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Sierd J. Schaafsma, Intellectual Property in the Conflict of Laws; The Hidden Conflict-of-law Rule in the Principle of National Treatment
This book presents a new explanation as to the conflict-of-law rule in the field of intellectual property. In addition, it also provides new insights into the history of the conflict-of-laws, aliens law and their relationship.
The book focusses on the difficult question whether the Berne Convention (on copyright) and the Paris Convention (on industrial property) contain a conflict-of-law rule. Opinions differ widely on this matter today. However, in the past, for the nineteenth-century authors of these treaties, it was perfectly self-evident that these treaties contain a conflict-of-law rule, namely in the ‘principle of national treatment’ as it is called. How is that possible? These are the fundamental questions at the heart of this book: does the principle of national treatment in the Berne Convention (article 5(1)) and the Paris Convention (Article 2(1)) contain a conflict-of-law rule? And if so, why do we no longer understand this conflict-of-law rule today?
The study reveals a ground-breaking new explanation why the principle of national treatment in these treaties contains a conflict-of-law rule: the lex loci protectionis.
Key to understanding is a paradigm shift. The principle of national treatment was developed as a doctrine-of-statute solution addressing a doctrine-of-statute problem. In that way of thinking, it is self-evident that the principle of national treatment contains a conflict-of-law rule. However, today we have started to think differently, i.e. within the paradigm of Von Savigny. This causes a problem: we look at an old, statutist solution through Savignian glasses, and as a result the conflict-of-law rule in the principle of national treatment is out of the picture. Meanwhile, we are not even aware that we are looking through Savignian glasses and that these glasses narrow our field of vision – and as a result, this conflict-of-law rule is beyond our reach. The explanation in this book results in a comprehensive and consistent interpretation of the respective provisions in these treaties, and it explains why we no longer understand this conflict-of-law rule today (see especially paragraph 5.1.2).
The search for this new explanation has, in addition, generated several new insights into the history of the conflict of laws in general (see especially paragraph 5.2.3), aliens law, and the relationship between these two fields of law.
Finally, the book is also detailed and authoritative explanation of the intersection of the conflicts of law and intellectual property law, providing a full and detailed analysis of the current state of affairs of the intersection of these fields of law. It also deals with less common themes such as material reciprocity (Chapter 6).
This book is an English translation of Sierd J. Schaafsma’s book, which appeared in Dutch in 2009, and is now updated with the most significant case law and legislation.
Elgar, 2022; see Elgar website.
Bitcoin and public policy in the field of international commercial arbitration
Is a foreign arbitral award granting damages in bitcoin compatible with substantive public policy? The Western Continental Greece Court of Appeal was recently confronted with this question. Within the framework of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, it ruled that the recognition of a US award runs contrary to Greek public order. Cryptocurrency, such as bitcoin, favors tax evasion and facilitates economic crime, causing insecurity in commercial transactions to the detriment of the national economy.
FACTS
The applicant, a German national, was a member of a website, governed by a US company. The website was a platform through which members could conclude credit contracts in cryptocurrency (bitcoin). The applicant agreed with a resident of Greece to finance his enterprise by providing a credit of 1.13662301 bitcoin. The Greek debtor failed to fulfill his obligations, and he refused to return the bitcoin received. On the grounds of an arbitration agreement, an award was issued by an online arbitration court, located in the USA. The debtor appeared in the proceedings and was given the right to challenge the claim of the applicant. The court of first instance decided that the arbitral award may not be recognized in Greece for reasons of substantive public policy (CFI Agrinio 23.10.2018, unreported). The applicant lodged an appeal.
THE JUDGMENT OF THE COURT APPEAL
The appellate court began with a short description on the nature of bitcoin. It then mentioned the position of the European Central Bank with respect to the same matter. It concluded that the use of bitcoins endangers transactions both for the parties involved and the state. This comes from the fact that any income resulting from the use of cryptocurrency is tax-free, given that this kind of transactions are not regulated in Greece. Hence, importing capital in bitcoins and generally any kind of cryptocurrency, irrespective of the type of legal matter, infringes the domestic legal order, because it favors tax evasion and facilitates economic crime, causing insecurity in commercial transactions to the detriment of the national economy.
As a result of the above, the recognition of an award which recognizes bitcoin as a decentralized currency unit (peer to peer), and orders the payment of a certain debt in bitcoins, runs contrary to public policy, i.e., to fundamental rules and principles of Greek legal order in present times, reflecting predominant social, financial, and political values.
Finally, by enhancing transactions in bitcoin and promoting its equalization to legal currency, the recognition of such an award in Greece would essentially disturb prevailing standards of the country, given bitcoin’s sudden and unpredictable fluctuations [Western Continental Greece Court of Appeal 27.09.2021, unreported].
COMMENT
Unlike the profound analysis of the first instance court, the appellate court confirmed the judgment mechanically, with zero references to legal scholarship and case law. The developments in the subject matter between 2018 (publication of the first court’s ruling) and 2021 (publication of the appellate court’s judgment) were not taken into account. The Hellenic Republic has transposed crucial directives related to cryptocurrency (see DIRECTIVE (EU) 2019/713 of 17 April 2019 on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA). New income tax rules and regulations focusing on cryptocurrency are prepared by state authorities. Even now, i.e., without a special law on cryptocurrencies, bitcoin profits must be declared for taxation purposes. Bitcoin exchange offices are active in the country. To conclude, the judgment seems to be alienated from contemporary times.
Referring to the judgment of the CJEU in the case Skatteverket / David Hedqvist (C-264/14), the first instance ruling underlined that the decision focused on the Swedish economic environment, which may not be compared to the situation in Greece. Therefore, and in light of recent developments in the country, we may hope that the courts will soon shift course towards a more pragmatic approach.
[Many thanks to Professor Euripides Rizos, Aristotle University of Thessaloniki, for his valuable insight into the field of cryptocurrencies]
EFFORTS Questionnaire on Digitalization of Civil Procedures Relating to Cross-Border Enforcement
In the framework of the EFFORTS Project, a questionnaire has been drawn up on the digitalization of civil procedures relating to cross-border enforcement.
The questionnaire aims at collecting quantitative and qualitative data on the digitalization of enforcement procedures at the national and European level, with a view to identifying technical solutions and legislative amendments to implement such digitalization.
The questionnaire, together with information on the EFFORTS Project, may be accessed here
The EFFORTS project partners thank you in advance for your time and contribution!
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union
News
Book on PIL on rights in rem in the EU
The book titled Private International Law on Rights in rem in the European Union. Derecho internacional privado sobre derechos reales en la Unión Europea and edited by Maria Font-Mas of the Universitat Rovira i Virgili in Spain, has just been released with Marcial Pons.
The book is the result of the several years of collaborative work (referred to here and here) of the researchers from different countries convened by Maria Font Mas under the project PID2020-112609GB-I0 “Property Rights System over Tangible Goods in the Field of European Private International Law: Aspects of International Jurisdiction and Applicable Law”, funded by the Spanish Government.
The great achievement of the editor is in her ability not only to gather and coordinate many authors of various provenance around under-researched topic of rights in rem in PIL but also to have this book published in open access so that it is available to all under no limitations except to have the internet access. The book may be viewed and downloaded at https://marcialpons-openaccess.es/index.php/juridicas/catalog/book/5 as a single volume or chapter-by-chapter. In case you prefer the paper version, it is available for purchase here.
The contributors (in the order of appearance) are: Maria Font-Mas, Georgina Garriga Suau, Josep M. Fontanellas Morell, Héctor Simón Moreno, Christopher A. Whytock, Rocío Caro Gándara, Josep M. Fontanellas Morell, Iván Heredia Cervantes, Nerea Magallón Elósegui, Ángel Serrano de Nicolás, Albert Font i Segura, Pau Oriol Cosialls Perpinyà, Ilaria Pretelli, Carmen Parra Rodríguez, Cristina González Beilfuss, Diana Marín Consarnau, Eva-Maria Kieninger, Francisco J. Garcimartín Alférez, Afonso Patrão, Pietro Franzina, Gilles Cuniberti, Jonathan Schenk, Birgit van Houtert, Alfonso Ortega Giménez, Ivana Kunda, Janeen M. Carruthers, Sabrina Ferrazzi, Guillermo Palao Moreno, Rosa Miquel Sala, Silvana Canales Gutiérrez and Vésela Andreeva Andreeva.
Webinar on Multistate Torts Ahead of the EAPIL Winter School, 2 December 2024
On 2 December 2024, at 6 pm CET, a free webinar will take place in preparation of the 2025 edition of the EAPIL Winter School on Multistate Torts, which will be held on-site in Como between 10 and 15 February 2025 (see here for the full program and further details).
The webinar will give a glimpse of what the Winter School will be about and will briefly present some of its hot topics, such as online defamation, climate change litigation, artificial intelligence and crypto values.
The speakers are some of those who will be lecturing at the Winter School, namely Javier Carrascosa González (University of Murcia), Anatol Dutta (Ludwig Maximilian University of Munich), Thomas Kadner Graziano (University of Geneva), Tobias Lutzi (University of Augsburg), Satu Heikkilä (Administrative Law Judge), Silvia Marino (University of Insubria), Nadia Rusinova (The Hague University, attorney at law), Geert van Calster (KU Leuven) and Anna Wysocka-Bar (Jagiellonian University).
The webinar will also offer an opportunity to provide information about the EAPIL Winter School.
Join the free seminar to discover what awaits you during the Winter School week, and…if you want to know more, enrol and come to Como in February!
Those interested in attending the webinar shall write at eapilws@gmail.com in order to receive the Teams link.
SICL: Workshop on Providing Information on Foreign Law to Courts on 26 November
As foreign law assumes an increasingly significant role in judicial practice, the Swiss Institute of Comparative Law is pleased to announce a Workshop on Providing Information on Foreign Law to Courts, which will take place in Lausanne on November 26.
Renowned experts, both individuals and institutions, will delve into practical challenges and share insights, comparing practices from various countries, including England, France, Germany, Poland, Switzerland and USA.
Presentations will be conducted in English, in German or in French.
For further information, please contact: marie-laure.lauria@isdc-dfjp.unil.ch
The program for the workshop is available below or can be accessed here.
INDIVIDUAL EXPERTS
9.30-11.00
Chair: Dr. Lukas Heckendorn, Deputy Director, Swiss Institute of Comparative Law
- Experiences in Poland and Germany compared
Prof. Arkadiusz Wudarski, European University Viadrina Frankfurt
- A Common Law Experience
Prof. Franz Werro, University of Fribourg and Georgetown University
- French Experiences
Prof. Gustavo Cerqueira, Université Côte d’Azur
Discussion
11.00-11.30: Coffee break
INSTITUTIONAL EXPERTS
11.30-12.30
Chair: Dr. Ilaria Pretelli, Legal Adviser, Swiss Institute of Comparative Law
- The German Approach: The Max Planck Guidelines
Jan Peter Schmidt, Priv.-Doz., Max Planck Institute for Comparative and International Private Law, Hamburg
- The Swiss Approach: experience of SICL
Lukas Heckendorn Urscheler, Deputy Director, Swiss Institute of Comparative Law
Discussion
12.30-13-30 : Lunch
BARCAMP
13.30-16.00
Moderator: Prof. Nadjma Yassari, Director, Swiss Institute of Comparative Law
A Barcamp session is an open and interactive format that encourages collaboration and idea-sharing. Since all participants join every session, the process is highly collaborative, ensuring focused, inclusive, and enriching discussions for everyone involved.
- Proposing Topics: Any participant can suggest a topic, which will be guided by a moderator.
- Moderated Discussions: A designated moderator ensures the session stays focused and that everyone has the chance to contribute.
- Flexible Structure: Sessions can take the form of a short presentation, group discussion, or collaborative brainstorming.
- Open Exchange: Everyone is encouraged to actively contribute their ideas, perspectives, and questions.
- Shared Learning: The goal is to exchange knowledge, explore new approaches, and learn from each other.
16.00: closure of event