[Hague-jur-commercial-law] IP working group proposal April 26, 04

[Manon Ress]

On Sunday, the IP working group meeting April 25, 2004 produced the
following text.  It is in bracket.  Some delegations want IP entirely out
of the convention, other want an open list of exclusion, or a closed list
(China wants for example the validity of folklore and traditional
knowledge out), one wants validity and infringement out, another a carve
out at the enforcement…so here it is, in bracket.

Working Document no 97
Proposal of the IP Working Group

Article 1.

3.  The Convention Shall not apply to the following matters –

k) [an intellectual property right other than copyright or related rights,
except proceedings brought under a contract licensing or assigning such
intellectual property right [including proceedings for infringement of the
right to which the contracts relates]].

[delete (l)]

4. Notwithstanding pargraph 3, proceedings are not excluded from the scope
of the Convention where a matter referred to in that paragraph arises
merely as an incidental question and not as an object of the proceedings.

Article 4 bis Stay of proceedings in the chosen court

Nothing in this convention shall preclude a court from suspending or
dismissing without prejudice the proceedings before it, in particular in
order to allow the courts of the state under the law to which the
intellectual property right arose to give a ruling on validity.]

Article 7 bis

1. If a matter referred to in article 1(3) arose as an incidental
question, the ruling on that question shall not be recognized and enforced
under this Convention.

[2. Where an incidental ruling on the validity of an intellectual property
right other than copyright or related rights was necessary for the
judgment of the court of origin, recognition or enforcement of the
judgment may be refused to the extent that the judgment of the court of
origin is inconsistent with a judgment on the validity of the intellectual
property right rendered in the state under the law of which the
intellectual property rise arose.]

[3. Where an incidental ruling on the validity of an intellectual property
right other than copyright or related rights was necessary for the
judgment of the court of origin, recognition or enforcement of the
judgment may be suspended or dismissed without prejudice at the request of
one of the parties if proceedings on validity are pending in the State
under the law of which the intellectual property right arose.]

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