The EU v UK vaccine tussle

[Camoradi]

Nickgnome said:

chrispmartha said:

Jordan210 said:

With Best Reasonable Efforts

Would breaking a contract with say the UK/others who signed up first be reasonable for AZ. If no then they did they Best Reasonable Efforts to supply the EU.

Wouldn't it depend on what's in the UK contract?

Nope contracts are exclusive.

Dates of signature are irrelevant.

One contract cannot bind a third party.

It seems that AZ may have over committed, albeit in good faith. Being held to account is not the same as blame.

The resolution has to be by negotiation.

The 'he said she said' thing gets nowhere.

Exactly. Even if the EU took AZ to court and won (in a couple of years from now), the vaccine wouldn't magically appear.

Their efforts would be better directed at doing everything they can to assist with the low yield issues at the EU plants, even if that just means butting out and letting AZ get on with it.

[crankedup]

vaud said:

crankedup said:

Yes we can still buy ‘wagon wheels’ bought some recently but they are more like mini minor wheels now.Either my hands have grown enormously or those wheels have shrunk.

Advice I was once given - always marry a woman with small hands.

[chrispmartha]

Camoradi said:

Their efforts would be better directed at doing everything they can to assist with the low yield issues at the EU plants, even if that just means butting out and letting AZ get on with it.

I agree with that

[paulrockliffe]

Stay in Bed Instead said:

anonymous said:

[redacted]

Isn't AZ using a 'first come first served' argument though?

No, they're saying the contracts and the supply chains to fulfil them are separate.

Clause 13 relates to the Initial Europe Doses, the UK has no contract in relation to those. The second part is saying at the time of signing there is no competing legal arrangement that would stop the fulfilment of the contract.

[Wombat3]

paulrockliffe said:

chrispmartha said:

Jordan210 said:

With Best Reasonable Efforts

Would breaking a contract with say the UK/others who signed up first be reasonable for AZ. If no then they did they Best Reasonable Efforts to supply the EU.

Wouldn't it depend on what's in the UK contract?

No, it would depend on what is normal for a company similar to AZ to do. It's basically saying you have to act normally, it's not much more than a 'don't be a dick' clause.

What's normal when you have several competing contracts? AZ say it's to setup internal supply chains dedicated to each contract and not let them interfere with each other. That only has to be a reasonable approach and I guess setup at the start rather than in response to a problem.

Anyway, read Clause 6.2 as it covers what happens if there's a shortfall, ie where we are now. Clause 13 is for the Lawyers in April.

Is that nor more referencing what happens if say Pfizer had bought up all of a particular ingredient (that AZ needed) in order to fulfill their contract with the EU?

[Nickgnome]

paulrockliffe said:

chrispmartha said:

Jordan210 said:

With Best Reasonable Efforts

Would breaking a contract with say the UK/others who signed up first be reasonable for AZ. If no then they did they Best Reasonable Efforts to supply the EU.

Wouldn't it depend on what's in the UK contract?

No, it would depend on what is normal for a company similar to AZ to do. It's basically saying you have to act normally, it's not much more than a 'don't be a dick' clause.

What's normal when you have several competing contracts? AZ say it's to setup internal supply chains dedicated to each contract and not let them interfere with each other. That only has to be a reasonable approach and I guess setup at the start rather than in response to a problem.

Anyway, read Clause 6.2 as it covers what happens if there's a shortfall, ie where we are now. Clause 13 is for the Lawyers in April.

Interesting Paul. Almost conflicts with 13e?

6.2. Capacity Limitations. In the event AstraZeneca's ability to fulfill its
obligations under this Agreement is impeded by a competing agreement entered into by
or on behalf of the Commission, AstraZeneca shall promptly inform the Commission.
While AstraZeneca shall continue to use Best Reasonable Efforts to engage with its
own contract manufacturers and suppliers to utilize the capacity and/or components, the
Commission will assist in finding a mutually acceptable solution for this Agreement
and the competing agreement. To the extent AstraZeneca’s performance under this
Agreement is impeded by any such competing agreements, AstraZeneca shall not be
deemed in breach of this Agreement as a result of any such delay due to the
aforementioned competing agreement(s).

[simion_levi]

paulrockliffe said:

Anyway, read Clause 6.2 as it covers what happens if there's a shortfall, ie where we are now. Clause 13 is for the Lawyers in April.

Note that is only for competing agreements entered into by the commission (or member states, Article 5). The UK agreement will not fall into either of those definitions.

[crankedup]

Stay in Bed Instead said:

paulrockliffe said:

As I understand it the EU only concluded preliminary talks over NovaVax very recently. They haven't ordered any. It's due to come on stream from the summer onwards. If things carry on the way they are heading it would be largely pointless them wasting time applying to the EMA for approval.

I just learned that the UK and the US have invested £30 per person on vaccine development and supply chain stuff. The EU £5. The UK has committed to the same number of vaccines as the whole EU. Looking at that the EU has very much sat back and let everyone else make it all happen.

Both UK and EU invested about £2bn each so far then.

U.K. population 65 million
EU population 330 million.

[spookly]

[b]6.2. Capacity Limitations. In the event AstraZeneca's ability to fulfill its
obligations under this Agreement is impeded by a competing agreement entered into by
or on behalf of the Commission, AstraZeneca shall promptly inform the Commission.
While AstraZeneca shall continue to use Best Reasonable Efforts to engage with its
own contract manufacturers and suppliers to utilize the capacity and/or components, the
Commission will assist in finding a mutually acceptable solution for this Agreement
and the competing agreement. To the extent AstraZeneca’s performance under this
Agreement is impeded by any such competing agreements, AstraZeneca shall not be
deemed in breach of this Agreement as a result of any such delay due to the
aforementioned competing agreement(s).[/b]

So.... the UK has a competing agreement.
Seems to me that AZ should continue to use best reasonable efforts to get things moving. Including looking at the possibility of using other contract manufacturing facilities.
The EC seem to have a responsibility to assist in finding a mutually acceptable solution.... not in dragging AZ's name through the mud and slinging this around in public for political point scoring and arse covering.

And the kicker. AZ should not be deemed in breach of the contract resulting from delays due to competing agreements. EC/EU doesn't seem to have a leg to stand on.

[Earthdweller]

[quote=Camoradi]

Exactly. Even if the EU took AZ to court and won (in a couple of years from now), the vaccine wouldn't magically appear.

Their efforts would be better directed at doing everything they can to assist with the low yield issues at the EU plants, even if that just means butting out at letting AZ get on with it.[ /quote]

Absolutely 100%

[Stay in Bed Instead]

paulrockliffe said:

No, they're saying the contracts and the supply chains to fulfil them are separate.

Clause 13 relates to the Initial Europe Doses, the UK has no contract in relation to those. The second part is saying at the time of signing there is no competing legal arrangement that would stop the fulfilment of the contract.

You may be correct, but it may also be interpreted that at that time AZ had no other contracts which would preclude delivery of the EU supply. If AZ is now prioritising the UK supply because their Agreement was before the EU's one it throws the undertaking into question.

[Wombat3]

spookly said:

6.2. Capacity Limitations. In the event AstraZeneca's ability to fulfill its
obligations under this Agreement is impeded by a competing agreement entered into by
or on behalf of the Commission, AstraZeneca shall promptly inform the Commission.
While AstraZeneca shall continue to use Best Reasonable Efforts to engage with its
own contract manufacturers and suppliers to utilize the capacity and/or components, the
Commission will assist in finding a mutually acceptable solution for this Agreement
and the competing agreement. To the extent AstraZeneca’s performance under this
Agreement is impeded by any such competing agreements, AstraZeneca shall not be
deemed in breach of this Agreement as a result of any such delay due to the
aforementioned competing agreement(s).

So.... the UK has a competing agreement.
Seems to me that AZ should continue to use best reasonable efforts to get things moving. Including looking at the possibility of using other contract manufacturing facilities.
The EC seem to have a responsibility to assist in finding a mutually acceptable solution.... not in dragging AZ's name through the mud and slinging this around in public for political point scoring and arse covering.

And the kicker. AZ should not be deemed in breach of the contract resulting from delays due to competing agreements. EC/EU doesn't seem to have a leg to stand on.

That is only for agreements entered into by the EU, not AZ

Edited by Wombat3 on Friday 29th January 12:13

[Stay in Bed Instead]

crankedup said:

U.K. population 65 million
EU population 330 million.

So?

[Stay in Bed Instead]

anonymous said:

[redacted]

The what?

[maffski]

chrispmartha said:

Electro1980 said:

If they are relying on that they are on a hiding to nothing. All that says to me is that AZ could supply from outside the EU should they need too and are able but will try to do it all in the EU. No way could any reasonable person take that as “we will fulfil your order using other factories if we have too regardless of other commitments”

I suppose the point is for the purposes of the contract when it was signed the UK is classed as part of the EU?

I don't know I'm not a contract lawyer

I think it simply says that when they refer to EU manufacture it should be read as EU and UK. I suspect it's main aim is to ensure there was no US manufacturing in the plan as Trump had already threatened to block exports of vaccine if necessary. There is a list of the factories they planned to use later in the contract, which includes those in the UK (Schedule A).

[paulrockliffe]

simion_levi said:

paulrockliffe said:

Anyway, read Clause 6.2 as it covers what happens if there's a shortfall, ie where we are now. Clause 13 is for the Lawyers in April.

Note that is only for competing agreements entered into by the commission (or member states, Article 5). The UK agreement will not fall into either of those definitions.

Yes, sorry I misread that clause as a two-way thing. It's only saying if Pfizer take all the ingredients AZ aren't on the hook.

Clause 5.1 though looks problematic - it says the Initial EU Doses are to come from the EU. It's only Clause 5.4 that includes the UK in that supply. That creates legal space within the contract for siloing of supply chains, even if you argue that's not covered by Best Reasonable Efforts.

5.1 also means there can't be a breach against a non-approved vaccine.

[Stu T]

"I'll add my two cents as a UK and EU qualified lawyer (not Belgian qualified so can't add any nuances there) after an initial read.

It's clear from Clauses 5.1 and 5.4 that the obligation to establish both the manufacturing facilities and then deliver the vaccines are "best reasonable efforts". This term is defined in the contract, but certainly is not strict liability. I.e. AZ just has to reasonably try it's best. I'll chalk that as a win for AZ.

Clause 5.4 does refer to AZ using best reasonable efforts to establish manufacturing facilities in both the EU AND UK. However, Clause 5.1 (which is the relevant provision regarding actually delivery of the vaccine doses), only refers to those doses being manufactured within the EU (and not UK). So basically there is no commitment for AZ to deliver any doses from outside the EU. I'll chalk that as a win for AZ too.

TLDR: contract looks bad for the Commission, not even sure what their arguments even are at this point. AZ's position seems like a slam dunk to me from an initial read.

Edit: corrected to remove reference to Clause 6.2 as people have rightly pointed out that refers to EU agreements"

from:

https://old.reddit.com/r/CoronavirusUK/comments/l7...

edit, added quotes to clarify that isn't my comment

[i4got]

I think the point we're missing is that it doesn't matter what the contract says to an extent.

The new export licensing process being announced today means that the EU have to believe that their contract has been fulfilled before allowing an export to take place.

So the EU can interpret the AZN contract any way they like in order to prevent any export. By the time it comes to legal steps its all too late.

[don'tbesilly]

i4got said:

I think the point we're missing is that it doesn't matter what the contract says to an extent.

The new export licensing process being announced today means that the EU have to believe that their contract has been fulfilled before allowing an export to take place.

So the EU can interpret the AZN contract any way they like in order to prevent any export. By the time it comes to legal steps its all too late.

Pretty much this.

The EU is planning on introducing export licenses for vaccines today.

The EU will just say their right, everyone else is wrong, and if AZ doesn't play ball, they'll enforce their export licence on Pfizer, forcing Pfizer to breach their contract with the UK.

[vikingaero]

Stu T said:

"I'll add my two cents as a UK and EU qualified lawyer (not Belgian qualified so can't add any nuances there) after an initial read.

It's clear from Clauses 5.1 and 5.4 that the obligation to establish both the manufacturing facilities and then deliver the vaccines are "best reasonable efforts". This term is defined in the contract, but certainly is not strict liability. I.e. AZ just has to reasonably try it's best. I'll chalk that as a win for AZ.

Clause 5.4 does refer to AZ using best reasonable efforts to establish manufacturing facilities in both the EU AND UK. However, Clause 5.1 (which is the relevant provision regarding actually delivery of the vaccine doses), only refers to those doses being manufactured within the EU (and not UK). So basically there is no commitment for AZ to deliver any doses from outside the EU. I'll chalk that as a win for AZ too.

TLDR: contract looks bad for the Commission, not even sure what their arguments even are at this point. AZ's position seems like a slam dunk to me from an initial read.

Edit: corrected to remove reference to Clause 6.2 as people have rightly pointed out that refers to EU agreements"

from:

https://old.reddit.com/r/CoronavirusUK/comments/l7...

edit, added quotes to clarify that isn't my comment

So does this explain the forceful rhetoric by many MEPs and leaders? We're screwed so let's use shouty politics.

Reading many of the comments by German MEPs etc, a lot of the language such as "we will not allow you to treat us as second class citizens" etc, is this a European trait that someone could explain.