Development of the private international law of intellectual property: the experience of international unification

In the conditions of internationalization and digitalization of the economy, business, society, and the State have steadily increasing needs for special legal regulation that takes into account the peculiarities of the interaction between the territoriality of intellectual rights and the freedom of movement of goods and services and that also reduces the risk of legal uncertainty and unpredictability arising from differences in national laws. One of the effective methods for meeting these needs is the international unification of private international law in the field of intellectual property. This article, based on comparative legal analysis, examines approaches to international unification of private international law of intellectual property that were developed during preparation of the International Code of Conduct on the Transfer of Technology under the auspices of UNCTAD, in conventions developed by the Hague Conference on Private International Law in the framework of the HCCH Judgement Project, as well as in documents of international regional unification. In addition, it analyzes the reasons preventing the achievement of consensus among States on the unification of conflict of laws and norms of international civil procedure in the field of intellectual property. In particular, attention is paid to differing approaches in the law of individual States to the grounds for and limits of the application of mandatory substantive legal norms of the country in respect to which protection is sought (lex loci protectionis) as to norms that regulate private law relations complicated by a foreign element in the field of intellectual property; qualify as norms of direct application and as provisions that are an element of public order; and influence freedom of contract, the limits of autonomy of the will of the parties, the arbitrability of disputes, and the right of the parties to choose a court. The article examines the experience of interstate universal and regional unification of rules on the law to be applied in matters of intellectual property rights and of rules on arbitrability, international jurisdiction, and recognition and enforcement of foreign judgments in civil and commercial disputes involving intellectual property rights. This experience is of interest in the further search for a compromise on these issues at the interstate level as well as in the development of national legislation on private international law.

About the author: Svetlana Krupko – Сandidate of Sciences (Ph.D.) in Law, Associate Professor, Senior Researcher Fellow, Institute of State and Law of the Russian Academy of Sciences, Arbitrator, International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation, Moscow, Russia.

Citation: Krupko S. (2023) Razvitie mezhdunarodnogo chastnogo prava v sfere intellektual’noy sobstvennosti: opyt mezhdunarodnoy unifikatsii [Development of the private international law of intellectual property: the experience of international unification]. Mezhdunarodnoe pravosudie, vol. 13, no. 2, pp. 92–114. (In Russian).

References