Naslov
Overriding Mandatory Provisions in IP Contracts

Autori
Kunda, Ivana

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, neobjavljeni rad, znanstveni

Skup
Journal of Private International Law Conference

Mjesto i datum
Milano, Italija, 14.04.2011. - 16.04.2011

Vrsta sudjelovanja
Predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
private international law, EU law, internationally mandatory rules, loi de police, intelectual property

Sažetak
Within the topic of comparative applicable law/choice of law, the proposed paper would examine the effects that the overriding mandatory rules have in the cases where parties concluded contracts regarding the intellectual property rights, either assignment or licensing contracts. It is well established that the principle of the country of protection (Schutzlandprinzips) is important in the field of law on intellectual property, just as it has been confirmed for the past decades that the contracts concerning the intellectual property rights may be subject to different law than the lex protectionis – often the law chosen by the parties and the law of the most closest connection (often concretised by means of the characteristic performance). The coexistence of these principles becomes the trigger for conflict between different private international law methods: the classical Savigny’s method of conflict-of-law rules, the method of overriding mandatory rules and the method of special substantive rules (règles matérielles ad hoc, règles substantiel, materielles Sonderrecht). The plurality of methods, as Batiffol would describe this phenomenon, requires very proficient approach to resolving the issue of what law is applicable and/or taken into consideration in concreto. This is the question of both theoretical and practical importance, especially when it comes to the effect that the overriding mandatory rules may have on the otherwise applicable law. The intellectual property laws of different countries, as well as the European Union intellectual property law, contain a number of rules which may be characterised as overriding mandatory. The rules on moral rights of the author are probably the most known examples due to relatively regular French case law. Nevertheless, identification of overriding mandatory rules is rarely a straightforward exercise (as is the case with one provision of German copyright law) ; it usually involves detailed analysis of the genuine purpose of the rule in the system of norms it belongs to. This is necessary in order to establish whether the purpose of the rule is legitimate from the perspective of the forum and whether the degree of mandatoriness of the rule is such as to require its effects to take place irrespective of the otherwise applicable law. Against this background, the paper would attempt to identify certain typical overriding mandatory rules in intellectual property laws of several countries and European Union instruments and explain the reasons for such legal characterisation by referring to the purposes these rules serve. Additionally, it would discuss the complex relationships among overriding mandatory rules in intellectual property laws and other private international law methods, with specific emphasis on the provisions in private international law statutes and instruments which address the overriding mandatory rules, as well as the situation when such provision is lacking. The described analysis would be as much as possible followed by examination of the available case law in the subject. The paper would also take account of the situation in which overriding mandatory rules are not part of the lex fori, but of the lex causae or a third country. Finally, the paper would attempt to make a critical assessment of the present situation and offer solutions to some of the issues.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

POVEZANOST RADA