Document Type

Article

Publication Title

Brooklyn Journal of International Law

Abstract

As those members of the innovation community who focus on procedural law know, the American Law Institute (ALI) is engaged in a project to facilitate litigation of intellectual property disputes that cross national borders. The enterprise owes its origins to the 1999 Draft of the Convention on Jurisdiction in Civil and Commercial Matters, negotiated at the Hague Conference on Private International Law. By now, it has undergone several iterations. Columbia University Professor Jane Ginsburg and I used the Hague material as the starting point for proposing a stand-alone convention dealing not only with the general problems of international litigation, but also with issues that uniquely arise when intangible rights are at stake. Our work, which was first presented at a Chicago-Kent College of Law symposium in October 2001, attracted the attention of the ALI. After arranging a further presentation in April 2002, the Institute formally adopted the project as its own. It appointed us, along with François Dessemontet of the University of Lausanne (Switzerland), as co-Reporters, and an international group of intellectual property lawyers, practitioners, and judges as Advisers of the project, entitled Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes. Revised drafts, now cast in the form of principles that courts may follow, rather than as a convention that nations must join, were presented to the Advisers in February of 2003 and 2004 and to a special session of the ALI membership in May 2004. A new draft will be presented to the Advisers in April 2005. It will be at least a year, probably longer, before the ALI will formally consider approving the final product. In the meantime, the Reporters are interested in broad input. Accordingly, we are grateful to Professor Sam Murumba for the valuable opportunity to discuss our work at Brooklyn Law School. The current draft differs in many ways from the one initially unveiled in Chicago. Of particular importance, it goes beyond the issues of personal jurisdiction and enforcement of judgments— the issues that were at the heart of the Hague Convention— to cover choice of law. After explaining why a project tailored to intellectual property litigation is desirable and describing its key features, this paper discusses the decision to add principles on applicable law and the factors that were considered in making specific choices.

First Page

819

Volume

30

Publication Date

2005

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