NATURE, SCOPE AND SUBJECT
MATTER OF PRIVATE
INTERNATIONAL LAW
SUBTOPIC: PRIVATE INTERNATIONAL
LAW ISSUES IN IPR REGIME OF INDIA
AAYUSHI GUPTA
19083
GROUP 16
INTRODUCTION
Understanding the word Intellectual Property and rights over it has been
defined under the Principles of Private International Law by ALI on IPR
under Article 101 as “intangible property which has been derived from the
creative activities of human brain including its invention, devices, industrial
designs, works, trademarks, trade secrets and other technical and business
information.” When we look at the aspect of IPR, then we see that it is no
longer confined within the territorial boundaries of a State and has become
global in nature. It involves the element which is foreign in nature. Courts are
now increasingly facing the conflict of laws in the field of Intellectual
property. Thus, it is important to understand IPR with respect to Private
International Law.
PRIVATE INTERNATIONAL LAW
Also known as Conflict of Cheshire- It comes into play
Laws, is that branch of law when the issue before the
which deals with the cases court affects some fact,
01 in which some relevant fact 02 event or transaction that is
has a geographical so closely connected with a
connection with a foreign foreign system of law as to
country or if there is some neccessitate recourse to that
foreign element involved. system.
NATURE, SCOPE AND SUBJECT MATTER
Private international law is the area of law that comes into play whenever a
court is faced with a question that contains a foreign element, or a foreign
connection. The presence of such a foreign element in a legal matter raises a
number of questions and it is the function of private international law to
provide an answer to these questions and to ensure just solutions. The
Division Bench of Bombay High Court, in Monica Variato v. Thomas Variato,
gave an enlightening explanation of what Private International Law is. He
stated that, “It is not the law governing relations between States. It is simply
a branch of the Civil Law of the State evolved to do justice between litigating
parties in respect of transactions or personal status involving a foreign
element.”
Distinction Between Private And Public International Law
Public International Law regulates relationship of states inter se and
determines rights and duties of the subject states at international
sphere, while PIL determines as to which law will apply of two
conflicting in a particular case having foreign element. Public
International Law is same for almost all the state whereas PIL varies
from state to state. Public international law has its sources in
treaties, custom etc. etc. Private international law has its sources in
the legislation of the individual state to which the litigant belongs.
Public international law is applicable to criminal as well as civil
cases. Private international law is applicable to civil cases only,
which present themselves for accession of courts of the state.
PRIVATE INTERNATIONAL LAW AND IPR REGIME
IN INDIA
• The Regime on IPRs
1883 1886 1990
The Paris The Berne Trade Related
Convention Convention Aspected of
on the Intellectual
Industrial Property
Property Rights
Rights Agreement
• Indian Legal Regime on Intellectual Property
Post independence, the Indian State has initiated efforts for
increased protection of IPRs in India by heralding changes at
legislative and policy level.
India is a signatory member to World Trade Organization
since 1995.
Patent Act, 1970
Trademarks Act, 1999
Designs Act, 2000
Paris Convention for the protection of Industrial Property,
1883
Hague Conference on Private International Law, 1955
• Principles Related to Jurisdiction and Applicable Law
General Jurisdiction- vested in the 1
courts of the State where the
defendant has his or her habitual
residence
2 Special Jurisdction- rules that allow
jurisdiction of the courts outside the
defendant’s forum.
Lex fori- applicable law regarding 3
the procedural matters.
A. Jurisdiction
• Copyright Act, Trade Marks Act and
CPC
• Indian Performing Rights Society v.
Sanjay Dalia
B. Choice of Law
• Principle of Territoriality
• Lex Loci
C. Foreign Judgments
• Exclusive Jurisdiction- exception for
enforcement of a foreign judgment
• In India, enforced through domestic legislation
CONCLUSION
The discussion of IPR involving cross border elements in India depicts absence of
clarity on basic issues including enforcement-related concerns. Owing to the
difficulties encountered in enforcing foreign judgments in trans-national intellectual
property disputes commercial arbitration is increasingly becoming an alternative
for IP-related disputes resolution. Intellectual property disputes have a number of
particular characteristics that may be better addressed by arbitration than by court
litigation. As it is increasingly becoming evident that the ownership of IP rights and
other contractual rights matters related to licensing and assignments could be
resolved through arbitration without entering into complex issues of Private
International Law.
