I am surprised why anyone is discussing who signed first, given that in the contract AstraZeneca warrants that:
"it is not under any obligation, contractual or otherwise, to any Person or third
party in respect of the Initial Europe Doses or that conflicts with or is inconsistent
in any material respect with the terms of this Agreement or that would impede the
complete fulfillment of its obligations under this Agreement;"
This ended up not being true, which was not totally unexpected.
AstraZeneca ends up in the bad position of choosing on which of their contracts their will fail, and they evidently chose to fail the EU's in its near totality for the next few months.
It pains me to see the cynicism in shielding behind "best effort" clauses (standard in any procurement under R&D) or in "who came first". It's a serious matter that warrants a cooler and more balanced solution that this.
There is text blacked out in the definition of Initial Europe Doses after "within the EU" that I'm curious about.
Also, the clause reads "AstraZeneca has committed to use Best Reasonable Efforts...to build capacity to manufacture 300 million Doses of the Vaccine...for distribution within the EU..." That's ambiguous with respect to distribution.
AstraZeneca are using Best Reasonable Efforts to build this manufacturing capacity. But they aren't under Best Reasonable Efforts obligations to use this capacity for the EU. (The definition of Best Reasonable Efforts overlooks distribution entirely.)
It's a shitty situation. Pain has to be allocated. But based on contract, versus loose notions of fairness, AstraZeneca is under no obligation to export British-made doses to the EU.
I'm also curious about what dates were agreed. Looking at the document, here's what they state regarding manufacturing and supply (emphasis mine):
"5. Manufacturing and Supply.
5.1. Initial Europe Doses. AstraZeneca shall use its Best Reasonable Efforts to manufacture the Initial Europe Doses within the EU for distribution, and to deliver to the Distribution Hubs, following EU marketing authorisation, as set forth more fully in Section 7.1. approximately [censored] 2020 [censored] Q1 2021, and (iii) the remainder of the Initial Europe Doses by the end of [censored]"
It looks like the EU expected to have the vaccine approved by the end of 2020 and delivered soon after that. Based on media reporting, it would appear that AZ notified the EU that it would not meet the first deadline, but did so with only a short notice (15 days according to some outlets?).
Without getting into speculation, one date that isn't censored is that which specifies when the "Additional Doses" would stop being offered at the agreed price: 1 July 2021:
"9.3.Additional Doses. AstraZeneca shall provide any agreed Additional Doses at Cost of Goods until 1 July 2021, unless AstraZeneca determines in good faith that the COVID-19 Pandemic has not ceased as of 1 July 2021, in which case AstraZeneca shall [censored]"
So, if the initial doses are delayed, then the optional doses are delayed after that, and then the additional doses are delayed after that, it would seem that the agreed prices would only apply for a small fraction of the additional doses that would've been expected, whatever seemed reasonable. It seems that any delays in the "Initial Doses" could have an effect on the rest of the contract agreement.
AZis only obliged to deliver to hubs in each member state. That's it, nothing else. Hubs have to take the delivery within 5 days of being notofied of that delivery. That's about it regarding actual deliveries. Pretty thin, especially compared to the 4 pages covering the order form.
"it is not under any obligation, contractual or otherwise, to any Person or third party in respect of the Initial Europe Doses or that conflicts with or is inconsistent in any material respect with the terms of this Agreement or that would impede the complete fulfillment of its obligations under this Agreement;"
This ended up not being true, which was not totally unexpected.
AstraZeneca ends up in the bad position of choosing on which of their contracts their will fail, and they evidently chose to fail the EU's in its near totality for the next few months.
It pains me to see the cynicism in shielding behind "best effort" clauses (standard in any procurement under R&D) or in "who came first". It's a serious matter that warrants a cooler and more balanced solution that this.