what does Pfizer’s vaccine contract with Brazil say that Argentina did not want to sign

Pfizer’s contract with Argentina remains a real enigma, perhaps one of the most important since the start of the pandemic in our country. To explain why an agreement could not be reached, the government argued that the contract demanded by the pharmaceutical company had “Abusive clauses”.

However, as stated Bugle Two weeks ago, Brazil, Chile, Uruguay, Ecuador, Colombia and Peru concluded agreements. The leak, in the last hours, of the contract for which Brazil has signed 100 million doses allows to draw some conclusions on this subject.

The 66-page contract to which he had access Bugle, was signed on March 18. And there is a part that specifically refers to the two controversial points that were in conflict between the American laboratory and our country.

On the one hand, the question of compensation for supplier “negligence”; on the other hand, the way in which the buyer State must respond economically to the possibility of a lawsuit and what happens to it sovereign immunity.

These points can be found on pages 15 and 16 of the contract. And we can conclude that Brazil they didn’t ask him anything different of what they asked Argentina during the negotiations.

The difference is that Brazil has decided to sign a contract for over a billion dollars. Then, the two clauses in question are detailed, which were those which would have left the negotiations truncated in Argentina.

Limits of Liability

The first clause is the one that refers to “limits of liability”. There it is said that “under in no case will a party be responsible towards the other party or its affiliates, whether resulting from civil (including, without limitation, negligence), contractual or other liability, for any indirect, special, unforeseen, incidental or punitive damages, whether in connection with the contract, guarantee, civil liability, negligence, reprehensible liability or which arises from or in connection with this Agreement, the transactions contemplated herein or any breach of this 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 will suffer such loss or loss) “.

The text continues: “In no event will Pfizer be liable to the purchaser for any direct damage, except to the extent that direct damage are the result of a material breach of any representation or warranty, by Pfizer, under this agreement which directly and exclusively caused the damage. “

He continues: “In no event will Pfizer and its affiliates be liable to the purchaser (whether by reason of warranty, liability (including, but not limited to negligence), contract , reprehensible or other liability) of buyer’s liability to third parties, including but not limited to, by way of contribution, indemnity or any claim for which the buyer should indemnify Pfizer if any such claim was brought directly against Pfizer ”.

Waiver of sovereign immunity

On the other hand, there is the clause which refers to “waiver of sovereign immunity”. It is stated therein that “the buyer, for his own account and for the Brazilian State, express and irrevocable waiver to any right of immunity that it may have or acquire in the future (by means of sovereign immunity or any other form of immunity), including any right controlled by an organization, an autarchy, a central bank or a monetary authority in Brazil, in relation to any arbitration (…) or any other judicial process instituted to ratify or execute any decision, order or arbitral award ”.

And it specifies: “Whether in Brazil or in any other foreign jurisdiction, which includes, among other things, immunity from service, immunity from jurisdiction or immunity from judgment rendered by a court or tribunal, l ‘immunity from binding decisions and immunity from preventive seizure “.

Finally, he adds: “The buyer, in his own name and in the Federal Republic of Brazil, accepts and also you agree not to claim such immunity of any title in any proceeding relating to this agreement. Buyer, in its 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 court of competent jurisdiction, to enforce any decision, order or arbitration award, or any composition. in the context of any arbitration “.

The mystery continues

When Bugle raised the issue in his note on the Pfizer mystery of March 25, referring to the Peruvian case. There, he quoted two senior officials from that country who said negotiations with the lab had been tough, but that they were finally able to come to an agreement to acquire the vaccines, following the intervention of a law firm based in the United States.

This article also shows that the change of presidency in Peru, in the midst of negotiations with Pfizer, was also decisive in the realization of the agreement. From the hypothesis of Francisco Sagasti negotiations resumed that Martín Vizcarra had suspended. The political decision played a key role.

In Argentina, sources in the Chamber of Deputies linked to the ruling party said Bugle that the points of legal conflict which would have blocked negotiations with Pfizer would have room to be seen again. However, in public statements, the Minister of Health, Carla Vizzotti, continued to feed the argument of “unfair terms”.

In the law approved by Argentina, there was a list of sovereign assets that cannot be seized and it was not accepted that “negligence” fell within the exceptions to possible negligent liability of the laboratory.

Another element could be linked to this story. In an article published last weekend in La Nación, it is suggested that in the conflict with Pfizer, they played two political issues: on the one hand, that the then minister, Ginés González García, would have felt out of place in the negotiations, when President Alberto Fernández met for the first time the CEO of Pfizer Argentina, without his presence; In addition, the note also speaks of an alleged “preference” by González García for AstraZeneca, the vaccine manufactured in Argentina and packaged in Mexico and the United States.

The leak of the contract Pfizer signed with Brazil confirms that the laboratory had no particular nastiness with Argentina when negotiating. It was assumed that there was a local advantage because the Central Military Hospital of Buenos Aires had performed largest phase 3 trial, with 6,000 participants, so that this vaccine could be approved. However, all of this has vanished into thin air to leave an opaque trail. The same which now prevents us from deciphering the facts as they happened.

PS