Chapter Ⅰ:Introduction 1
Ⅰ.Premise 1
1.Exclusive Jurisdiction in Intellectual Property Rights Cases between Public and Private International Law 1
2.What is Included in Exclusive Jurisdiction Rules and what is not.Exclusive Jurisdiction and Subject Matter Jurisdiction 10
3.Peculiarities Related to the Analysis of the Lucasfilm and Gallo Cases,and a Brief Mention of Apple's and Samsung's still Unsettled Patent War around the Globe 16
4.Uniform European Union Patent and Unified Patent Litigation System:Where do we Stand? 19
5.Terminology:Private International Law (PIL);Brussels System;Court of Justice of the European Union (ECJ);Exclusive Jurisdiction;Intellectual Property;Traditional Knowledge (TK),Genetic Resources (GR) and Folklore (F);Intangible Cultural Heritage (ICH);Registered and Unregistered Intellectual Property Rights (IPRs);State Granting an IPR;International Conventions on IP;Four Academic Sets of Principles;International Law Association Committee;the Hague Preliminary Draft;Validity Claims Principally and Incidentally Raised;Infringement Proceedings;Duplicated Proceedings;Misappropriation and Protection;Judgments;Rendering State and Requested Country;Courts 27
6.Internet and Geolocation Tools 40
Ⅱ.Theses Purporting that Comity,The Act of State Doctrine and The Territoriality Principle Establish Implicit Exclusive Jurisdiction Rules 42
7.The US Court of Appeals for the Federal Circuit Voda Judgment and the UK Court of Appeal Lucasfilm Decision 42
8.The ECJ GAT Decision 45
Ⅲ.Exclusive Jurisdiction Rules are not Established either by Comity or by the Act of State Doctrine and the Territoriality Principle,but rather are Contrary to the Public International Law Rules on the Right of Access to Courts 48
9.The Subject Matter and the Plan of this Research:Arguments Against Comity and the Act of State Doctrine,as well as Against the Territoriality Principle.The Human Right of Access to a Court 48
10.Arguments Against the Other Rationales in Support of Exclusive Jurisdiction Rules:Foreign Immovable Property,Local Actions,the Mocambique Rule and Article 22(1) of the Brussels System;Double Actionability Rule;the Sound Administration of Justice and the Judicial Economy;the Best Placed Courts;the Difficulties of Applying Foreign Laws;Non-Recognition and NonEnforcement of Judgments on Foreign IPRs;the Amendment of Registers;Forum Non Conveniens 49
11.Conclusions.Exclusive Jurisdiction Rules Shall be Abandoned in Benefit not only to IPRs Owners,but also to those with the Potential to Infringe IPRs:Referral 50
12.Delimitation of this Research:Overprotection of IPRs;Contracts;General Jurisdiction;Infringement Jurisdiction;Jurisdiction for Provisional Measures;Prorogation of Jurisdiction;Objective or Subjective Consolidation of Claims;Lis Pendens',Arbitrability and Judicial Settlements;Allocation of Jurisdiction in Purely Domestic Cases 50
Chapter Ⅱ:Comparison.Exclusive Jurisdiction Rules do not Express a Customary International Law Rule.The New Trend to Abandon them 55
Ⅰ.Aims,Delimitation and Terminology of the Comparison 55
13.First Aim:Exclusive Jurisdiction Rules are not Expressions of Customary International Law Rule 55
14.Second Aim:Existing Trend in Favour of the Abandoning of Exclusive Jurisdiction Rules 60
15.Delimitation,Plan and Terminology of the Comparison 61
Ⅱ.The Almost Universal Absence of Exclusive Jurisdiction Rules for Unregistered IPRs both with Respect to Infringement Issues and Validity Claims,whether Principally or Incidentally Raised 62
16.The Almost Universal Absence of Exclusive Jurisdiction Rules in International Instruments,as well as in EU and EFTA Norms,in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles 62
17.The Very Limited Presence of Exclusive Jurisdiction Rules in South Africa and in India 69
Ⅲ.The Almost Universal Absence of Exclusive Jurisdiction Rules for Registered IPRs Pure Infringement Claims,However Raised 69
18.The Almost Universal Absence of Exclusive Jurisdiction Rules in International Instruments,as well as in EU and EFTA Norms,in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles 69
19.The Very Limited Presence of Exclusive Jurisdiction Rules in Certain Common Law Countries and in India 76
Ⅳ.The Prevailing Absence of Exclusive Jurisdiction Rules for Registered IPRs Validity Issues Incidentally Raised 77
20.The Prevailing Absence of Exclusive Jurisdiction Rules in International Instruments and the Mitigation of the Scope of the Exclusive Jurisdiction Rules of the EU/EFTA Brussels System 77
21.The Prevailing Absence of Exclusive Jurisdiction Rules in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles 87
22.The Presence of Exclusive Jurisdiction Rules in the Brussels System,albeit with Mitigated Scope.The Limited Presence of Exclusive Jurisdiction Rules in Certain Common Law Countries and in India 89
Ⅴ.The Emerging Rejection of Exclusive Jurisdiction Rules for Registered IPRs Validity Issues Principally Raised 90
23.The Emerging Rejection of Exclusive Jurisdiction Rules 90
24.The Exclusive Jurisdiction Rules in EU/EFTA Norms as well as in the National Statutory or Case-law Rules 96
Ⅵ.Conclusions 97
25.The Exclusive Jurisdiction Rules Related to Unregistered IPRs Pure Infringement Claims and Validity Claims however Raised,as well as Registered IPRs Pure Infringement Claims and Validity Claims Incidentally Raised,are not an Expression of a Customary International Law Rule 97
26.The Exclusive Jurisdiction Rules related to Registered IPRs Validity Issues Principally Raised are not an Expression of Customary Law 98
Chapter Ⅲ:The Act of State Doctrine and Comity do not Mandate Exclusive Jurisdiction Rules 100
Ⅰ.Introduction 100
27.Reasons for Addressing the Act of State Doctrine and Comity in this Same Chapter 100
28.Reasons for Primarily addressing Common Law Jurisprudence 101
29.The Act of State and Comity Doctrines as "Suggested" by Public International Law 102
Ⅱ.Theses According to which the Act of State Doctrine Implicitly Poses Exclusive Jurisdiction Rules 102
30.Theses According to which the Act of State Doctrine Establishes Implicit Exclusive Jurisdiction Rules:the Voda and the ECJ GAT Decisions 102
31.Other Relevant Judgments 104
32.The Inapplicability of the Act of State to Unregistered IPRs 107
Ⅲ.The Act of State Doctrine Does not Pose Exclusive Jurisdiction Rules 108
33.The Act of State Doctrine Does not Prevent Courts from Adjudicating Foreign Acts of States 108
34.IPRs are not an Expression of the Sovereignty of Foreign Governments 114
35.Relevant Judgments 117
Ⅳ.Theses According to which Comity Implicitly Poses Exclusive Jurisdiction Rules 120
36.Theses According to which Comity Establishes Implicit Exclusive Jurisdiction Rules:the Voda and the UK Court of Appeal's Lucasfilm Judgments 120
37.Other Relevant Judgments 123
38.The Applicability of Comity to Unregistered IPRs 126
Ⅴ.Comity does not pose Exclusive Jurisdiction Rules 128
39.Assuming Jurisdiction over Foreign IPRs Claims is Imposed by Public International Law,Referral 128
40.Assuming Jurisdiction over Foreign IPRs Claims does not Prejudice the Rights of Foreign Governments 129
41.Assuming Jurisdiction over Foreign IPRs Claims Corresponds to the Citizens' Interests 131
Ⅵ.The Act of State Doctrine and Comity are Contrary to Public International Law 132
42.The Act of State and Comity are not Suggested by Public International Law 132
43.The Act of State and Comity are even Contrary to the Public International Law Rules on the Avoidance of a Denial of Justice and on the Right of Access to a Court 135
Chapter Ⅳ:The Territoriality Principle does not Mandate Exclusive Jurisdiction Rules 137
Ⅰ.Territoriality and Universality 137
44.Territoriality and Universality in Public International Law 137
45.Territoriality and Universality in Relation to IPRs 138
Ⅱ.Territorial and Universal IPRs Protection Outside the IP Systems 148
46.The Territoriality Principle as an Obstacle to the Universal Protection of IPRs.Thesis Proposing to Achieve that Universal Protection throughout International Legal Systems other than that which is Established for IP.The Relevance of these Theses for Present Purposes 148
47.Crimes of Piracy,Cyberattacks and Biopiracy 150
48.Human Rights to Intellectual Property 153
49.UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects 158
Ⅲ.Territorial and Universal IPRs Protection Inside the IP Systems 160
50.Theses According to which the Territoriality Principle Establishes Implicit Exclusive Jurisdiction Rules:the Voda,the UK Court of Appeal's Lucasfilm and the Gallo Judgments,Referral 160
51.The Territoriality Principle in the CUP,CUB,and TRIPs Agreement does not Pose Exclusive Jurisdiction Rules 161
52.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement Poses Exclusive Jurisdiction Rules 161
53.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement Impedes the Courts Seised from Adopting PIL Rules 170
54.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement has only a Substantive Nature 172
55.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement has a PIL Nature and Always Prescribes the Application of the Lex Loci Protections 173
56.The Territoriality Principle in other Relevant Norms Expressly Shaped as PIL Rules 176
57.Non-acceptability of the Opinion that the Territoriality Principle in Rules other than the CUP,CUB,and TRIPs Agreement does not Impose the Application of a Foreign Law 178
58.Non-acceptability of the Opinion that the Territoriality Principle in Rules other than the CUP,CUB,and TRIPs Agreement has only a Substantive Nature 179
Ⅳ.Thesis Here Purported:the Territoriality Principle as an Expression of the Proximity Principle 180
59.Opinions Already Emphasizing the Connection between the Territoriality Principle and Proximity Reasons in IPRs Cases 180
60.Lagarde's Thesis on the Proximity Principle 182
61.Extension to IPRs of Lagarde's Thesis on the Proximity Principle 186
62.First Group of PIL Provisions Deviating from the Territoriality Princile:Rules that Adopt Jurisdiction Criteria which are not Based on the Territoriality Principle 188
63.Second Group of PIL Provisions Deviating from the Territoriality Principle:Rules that Adopt Connecting Factors which are not Based on the Territoriality Principle 199
64.Third Group of PIL Provisions Deviating from the Territoriality Principle:Rules Allowing Recognition and Enforcement of Foreign Judgments Rendered by Courts of States other than the IPRs Granting Countries 204
Ⅴ.Conclusions 204
65.Overcoming the Exclusive Jurisdiction,the Exclusive Designation of the Lex Loci Protectionis and the Impossibility of Recognising and Enforcing Foreign Judgments Rendered by Courts other than the Ones having Exclusive Jurisdiction or According to a Law other than the Lex Loci Protectionis 204
Chapter Ⅴ:Other Arguments are Insufficient to Mandate Exclusive Jurisdiction Rules 206
66.Introduction 206
67.Foreign Immovable Property,Local Actions,the Mocambique rule and Article 22(1) of the Brussels System 207
68.Double Actionability Rule 212
69.Sound Administration of Justice and the Judicial Economy 215
70.Best Placed Courts 215
71.Difficulties and Costs of Applying Foreign Laws 216
72.Recognition and Enforcement of Judgments on Foreign IPRs:Voluntary Compliance and Vicious Circle 218
73.Recognition and Enforcement of Judgments on Foreign IPRs:Public Policy Exception and International Mandatory Rules of the Country that Granted the Right 221
74.Recognition and Enforcement of Judgments on Foreign IPRs:already Existing Rules and Tendency in Favor of Recognition and Enforcement,Issue Preclusion and Res Judicata 231
75.Amendment of Registers 235
76.Forum Non Conveniens and Special Circumstances Test 238
Chapter Ⅵ:Exclusive Jurisdiction Rules Imply a Denial of Justice and Violate the Fundamental Human Right of Access to Courts 245
Ⅰ.Introduction 245
77.Premise 245
78.Denial of Justice 245
79.Forum Necessitatis 247
80.Hierarchy of the Sources of Law 256
81.Forum Necessitatis in the EU Brussels System 258
82.Exclusive Jurisdiction in the EU Brussels System 263
Ⅱ.The Fundamental Human Right of Access to Courts 264
83.Origin and Nature 264
84.Characterisation 267
85.Civil Proceedings 268
86.Restrictions of the Right of Access to Courts 269
87.Restrictions Imposed by International Jurisdiction Rules 271
88.Alternative Means of Recourse in the Forum State rather than in Third States 276
89.Exclusive Jurisdiction Rules and the Right of Access to the Court 280
Ⅲ.Exclusive Jurisdiction Rules are Contrary to the Public International Law Rules on the Denial of Justice and on the Fundamental Human Right of Access to Courts 281
90.Exclusive Jurisdiction Rules and Denial of Justice 281
91.Exclusive Jurisdiction Rules and the Fundamental Human Right of Access to Courts 286
92.Solutions of a PIL and Human Rights Nature 287
93.Analogy of the Conclusions Regarding the Relation between the Exclusive Jurisdiction Rules and the Fundamental Human Right of Access to Courts to the Conclusions Regarding the Relation between the same Exclusive Jurisdiction Rules and the Denial of Justice/Forum Necessitatis Rules 290
Ⅳ.Declining of Jurisdiction and International Responsibility 290
94.Remedies for Denial of Justice 290
95.Remedies for Violation of the Fundamental Human Right of Access to Courts 292
Chapter Ⅶ:General Conclusions 295
96.Conclusions 295
97.EU IPRs and European Unified Patent Judiciary 298
98.Preventing Economic Inequalities in Litigation in Favour not only of the IPRs Owners but of those with the Potential to Infringe IPRs as well 299
99.Forum Shopping 300
Bibliography 303
Tables of Cases 330
Table of Treaties,Conventions and Other Instruments 336
Index 339