Choice of Law in Intellectual Property Infringement Disputes

Dr. Ekin Omeroglu
Kadir Has University Istanbul
Turkey

Saturday, 14 September – 11:00 am
Room W 401, Faculty of Law – Professor-Huber-Platz 2, 80539 Munich

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Party autonomy principle represents one of the fundamental pillars of private law. In private international law, which deals with legal relationships beyond national borders, the principle of party autonomy is given effect by choice of law rules. Choice of law has been widely recognized in respect of contractual obligations for a long time. However, party autonomy in intellectual property infringement disputes has been an unvalued issue and choice of law by parties was simply considered as non-existent. The possibility to apply party autonomy principle in intellectual property torts was briefly discussed when drafting a proposal for the Regulation on the Law Applicable to Non-Contractual Obligations (“Rome II Regulation”). After negotiations, the European Parliament decided explicitly to exclude the possibility of choice of law in intellectual property infringement disputes. However, the idea of party autonomy is gaining ground in academic projects from the United States, Europe and Asia. For example, the Principles proposed by the American Law Institute, the proposal by the European Max Planck Group on Conflict of Laws in Intellectual Property and the Joint Proposal drafted by members of the Private International Law Association of Korea and Japanese Waseda University Global COE Project suggest party autonomy for intellectual property infringements. Besides, recent codifications of private international law, such as Swiss Law on Private International Law and Belgian Code of Private International Law, accept party autonomy notion. This provides a strong reason to reconsider the traditional rejection of party autonomy in intellectual property infringement cases. Therefore, the purpose of this presentation is to reach a solution if party autonomy principle would be acceptable in intellectual property infringement disputes.