International Licensing Agreements - Conflict of Laws Analysis
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| Year of publication | 2015 |
| Type | Appeared in Conference without Proceedings |
| MU Faculty or unit | |
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| Description | Due to internationalization of contracts relating to intellectual property rights, licensing agreements may raise issues concerning the law applicable. The complexity of such contracts, the trend of drafting very detailed texts of these contracts, incorporating standard terms and conditions, pose many challenges to the adoption, interpretation and application of private international law rules in this area. Moreover, the territorial nature of the intellectual property rights influences the scope of the law applicable. Least, but not last, the characterization of issues relevant to intellectual property rights as contractual or non-contractual (i.e. the law that governs the intellectual property right as such) is key to the determination of the law applicable. In addition, commercial activity, globalization and electronization has increased the use of intellectual property rights in different jurisdictions via multistate licenses. Simultaneously, the public interest and overriding mandatory provisions may be of great importance and significance. As briefly outlined above, this contribution will follow some of the most significant and intriguing issues: Characterization (classification) of certain aspects of the intellectual property rights connected to contractual relationships; and conflict of laws rules for contractual obligations, international licensing agreement in particular. The core of this contribution will be focused on the analysis of the Art. 3 (choice of law) and Art. 4 (law applicable in the absence of choice) of the Rome I Regulation, with regards to Art. 9 (overriding mandatory norms). The structure of rules and connecting factors in Art. 4 Paragraphs 1 – 4 will be of the utmost importance. The characterization and interpretation of „contract“, „services“, „characteristic performance“, „license“ etc. will be based (not only) on the case law of the Court of Justice of the EU, and some practical examples. Certain set of model provisions in this area, such as CLIP Principles, ALI Principles, will be discussed as well. The aim of this contribution is to establish, whether the conflict of laws rules in the Rome I Regulation guarantee legal predictability and certainty to determine law applicable for international licensing agreements, thus maintaining and developing an area of freedom, security and justice within the common market of the EU. |
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