Special Rules Of Private International Law For Special Cases: What Should We Do About Intellectual Property?

Abstract

Abstract At the moment, one of the most problematic areas of private international law is that of jurisdiction Ill intellectual property cases where a claim for infringement of a right raises the issue of the validity of that right. The question of how juridicrional rule operate in such ca es has arisen in the context of the Brmsels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, now the Brussels I Regulation, and is now taxing minds at the Hague Conference on private international law during discussion of thc’ Hague Judgments Convention. The problrn1 that arises in both contexts is, in general terms, one of the interaction of different base of jurisdiction. Mure particularly, under the Brussels I Regulation the problem is one of the interaction of the special rule for intellectual property cases raising the issue of validity of a patent, etc, which allocates exclusive jurisdiction to the Member State where the right was registered, and other bases of jurisdiction Which are of more general application, in particular the basis of jurisdiction that a plaintiff can rely upon in a tort case. As far as the Hague Judgments Convention is concerned, the problem is more fundamental and raises the question of whether there should be any special rule of exclusive jurisdiction in intellectual property cases and, if so, how wide its scope should be, bearing in mind that the wider it is the more it cuts across other bases of jurisdiction, including the rule dealing with jurisdiction in tort.