A significant technology gap exists between developed and developing countries. Though developing countries have started to self-innovate, they do not possess adequate means to fulfill their right to develop, which the UN recognizes as an essential human right. For developing countries to exercise this right, developed countries must transfer technology. Humanitarian engineers have confronted this challenge without any international guidance or regulation, as no uniform system for international technology transfer agreements exists. To remedy this inadequacy, scholars have proposed the characteristic approach, which suggests that the contents of the contract, rather than the parties’ locations, should control the choice of law. This proposal, however, fails to consider unintended, harmful consequences on developing countries. This Note analyzes the characteristic approach through a case study of humanitarian engineers in Kenya, a country held back by a lack of infrastructure while standing on the cusp of innovation. The characteristic approach does not present a viable solution for Kenya because it favors the law of developed countries too often. Instead, technology transfer agreements should stipulate that the developing country’s law should govern the agreement. Further, when this results in an insurmountable burden on the transferor, a developed country’s law should only control if the contract adheres to the policies of Africa’s regional economic communities. In the case of humanitarian engineers, academic institutions and international organizations focused on humanitarian engineering have an ethical burden to enforce this standard.
Sean P. McGinley, I Wanna Design for Somebody (Who Needs Me): The Intersection of Humanitarian Engineering, Choice-of-Law, and Technology Transfer in Kenya, 59 B.C. L. Rev. 2983 (2018), https://lawdigitalcommons.bc.edu/bclr/vol59/iss8/18