A Study On IP-Related Clauses Of The HCCH Draft Convention On Recognition And Enforcement Of Foreign Judgments In Civil Or Commercial Matters

To date,the Special Committee of the "Judgment" project of Hague Conference on Private International Law has conducted four negotiations on the Convention on the Recognition and Enforcement of Foreign Civil and Commercial Judgments("Judgment Convention").Among these negotiations,the issue of recognition and enforcement relating to intellectual property judgments is one of the important topics thereof.Since intellectual property rights are "territorial" and countries have different levels of protection for intellectual property rights,countries have different national awareness of intellectual property rights,and their positions are also different during the negotiation process.Regarding the recognition and enforcement of intellectual property judgments,two proposals are given in the Draft Judgment Convention so as to coordinate the interests of all parties.One is to completely exclude it;the other is to incorporate it into the Draft Judgment Convention system and continue to discuss the specific regulatory content at the diplomatic conference in June 2019.This dissertation will cut through the four controversial points in the negotiation process,conduct research on the IP-related clauses of the Draft Judgment Convention,and finally analyze China’s position in light of China’s concerns.Chapter 1 analyses the development and the main controversial points under IP-related clauses of Draft Judgment Convention.During the negotiation,considering the specificity of territoriality,negotiating countries have revised the IP-related clauses several times.The main controversial points are as follows:the recognition and enforcement of non-monetary IP-related judgment,the effect of recognition in IP field,misapplication of the applicable law as a refusal ground for recognition and enforcement,and indirect jurisdiction of the IP-related judgment.Chapter 2 analyses the recognition and enforcement of non-monetary IP-related judgment.This chapter take the most typical non-monetary judgment-injunction as an example.Exterritorial injunction is relatively common in western countries,its recognition and enforcement,however,is rare in practice.The rendering court would make a substitutive monetary judgment for ease of its circulation abroad.If non-monetary judgments fall in scope of Judgment Convention,other relevant issues would also arise consequently.Chapter 3 analyses the effect of recognition of IP-related judgment.The recognition under the Judgment Convention of a judgment rendered by one country,merely means that the required country recognized relevant issues of the given intellectual property,while not influencing the parallel intellectual property in other countries.Chapter 4 analyses whether the required country can review the applicable law or not.The review of applicable law or the review of merits are quite rare in practice.Basically,Article 5 of the Draft Judgment Convention can safeguard the proper applicable law.Thus,there is no need to review the applicable law of the underlying judgment.Chapter 5 analyses the indirect jurisdiction of IP-related judgment.Draft Judgment Convention provides an "quasi-exclusive jurisdiction" to IP-related judgment,which is independent of other jurisdiction bases provided by Article 5(1).The exception rule in the internet environment-targeting approach can provide the guarantee for the right of defendant.Chapter 6 analyses the impact of Draft Judgment Convention on China and China’s position in the diplomatic conference.China’s intellectual property policy and judicial reform require intellectual property rights to be included in the Convention.The decision of the national intellectual property authority is an administrative one,but it also needs to be included in the Convention for the purposes of the Convention.Overall,although the intellectual property development in China is not as fast as other developed countries,but at least not a weak one,and the intellectual property development momentum in China is growing rapidly.In the upcoming diplomatic conference,we can no longer appear in a conservative manner,instead,we should take a forward-looking vision to welcome this negotiation.