This issue identifies provisions that describe the responsibilities and decision-making authorities of parties to an agreement, as well as dispute resolution procedures. Governance provisions are important in order to establish clear boundaries between the roles of each party and to describe any matters requiring joint decision-making input. These provisions often set out the framework for joint committees to oversee project progress and provide technical or strategic advice.

Questions to consider when developing governance provisions

• Do the parties govern the project through a joint steering committee (“JSC”)? If so, what are the parties expressly designated roles and responsibilities with respect to the JSC?
• Are there other committees, important governance bodies, or designated individual positions? What are the parties’ roles and responsibilities with respect to them?
• Are the parties required to meet in accordance with a defined schedule for decision-making and progress reporting activities?
• What are the resolution mechanisms for disputes related to the agreement?
• Are there any requirements for policies or procedures to manage potential conflicts of interest?
  

Example approaches found in the MAPGuide

• Do the parties govern the project through a joint steering committee (“JSC”)? If so, what are the parties expressly designated roles and responsibilities with respect to the JSC?
  • Many of the agreements in the MAPGuide provide for the establishment of joint bodies to oversee the project activities. These groups are often referred to as a Joint Steering Committee, or “JSC”. The composition of a JSC varies between agreements, but it is often comprised of an equal number of participants from each party, with one individual from each party having the right to vote on certain decisions. The decisions of a JSC are generally made by consensus.
  • The role and decision-making authority of a JSC is dependent on the purpose of the agreement, but often includes providing advice on development, manufacturing and/or commercialization plans, as well as regulatory matters.
  • In addition to a steering committee, some MAPGuide agreements also provide for a number of ‘sub-committees’ oversee specific aspects of the agreement, for example an IP committee to discuss the management of intellectual property generated under the agreement.

• Are there other committees, important governance bodies, or designated individual positions? What are the parties’ roles and responsibilities with respect to them?
  • Some agreements in the MAPGuide that include detailed technology transfer requirements specify who is responsible for the conduct and direction of each party’s employees whilst working at a manufacturing facility.
  • MAPGuide agreements related to collaborations between multiple academic institutions sometimes specify a lead party which is responsible for providing information to the other parties.

• Are the parties required to meet in accordance with a defined schedule for decision-making and progress reporting activities?
  • The meeting schedules set out in MAPGuide provisions related to roles and responsibilities range from ‘every two weeks’ to ‘quarterly’, with some agreements requiring only ‘regular’ or ‘ad hoc’ meetings.

• What are the resolution mechanisms for disputes related to the agreement?
  • Dispute resolution provisions included in the MAPGuide often require the parties to first attempt to resolve the dispute through good faith discussions, which may be escalated to the chief executive officers (or equivalent) of the parties.
  • In the event that a dispute cannot be resolved through good faith discussions, agreements generally state that the parties can pursue arbitration (or in some cases litigation) in accordance with the rules of a specified arbitrator or under the jurisdiction of a certain court.