Comment by mrtksn | Hacker News Reader

Comment by mrtksn | Hacker News Reader

5.4.

manufacturing sites. AstraZeneca shall use its Best Reasonable Efforts to manufacture the Vaccine at manufacturing sites located within EU(which, for the purpose of this Section 5.4 only shall include the United Kingodm) and may manufacture the Vaccine in non-EU facilities if appropriate, to accelerate supply of the Vaccine in Europe; provided, that AstraZeneca shall provide prior written notice of such non-EU manufacturing facilities to the Commission which shall include an explanation for such determination to use non-EU manufacturing facilities. If AstraZeneca is unable to deliver on its intention to manufacture the Initial Europe Doses and/or Optional Doses under this Agreement in the EU, the Commission or the Participating Member States may present to AstraZeneca, CMOs within the EU capable of manufacturing the Vaccine Doses, and AstraZeneca shall use its Best Reasonable Efforts to contract with such proposed CMOs to increase the available manufacturing capacity within the EU. The manufacturing site planning is set out in Schedule A.

Probably needs a lawyer specialised in this stuff and the jurisdiction where the contract is signed, but it seems like this is the part that EU says the contract included the UK facilities.

Anyway, whatever happens people of Europe wont forget this, even if it was purely EU's fault. You don't say you belong to a team, omit the vaccines of China and Russia and then be let to die off because the rest of the team says you should have signed better contract. Next time something important comes up, EU should think beyond the UK/USA.

It’s mind boggling to me that “best reasonable effort” made it in there multiple times. That’s so vague and up to interpretation, who can blame them that they sold the supplies for 3x as much to another country?

Anything can be construed as “best reasonable effort” - or is this specific legalese I’m unaware off?

IANAL but I think it qualifies as legalese you're unaware of.

Also, just by definition, whatever the lawyers agreed on is likely appropriate in a legal context and a layman's criticism of the language is almost invariably because they're missing the knowledge. Imagine said lawyer reading your code and challenging you on your API design.

Anyway, if challenged in court, AZ would have to demonstrate that they actually made genuine efforts before going down a different path.

The addition of the word "reasonable" is because they need an out in case they feel they've spent a decent amount of efforts. Whether that amount was actually decent or not is for the judge to decide.

Isn't it obvious that the "best effort" is not fulfilled if you you manage to produce 6 hamburgers to UK and one to EU when you specifically said in the contract that your facilities in the EU and UK are to be used?

The official statement from AstraZeneca's CEO is that they have a fully operational production in the UK and are still resolving production issues in the EU sites.

From his explanation the EU signed their contract with a 3 month delay from the UK contract. Arguing that he is being accused of EU production issues on sites that have not had the 3 month lead time that the UK sites had to resolve any production issues.

You can argue that the UK production output could potentially be distributed proportionally for worldwide demand but to me the real question is why isn't anyone in the media or in the European Commission asking questions on why did it take 3 months to draft such a bland generic urgent supply contract?

I am sure the truth is probably somewhere in between but to me it seems the EC is playing the media game and trying to through AstraZeneca under a bus to cover for their own ineptitude in such a clutch time.

It's specifically stated in the contract that the UK facilities are covered. It's literally written in plain English, like you can read it from the document(the black markings on the white background). The continental facilities not getting online is irrelevant.

We can agree that indeed this should be demanded.

However, I ask again, why is no media outlet questioning our representatives about why they burned 3 months of people dying, to then come up with essentially the same terms as the unilateral contracts that the Dutch and the French were initially drafting?

This isn't a contract to squeeze the best deal out of AZN, it is an emergency purchase, what was there to negotiate?

AFAIK this is not correct, they negotiated on stuff like liability. Not price.

For 3 whole months though? This isn't a 20 year down the line trade agreement it's a medical emergency.

I don't think that it has anything to do with deliveries. They were not shipping vaccines when EU was negotiating the liability stuff. Instead, they put it on the contract that both UK and EU facilities are to be used and no other contracts to prevent EU's deliveries.

Would "best reasonable efforts" generally include breaking of stronger worded contacts signed earlier? The UK contract was more along the lines of "you can partner with Oxford to get their IP and we'll help set up production lines on the condition we get first refusal of vaccines from those lines"

why isn't anyone in the media or in the European Commission asking questions on why did it take 3 months to draft such a bland generic urgent supply contract?

It's worse than that. The contract they finally signed was an almost carbon copy of one prepared by Germany, Netherlands and Italy 3 months earlier, before the EU stepped in to take over and "expedite" matters.

Source?

https://www.itv.com/news/2021-01-26/covid-vaccine-what-is-th...

That source needs sources.

the dated letter from the member states health ministers to the commission "asking" it to take over the negotiatons has been floating around the internet

And it is a bad contract at that.

Even if AstraZeneca gets away with it legally, they will be a leper to the EU and be crushed in whatever other medicine negotiations they end up having with the EU or its constituent national governments. Burning the goodwill that gets you access to a relatively rich 450 million consumers market is pretty boneheaded.

I am not sure why this is downvoted. The EU is a very large market and if the EU feels like it is badly treated, they have a lot of options to make AstraZeneca's life miserable. Anything from stronger regulation of medicine pricing to relinquishing patents. In fact, the president of the EU, Charles Michel has already hinted at invoking Article 122 of the Treaty on the Functioning of the European Union, which could force vaccine-makers to share their patents [1].

I think first it remains to be seen if AstraZeneca did something problematic. But if that is the case, one can be sure there will be political repercussions. Though I think that they are now just using the threat of repercussions to force AstraZeneca to change their policies. If they do so, this will be the first big test for the new relation between the EU and Brittain and AstraZeneca will be in the middle of it.

[1] https://www.politico.eu/article/charles-michel-says-eu-could...

> In fact, the president of the EU, Charles Michel has already hinted at invoking Article 122 of the Treaty on the Functioning of the European Union, which could force vaccine-makers to share their patents

In my opinion they should, This is no time to play silly games regarding contract law. Vaccines should be produced as quickly as possible by as many capable facilities as possible.

Let's also not forget that most of the developing world is dead last in receiving vaccines, and greatly increasing production could prevent the death of countless lives.

to be blunt: after the past few days I don't think anyone in the UK gives a damn about the relationship with the EU

talk about a unifying force

The market for the vaccine is two doses per adult per year for the entire planet. If we call it a market at all. Lots of countries need help, the EU countries should be low on the list of places requiring international aid.

But EU had months of negotiations to save a buck on a vaccine which if delayed causes far more economic damage on a daily basis.

There is a definition in the document:

1.9. “Best Reasonable Efforts” means

(a) in the case of AstraZeneca, the activities and degree of effort that a company of similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialization having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact, across the world but taking into account efficacy and safety; and

(b) in the case of the Commission and the Participating Member States, the activities and degree of effort that governments would undertake or use in supporting their contractor in the development of the Vaccine having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact, across the world.

The fundamental problem is that AstraZeneca has conflicting contracts with the UK and the EU.

AstraZeneca, which apparently has no experience with maki vaccines, has messed up every part of their job. Starting with the trials (which is why the EU delayed the emergency authorization and the US hasn’t given it yet) continuing with manufacturing, and apparently now it’s becoming evident their legal department has screwed up as well.

'Best reasonable effort' is defined for both parties elsewhere in the contract, but it's still very open to interpretation

I only have ever seen "best reasonable effort" in the ontext of recovering from sitations where contractual obligations aren't met. my understanding, and how it was applied, is that these situation are impossible to predict, thus the rather ominous wording.

How is one country paying 3x as much when AstraZeneca still has an obligation to produce more or less at cost? (https://www.ft.com/content/e359159b-105c-407e-b1be-0c7a1ddb6...)

Actually, it's specifically defined in one of the appendices.

I think it's not really the UK's fault.

It's AstraZeneca. They are frauds.

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