotiate existing commitments and pursue a fairer approach in the future. The
administration can further rectify the power imbalance by sharing the vaccine recipe,
under the Defense Production Act, to allow multiple producers to expand vaccine

9 Dominican Republic-Pfizer Contract (“D.R. Contract”) (Oct. 29 2020), https://www.keionline.org/35485.
Knowledge Ecology International obtained the contract through a freedom of information law request.
10 The text was subject to the approval of the Dominican Republican National Congress, which reportedly
approved the text with no objections. Pfizer and AstraZeneca, The Game of Contracts with Small Print,
Dominican Today, https://tinyurl.com/yhasn7um.
11 European Commission-Pfizer Contract (“E.C. Contract”) (Nov. 20 2020), https://tinyurl.com/3bph89wy.
The Italian public broadcaster RAI published the EC Contract in April.
12 15.5 EUR.
13 Peru-Pfizer Contract (“Peru Contract”) (Sept. 17 2020), https://tinyurl.com/y2ap74xz. The Bureau of
Investigative Journalism published the contract.
14 United States-Pfizer Contract (“U.S. Contract”) (July 21 2020), https://tinyurl.com/4k5j7d5u. The contract is
available on the U.S. Department of Health and Human Services website.
15 United Kingdom-Pfizer Contract (“U.K Contract”) (Oct. 10 2020), https://tinyurl.com/45vt6vd5. This likely
is the definitive agreement that follows on from initial agreement announced in July. The contract is
available on the U.K government website.
16 Madlen Davies, Rosa Furneaux, Pfizer backs down over “unreasonable terms” in South Africa vaccine
deal (April 19 2021). https://tinyurl.com/tnys9u2c. (“He described how Pfizer’s late demand caused delays in
the discussions, which in turn put back the anticipated vaccine delivery dates.”). See also the impasse in
Philippines. Philippines receives side letter from Pfizer; WHO sees resolution of ‘impasse’ soon (Feb 23.
2021), https://tinyurl.com/3fs8z3cb (“The delivery of 117,000 Pfizer-BioNTech doses, initially expected in
mid-February, was delayed by concerns on indemnification.”).
17 White House, FACT SHEET: President Biden Announces Historic Vaccine Donation: Half a Billion Pfizer
Vaccines to the World’s Lowest-Income Nations (June 10 2021), https://tinyurl.com/he8bm9tk
18 Peter Drahos and John Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2007)
(tracing the role of Pfizer in advocating for a system of international patent protection).
PUBLIC CITIZEN Pfizer’s Power
6
supplies.19 It can also work to rapidly secure a broad waiver of intellectual property rules
(TRIPS waiver) at the World Trade Organization.20 A wartime response against the virus
demands nothing less.
PFIZER’S POWER
1. Pfizer Reserves the Right to Silence Governments.
In January, the Brazilian government complained that Pfizer was insisting on contractual
terms in negotiations that were “unfair and abusive.”21 The government pointed to five
terms that it found problematic, ranging from a sovereign immunity waiver on public
assets to a lack of penalties for Pfizer if deliveries were late. The Bureau of Investigative
Journalism soon published a scathing story on Pfizer’s vaccine negotiations.22
Less than two months later, the Brazilian government accepted a contract with Pfizer that
contains most of the same terms that the government once deemed unfair.23 Brazil waived
sovereign immunity; imposed no penalties on Pfizer for late deliveries; agreed to resolve
disputes under a secret private arbitration under the laws of New York; and broadly
indemnified Pfizer for civil claims.24
The contract also contains an additional term not included in other Latin American
agreements25 reviewed by Public Citizen: The Brazilian government is prohibited from
making “any public announcement concerning the existence, subject matter or terms of

19 Zain Rizvi, Jishian Ravinthiran, Amy Kapczynski, Sharing The Knowledge: How President Joe Biden Can
Use The Defense Production Act To End The Pandemic Worldwide, Health Affairs Blog (August 6, 2021),
https://www.healthaffairs.org/do/10.1377...
20 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).
21 Madlen Davies , Rosa Furneaux , Iván Ruiz , Jill Langlois, ‘Held to Ransom’: Pfizer Demands
Governments Gamble with State Assets to Secure Vaccine Deal, Bureau of Investigative Journalism (Feb 23
2021), https://tinyurl.com/t2z39a63.
22 Id.
23 One clause that appears to have changed is the number of doses supplied by Pfizer. It is also not clear
whether Brazil developed a foreign bank guarantee fund.
24 Brazil Contract, footnote 6, Article 9.4 (Waiver of Sovereign Immunity), pg. 45, Article 2.6 (Delivery
Delays), pg. 34, Article 9.4 (Waiver of Sovereign Immunity) pg. 45, Article 3.1 (Indemnification by
Purchaser), pg. 43, respectively.
25 The other Latin American contracts reviewed contain a more limited nondisclosure obligation. For
example, under the Colombia contract, neither Pfizer nor Colombia can “use the name, trade name, service
marks, trademarks, trade dress or logos of the other Party in publicity releases, advertising or any other
publication, without the other Party’s prior written consent in each instance.” This does not appear to
prohibit the government from talking about the contract, as long as it is not a “publicity release, advertising,
or any other publication.”
PUBLIC CITIZEN Pfizer’s Power
7
[the] Agreement” or commenting on its relationship with Pfizer without the prior written
consent of the company.26 Pfizer gained the power to silence Brazil.
Brazil is not alone. A similar nondisclosure provision is contained in the Pfizer contract
with the European Commission and the U.S. government.27 In those cases, however, the
obligation applies to both parties.
For example, neither Pfizer nor the U.S. government can make “any public announcement
concerning the existence, subject matter or terms of this Agreement, the transactions
contemplated by it, or the relationship between the Pfizer and the Government hereunder,
without the prior written consent of the other.”28 The contract contains some exceptions
for disclosures required by law. It is not clear from the public record whether Pfizer has
elected to prohibit the U.S. from making any statements thus far. The E.C. cannot include
in any announcement or disclosure the price per dose, the Q4 2020 volumes, or
information that would be material to Pfizer without the consent of Pfizer.29
2. Pfizer Controls Donations.
Pfizer tightly controls supply.30 The Brazilian government, for example, is restricted from
accepting Pfizer vaccine donations from other countries or buying Pfizer vaccines from
others without Pfizer’s permission.31 The Brazilian government also is restricted from

26 Brazil Contract, Article 12.3 (Publicity), pg. 32 (“Purchaser shall not make, or permit any person to make,
any public announcement concerning the existence, subject matter or terms of this Agreement, the wider
transactions contemplated by it, or the relationship between the Parties (except as required by Law, and
subject to the protections set forth in Section 10.1), without the prior written consent of Pfizer (such consent
not to be unreasonably withheld or delayed)”.
27 E.C. Contract, footnote 11, Article II.10 (Announcements and Publicity), pg. 36.
28 U.S. Contract, footnote 14, Article 11.11 (Announcements), pg. 25.
29 E.C. Contract, footnote 11, Article II.10 (Announcements and Publicity), pg. 36.
30 For example, Colombia is also required to distribute the vaccine only in its territory. Colombia Contract,
footnote 7, Article 4.6 (Diversion Issues), pg. 23 (“All Product delivered to Purchaser shall be: (a) stored
securely by Purchaser; and (b) distributed by Purchaser only in Colombia in a secure manner appropriate to
the transportation route and destination, in each case (a) and (b) to guard against and deter theft, diversion,
tampering, substitution (with, for example, counterfeits) resale or export out of Colombia, and to protect
and preserve the integrity and efficacy of the Product.”).
31 Brazil Contract, footnote 6, Article 2.1 (f) (Agreement to Supply), pg. 31 (“Purchaser, including any related
Person or any agents of Purchaser, covenants to exclusively obtain all of its supply of any Vaccine of Pfizer,
BioNTech or their respective Affiliates intended for the prevention of the human disease COVID-19
(including the Product) either (i) directly from Pfizer or from Pfizer through the COVAX Facility, or (ii) from
a Third Party, whether by donation, resale or otherwise, only if Purchaser has obtained Pfizer’s prior written
consent. Any breach of this Section 2.1(f) shall be deemed an uncurable material breach of this Agreement,
and Pfizer may immediately terminate this Agreement pursuant to Section 6.2. For clarity, nothing in this
Section 2.1(f) shall prevent Purchaser from purchasing competing vaccine products of any Third Party.”).
PUBLIC CITIZEN Pfizer’s Power
8
donating, distributing, exporting, or otherwise transporting the vaccine outside Brazil
without Pfizer’s permission.32
The consequences of noncompliance can be severe. If Brazil were to accept donated doses
without Pfizer’s permission, it would be considered an “uncurable material breach” of
their agreement, allowing Pfizer to immediately terminate the agreement.33 Upon
termination, Brazil would be required to pay the full price for any remaining contracted
doses.34
3. Pfizer Secured an “IP Waiver” for Itself.
The CEO of Pfizer, Albert Bourla, has emerged as a strident defender of intellectual
property in the pandemic. He called a voluntary World Health Organization effort to
share intellectual property to bolster vaccine production “nonsense” and “dangerous.”35

He said President Biden’s decision to back the TRIPS waiver on intellectual property was
“so wrong.”36 “IP, which is the blood of the private sector, is what brought a solution to
this pandemic and it is not a barrier right now,” claims Bourla.37
But, in several contracts, Pfizer seems to recognize the risk posed by intellectual property
to vaccine development, manufacturing, and sale. The contracts shift responsibility for
any intellectual property infringement that Pfizer might commit to the government
purchasers. As a result, under the contract, Pfizer can use anyone’s intellectual property
it pleases—largely without consequence.
At least four countries are required “to indemnify, defend and hold harmless Pfizer” from
and against any and all suits, claims, actions, demands, damages, costs, and expenses
related to vaccine intellectual property.38 For example, if another vaccine maker sued

32 Brazil Contract, footnote 6, Article 4.6 (Diversion Issues), pg. 38 (“Purchaser shall not directly or indirectly
resell, donate, distribute, export or otherwise transport the Product outside the Territory without Pfizer’s
prior written consent.”).
33 Brazil Contract, footnote 6, Article 2.1 (f) (Agreement to Supply), pg. 31.
34 Brazil Contract, footnote 6, Article 6.2 (Termination for Cause), pg. 27 (“In the event that this Agreement is
terminated by Pfizer under this Section 6.2, Purchaser shall pay within thirty (30) days of the date of notice
of termination of this Agreement the full Price for all Contracted Doses less amounts already paid to Pfizer
as of such date.”)
35 Ed Silverman, Pharma leaders shoot down WHO voluntary pool for patent rights on Covid-19 products,
STAT (May 28 2020), https://www.statnews.com/pharmalot/2020/...
36 U.S. Backs Waiver of Intellectual Property Protection for Covid-19 Vaccines, Wall Street Journal (May 6
2021), https://www.wsj.com/articles/u-s-backs-w...
vaccines-11620243518
37 WTO delays decision on waiver on COVID-19 drug, vaccine rights (Dec. 10 2020),
https://www.reuters.com/article/us-healt...
38 This extends to all civil claims, including adverse effects. That has been detailed elsewhere: Madlen
Davies, Rosa Furneaux , Iván Ruiz , Jill Langlois, ‘Held to Ransom’: Pfizer Demands Governments Gamble
PUBLIC CITIZEN Pfizer’s Power
9
Pfizer for patent infringement in Colombia, the contract requires the Colombian
government to foot the bill. At Pfizer’s request, Colombia is required to defend the
company (i.e., take control of legal proceedings.)39 Pfizer also explicitly says that it does
not guarantee that its product does not violate third-party IP, or that it needs additional
licenses.
Pfizer takes no responsibility in these contracts for its potential infringement of
intellectual property. In a sense, Pfizer has secured an IP waiver for itself. But
internationally, Pfizer is fighting similar efforts to waive IP barriers for all
manufacturers.40
4. Private Arbitrators, not Public Courts, Decide Disputes in Secret.
What happens if the United Kingdom cannot resolve a contractual dispute with Pfizer? A
secret panel of three private arbitrators—not a U.K court—is empowered under the
contract to make the final decision.41 The arbitration is conducted under the Rules of
Arbitration of the International Chamber of Commerce (ICC). Both parties are required to
keep everything secret:
The Parties agree to keep confidential the existence of the
arbitration, the arbitral proceedings, the submissions made
by the Parties and the decisions made by the arbitral
tribunal, including its awards, except as required by Law
and to the extent not already in the public domain.42
The Albania draft contract and Brazil, Chile, Colombia, Dominican Republic, and Peru
agreements require the governments to go further, with contractual disputes subject to
ICC arbitration applying New York law.43

with State Assets to Secure Vaccine Deal, Bureau of Investigative Journalism (Feb 23 2021),
https://tinyurl.com/t2z39a63.
39 Colombia Contract, footnote 7, Article 8.2 (Assumption of Defense), pg. 31.
40 Pfizer signed the letter opposing the TRIPS waiver sent to President Biden in March, for example. PhRMA
Letter Opposing TRIPS Waiver to President Biden (March 5 2021),
https://patentdocs.typepad.com/files/202...
41 U.K. Contract, footnote 15, Article 23 (Dispute Resolution) pg. 36. (“The arbitration award shall be final
and binding on the Parties, and the parties undertake to carry out any award without delay. Judgment upon
the award may be entered by any court having jurisdiction of the award or having jurisdiction over the
relevant party or its assets.”)
42 Id.
43 Article on Governing Law. Albania Draft Contract pg. 34, Brazil Contract pg. 45, Chile Contract pg. 29,
Colombia Contract pg. 43, DR Contract pg. 17, Peru Contract pg. 9.
PUBLIC CITIZEN Pfizer’s Power
10
While ICC arbitration involving states is not uncommon, disputes involving high-income
countries and/or pharmaceuticals appear to be relatively rare.44 In 2012, 80% of state
disputes were from Sub-Saharan Africa, Central and West Asia, and Central and Eastern
Europe.45 The most common state cases were about the construction and operation of
facilities.46 In 2020, 34 states were involved in ICC arbitrations.47 The nature of state
disputes is not clear, but only between 5 to 7% of all new ICC cases, including those solely
between private parties, were related to health and pharmaceuticals.48
Private arbitration reflects an imbalance of power. It allows pharmaceutical corporations
like Pfizer to bypass domestic legal processes. This consolidates corporate power and
undermines the rule of law.
5. Pfizer Can Go After State Assets.
The decisions reached by the secret arbitral panels described above can be enforced in
national courts.49 The doctrine of sovereign immunity can sometimes, however, protect
states from corporations seeking to enforce and execute arbitration awards.
Pfizer required Brazil, Chile, Colombia, the Dominican Republic, and Peru to waive
sovereign immunity.50 In the case of Brazil, Chile and Colombia, for example, the
government “expressly and irrevocably waives any right of immunity which either it or its
assets may have or acquire in the future” to enforce any arbitration award (emphasis

44 Our analysis is limited by a lack of transparency.
45 Arbitration Involving States and State Entities under the ICC Rules of Arbitration – Report of the ICC
Commission on Arbitration and ADR (2012), https://iccwbo.org/publication/arbitrati..., pg. 4.
46 Arbitration Involving States and State Entities under the ICC Rules of Arbitration – Report of the ICC
Commission on Arbitration and ADR (2012), https://iccwbo.org/publication/arbitrati..., pg. 4.
47 194 state-owned entities were also involved. ICC Dispute Resolution 2020 Statistics,
https://iccwbo.org/publication/icc-dispu... pg. 11. See also, an analogous
mechanism known as investor-state dispute resolution, which is based on international law as opposed to
contract: Global Trade Watch, Table of Foreign Investor-State Cases and Claims Under NAFTA and Other
U.S. “Trade Deals” (Jan. 15 2021), https://www.citizen.org/article/table-of...
48 ICC Dispute Resolution 2020 Statistics, https://iccwbo.org/publication/icc-dispu... pg. 17.
49 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York,
10 June 1958) (“Each Contracting State shall recognize arbitral awards as binding and enforce them in
accordance with the rules of procedure of the territory where the award is relied upon, under the conditions
laid down in the following articles.”)
50 Article on Waiver of Sovereign Immunity. The language differs in some of the contracts. Brazil Contract,
pg. 45, Chile Contract pg. 24, Colombia Contract pg. 36, DR Contract pg. 17, Peru Contract pg. 9.
PUBLIC CITIZEN Pfizer’s Power
11
added).51 For Brazil, Chile, Colombia, and the Dominican Republic, this includes
“immunity against precautionary seizure of any of its assets.”52
Arbitral award enforcement presents complex questions of law that depend on the
physical location and type of state asset.53 But the contract allows Pfizer to request that
courts use state assets as a guarantee that Pfizer will be paid an arbitral award and/or use
the assets to compensate Pfizer if the government does not pay.54 For example, in U.S.
courts, these assets could include foreign bank accounts, foreign investments, and foreign
commercial property, including the assets of state-owned enterprises like airlines and oil
companies.55
6. Pfizer Calls the Shots on Key Decisions.
What happens if there are vaccine supply shortages? In the Albania draft contract and the
Brazil and Colombia agreement, Pfizer will decide adjustments to the delivery schedule
based on principles the corporation will decide. Albania, Brazil, and Colombia “shall be
deemed to agree to any revision.”56
Some governments have pushed back on Pfizer’s unilateral authority for other decisions.
In South Africa, Pfizer wanted to have the “sole discretion to determine additional terms
and guarantees for us to fulfill the indemnity obligations.”57 South Africa deemed this “too
risky” and a “potential risk to [their] assets and fiscus.”58 After delays, Pfizer reportedly
conceded to remove this “problematic term.”59

51 Id.
52 Id.
53 In the U.S., the governing statute is the Foreign Sovereign Immunities Act (FSIA). 28 U.S.C § 1602.
Sovereign property used for commercial activity can be used to execute a judgment based on an arbitral
award if the state has waived immunity. Property belonging to an instrumentality of a foreign state engaged
in commercial activity can also be used. 28 U.S.C § 1610. However, certain kinds of foreign sovereign
property are absolutely immune from award attachment and execution. This includes property belonging to
the foreign central bank or monetary authority and property used for military purposes. 28 U.S.C §1611.
54 Under FSIA, this is known as “attachment prior to the entry of judgment” and can be done if the state
waives this kind of immunity and “the purpose of the attachment is to secure satisfaction of a judgment that
has been or may ultimately be entered against the foreign state.” 28 U.S.C § 1610
55 Other jurisdictions may handle these questions differently, potentially exposing other types of sovereign
assets. These assets may also be vulnerable in settlement negotiations.
56 Albania Draft Contract, pg. 14. Brazil Contract, pg. 22. Colombia Contract, pg. 15.
57 Pfizer Backs Down Over Unreasonable Terms in South Africa Vaccine Deal (April 19 2021),
https://www.thebureauinvestigates.com/st....
58 Id.
59 Id.
PUBLIC CITIZEN Pfizer’s Power
12
But others have not been as successful. As a condition to entering into the agreement, the
Colombian government is required to “demonstrate, in a manner satisfactory to Suppliers,
that Suppliers and their affiliates will have adequate protection, as determined in
Suppliers’ sole discretion” (emphasis added) from liability claims.60 Colombia is required to
certify to Pfizer the value of the contingent obligations (i.e., potential future liability), and
to start appropriating funds to cover the contingent obligations, according to a
contribution program.61
Pfizer’s ability to control key decisions reflects the power imbalance in vaccine
negotiations. Under the vast majority of contracts, Pfizer’s interests come first.
A BETTER WAY
Pfizer’s dominance over sovereign countries poses fundamental challenges to the
pandemic response. Governments can push back. The U.S. government, in particular, can
exercise the leverage it holds over Pfizer to require a better approach. Empowering
multiple manufacturers to produce the vaccine via technology transfer and a TRIPS
waiver can rein in Pfizer’s power. Public health should come first.

60 Colombia Contract, footnote 7, Article 8.5 (Privileges and Immunities), pg. 32. This includes but is not
limited to funding state contractual contingency funds.
61 Id.
PUBLIC CITIZEN Pfizer’s Power

Link to this

We don't know whether the most recent response to this request contains information or not – if you are Mr T. Baker please sign in and let everyone know.

Things to do with this request

Anyone:
Ministry of Health only: