International Law on Competition and Intellectual Property - Coursework Example

International Law on Competition and Intellectual Property Name Institution Introduction The term ‘International Law’ is taken to refer to a form of public law established by states and governments by enacting laws and signing treaties and convention1. In grand scheme of things that most international legal disputes regarding business law include features of private law involving issues such as torts and contracts. One of the most viable options for creation of International legislation is creating a harmonized draft of national laws, resulting in a concrete set of equivalent rules applicable in many countries. Harmonization is enhanced in areas where friendly ties exist between nations and where countries apply similar set regulations for particular fields of application. Analysts are concerned about how the world will be able to come up with not only a state centered international legal system but also ensuring that it is adhered to and strengthened. There is a dire need to establish suitable legal instrument for addressing competition as well as property infringement. Scholars and international lawyers have differed on the question of relationship that subsists between international public and private law in the fields of intellectual property. These matters among others have motivated the need to write on this topic with an aim of examining various legal aspects of International law and practice. Nations create for themselves, private international law, which deals with matters that touch on foreign elements.2 Lawyers and other legal practitioners now are required to practice with the reality of expanding range of private international law issues. This has not been the norm in the past. In specific terms, this set of law forms the backbone upon which creating of international conventions on property law and infringement are established. Many commentators have strongly linked the establishment of international property law with the international private law principles, particularly within common law countries. Many questions, however, remain unanswered. For instance, lawyers find it difficult to provide viable pieces of advice to clients on specific issues that occur on day to day basis in the conduct of their business. The primary duty that private international law serves is to ensure, that disputes that involve foreign parties are handled by courts that are best placed to do so and that justice is served. Assurance should also be given that the outcome of the dispute will not in any way be influenced by the forum under which the matter is presented for hearing. In the same vein, this set of legislation is aimed at ensuring that the appropriate law is applied to every dispute, and that where applicable, that there is appropriate application of the law to each issue raised in the dispute. In many scenarios, more so in commercial disputes, prompt and efficient resolution of disputes, that the reasons for legal intervention are similar to those of purely domestic litigation, and consistency and predictability of outcomes.2 Today, product markets are increasingly becoming increasingly global. Businesses are managed as cartels of international scale – this means that market forces in one nation affect supply in others. Different concerned parties such as lawyers and the business fraternity cannot afford to limit competition law and antitrust to the borders of their home country. Modern antitrust law is a reflection of the extent to which antitrust and competition policy have dominated global markets which is a deviation from traditional antitrust law. Summary of sources A. British South Africa Co. versus Companhiade Mozambique This case answered the question as regards to whether domestic courts had jurisdiction over disputes that are of international scale. The ruling stated that these courts did not have such jurisdiction.3 It was the opinion of the court that ‘foreign land’ and ‘foreign intellectual property rights’ should be treated in equal measures and held that a similar jurisdictional prohibition existed. In light of this argument this rule was extended to cover matters of copyright infringement.4 B. Agreement between the United Mexican States and the EEC, July 15, 1975, 1975 OJ (L247).5 This Trade Agreement contains provisions relating to competition law enforcement cooperation between these two jurisdictions. In essence, the effectiveness of these provisions can be evaluated by considering the following conflicting hypotheses: under bilateral trade agreements, competition arrangements reached, do not contribute to any significant value addition over and above the spontaneous co-operation that emanates from parties that are in open competition, and that competition arrangements that are designed and negotiated directly by competition agencies are likely to bear fruits particularly in attaining the agency’s objectives. C. Gerber, D.J. “Law and Competition in Twentieth Century Europe: Protecting Prometheus” (China Social Science Publishing House, 2004). This book has highlighted how these seminars have helped to bring up high standards of Competition as well as introducing a number of Regulatory Reforms.6 With respect to information gathering, major strides have been made. For instance, APEC came up with a database to consolidate competition policies, all laws established by member parties and their schemes of implementation. D. Gerber D J (2004). Law and Competition in 20th Century Europe. According to this book the major barrier to achieving a well developed competition policy framework is the weak foundation of domestic competition laws.7 With exemption of few nations that enjoy fully liberalized market systems, most countries lack experience in effective legislation and enforcement of laws and policies of competition. In some cases, domestic competition laws are totally non-existent. One positive note is the fact that in 1990s over 70 managed to either amend their national competition laws or promulgate new ones. This implies that economic managers and lawyers alike, in many countries, have continued to recognize the importance of competition laws in foreign market development. As the world continues to witness many types of trade arrangements, harmonization of domestic competition laws will continue to be on the rise. Eventually, a single framework of multilateral competition policies will be established. E. Collins, AI (2003). ‘Caging the Birth Does not Cage the Song: How the International Covenant on Civil and Political Rights Fails to Protect Free Expression over the Internet’, John Marshall of Computer & Information Law 21. The paper presents some aspects of Trade-Related Intellectual Property Rights (TRIPS) of 1995 that formed the bench mark for international copyright protection. The agreement set minimum standards and rules on copyright protection8. It formed the bases upon which remedies for enforcement and harmonization of domestic procedures can be established. Since its establishment, many nations have borrowed some of its provisions for enactment within their borders. This further shows that International treaties could become source of national laws. F. Simmons, B. and Steinberg, R. H. (2006) (eds.), International Law and International Relations. The authors argue that with the world becoming a global village, partners cannot afford to destroy the business fabric that has taken so long to create. The most effective way is to come up with ways that regulate all each and every aspect of human activity – global business competition being one of them. The world has negotiated cold war era and the tensions that may have spilled over from the cold war era could potentially trigger new forms of enmity and mistrust among nations. Allowing each nation to regulate their competition issues through national laws is highly erroneous. Powerful nations would impose their authority over weaker countries while power houses that have had a history of ideological differences may take very divergent regulations.9 G. Wang Zhonghua, Gu Zheng (2004). Establishment of international antitrust coordination mechanism. Financial Research, 8: 93–96. This Journal article highlights the issue of nonbinding rules and binding rules. Analysis by scholars has established that many systems of international law usually experience the progress from individual practices to increase of cases and finally gain universal acceptance internationally.10 This trend is similar for the initiation and development of international competition legislation and rules. The field of International competition laws has witnessed formulation of several multilateral documents sine the emergence of international market in 20th century. Some of such documents include: Multilaterally Agreed Equitable principles of the United Nations Organization, Chapter 5 of 1948 Havana Charter, and Rules for the Control of Restrictive Business Practices among others. H. Laurence R. Helfer, Not Fully Committed? Reservations, Risk, and Treaty Design, 31 YALE J. INT’L L. 367 (2006). The article adds to a burgeoning second generation of interdisciplinary scholarship that uses social scientific approaches to analyze the design and efficacy of international rules and institutions.11 It underlines the importance of all participants to play their role in the development of international cooperation through treaties and pacts. Response to main title Competition Law Modern antitrust is primarily a reflection of the dominance of the economic model that connects policies of competition and antitrust laws and this is a major deviation from traditional antitrust law. Both USA and the European Community experienced this shift. Primarily legal models that were previously oriented towards autonomy based notions of free market operation have now been modeled towards maximizing the welfare of consumers in these regions. This has been done in such a manner that is common to the diverging political viewpoints in each.9 USA and EC have had significant differences in ideology and approaches. In the interest of their mutual benefit and at the expense of different values as with different presumptions in the manner in which the resolve various presumed empirical or theoretical dilemmas founded on policies of antitrust economics. The case is similar in other first world nations, and many third world countries that have, to a large extent, borrowed from European Union and USA antitrust policies. The current framework of international legal practice requires a state to prescribe norms for conduct where it has an express ‘basis of jurisdiction’, necessitating each nation to have a, legally defined relationship to the conduct. The requisite jurisdictional base exists, for example, where the conduct occurs within the state's territory or is performed by a national of the state. This conceptually simple framework considers the connection between the prescribing state and the conduct to be the sole legally relevant issue.1 In this regard, the only perspective that matter is that of the individual prescribing state and the perspectives of the international community and particular groups of states are ignored. As a result, these jurisdictional concepts direct the attention of the international community away from the Symposium Problem. The controversy over the effects principle, which has dominated international antitrust thinking since the Alcoa decision in 1945, 19 has further exacerbated the perceptual distortion caused by the current international jurisdictional paradigm.12 The controversy has focused attention on single-state defensive interests, and it has created conflicts over jurisdictions which have impeded transnational perspectives and cooperative action relating to international antitrust issues. For more than four decades the status of the effects principle under international law has been a dominant theme of international jurisdiction. Specifically, the issue is whether, under international law, a state may prescribe norms relating to foreign conduct merely because such conduct has certain effects within the territory of that state. Proponents argue that the effects principle is necessary in the modem world in order to allow states to achieve legitimate domestic regulatory goals. Without it, it is presumed, the central domestic regulation standards, primarily antitrust laws, would be accorded low deal since it would be likely that, conduct having domestic effects often could merely be transferred onto foreign territory. Opponents argue that international customary law does not support such an extension of jurisdictional prerogatives, and that application of the effects principle may violate the territorial sovereignty of nations in which the offending conduct occurs.10 Today, aspects of unilateral extraterritorial effect do not apply thanks to absence of basis in international law. Also, there are inherent limitations in the approach proposed by developed nations led by USA of procedural cooperation mechanism. Efforts of WTO topics on setting global competition policies have been frustrated by divergent member interests. On a contradictory note, high attention has been turned to regional competition policies. To enhance their basis of interaction both regional integration and competition policy cooperation have been combined. Ever since the establishment of Asia-Pacific Economic Cooperation Conference in 1989, APEC has effectively been working on establishing a multilevel system system of integration. Many gatherings have been held, both formal and informal, and involving different political and business players with an aim of coming up with the best way of forging sound economic cooperation, promoting free trade and establishing level ground for trade.13 In nature, APEC is different from traditional international organizations in many respects. It lacks a decision making body and a regional administrative structure. APEC has no special organization constitution. Despite these shortcomings it is still able to conduct different forms of economic cooperation basically through compromise agreements and without imposing any legal mandatory regulations upon members. APEC is therefore, viewed as a body that offers consultation services and acts as an unofficial economic platform, which is a “new regional economic cooperation mode”. The major achievement that APEC has attained is to Enhance Competition and Regulatory Reform framework. Regional cooperation is sought on the principles of “non-discrimination, comprehensiveness, transparency and accountability.” Besides playing a critical role in guiding the formulation of competition laws, laid down critical guiding principles for negotiations in multilateral engagements and promoting regional cooperation. It is founded on four basic principles:14 Comprehensiveness, Transparency, Non-discrimination, and accountabilities. Comprehensiveness: in general terms an economy should allow wide range of regulatory principles for both public and private business activities. Non-discrimination: where foreign and domestic entities are treated equally. Transparency: Policies and rules should be implemented transparently. Accountability: there ought to be specific responsibility in administration in implementation of competition policies. Intellectual Property International intellectual property law emanates from the long-term process of harmonizing national laws as a result of bilateral and multilateral agreements. This occurs in areas of trademark, copyright and patent. In the recent past the list has been prolonged to include software, databases, traditional knowledge and domain names1. Majority of issues relating on intellectual property law happen on an international scale hence are regulated through the World Intellectual Property Organization (WIPO). Globalization of laws dealing with intellectual property has been the result of new forms of protection by various nations and their subsequent harmonization through regional trade organizations and the World Trade Organization (WTO). These laws have at times been extended to cover plant variety protection, integrated circuit protection and licensing among others. There exist controversies regarding jurisdiction and enforcement. There are two distinct aspects of jurisdiction. First a question has to be answered as regards to whether a court of law is within mandate to exercise jurisdiction over the particular defendant in what is termed as personal jurisdiction.15 Second is whether a court is willing to apply foreign intellectual property laws if it were called upon to do so (subject matter jurisdiction). In enforcement of judgments rendered in cross border for a, the subject matter of jurisdiction is also pertinent a issue. Beyond the precepts of application of international treaties such as the Brussels16and Lugano17 Conventions, personal jurisdiction follows service in line with the provisions of Anglo common law. This is applicable only under personal jurisdiction of a court where the defendant is duly served with served with the relevant documentation necessary to initiate the proceedings. The forum is mandated by specific provisions of legislature where personal jurisdiction is allowed over parties to the dispute that are present. Under the principles of domestic law these may be served as of right. Residence of business can be applied to demonstrate presence, but even so proof of permanency would be required in the forum.18 All claims against a defendant present will be evaluated by the domestic court - even in cases where certain causes of action do not relate to acts done in the forum. In cases where defendants are not physically present in the forum, there exists a set of special rules within the domestic forum, that give guidance as regards to whether the defendant is deserving of the service. A court can exercise its due jurisdiction, for instance, where a there are assertions of commission of tort and the damage suffered is attributable to original country19 or is a direct result of act committed in the home forum.20 Under Anglo common law tradition, subject matter jurisdiction was highly restricted from all allegations involving infringement of intellectual property rights on international scale. In a nut shell this can be taken to imply or reflect a general reluctance to apply foreign laws.21 However, disputes of intellectual property infringement have been considered to bring about challenges that are reasonably distinct from general concerns surrounding the application of international legislation. Owing to this prohibition, the doctrine of ‘forum non conveniens,’ has been a subject of scant analysis in all matters that involve intellectual property and infringement.22 There is a tradeoff between exercise of sovereign power and intellectual property rights. Due to this courts have commonly adopted restrictive approach when exercising their jurisdiction. Courts of countries that use common law are well used to applying foreign contract or laws of tort.23 However, intellectual property rights serve as the sufferance of the domestic sovereign. This is contrary to situations that involve of contractual obligations that are bone out of parties’ own motion and tortious claims.24 This characterization is sufficiently clear in matters of patents and trademarks, where bureaucratic actions have a bearing on their existence. Individual copyrights are not dependent on state policy, law or action for them to become effective.25 But even with these state of affairs, national statutes are still relevant in defining the circumstances under which copyrights come into existence and the specific rights that are the author is entitled to. The geographical territory of intellectual property rights guides legal approach and the choice of law to be applied in determination of the matter in question.26 It is important to reassert that domestic courts have very remote opportunities under which they can choose the set of legal principles for application with respect to infringement of foreign registered rights. In situations where systems of Anglo common are applied, it is common practice for Courts to hold the proposition that international copyright is a skeleton of confined national copyrights, that is copyrights from specific counties.12 The possibility of adopting harmonized set of laws in governing intellectual property practice, more so for copyright issues touching transactions of international scale, has been debated on extensively by different scholars and international lawyers27. With respect to property infringement that involves foreign states, alternatives that are available include: the law relating to place where the work is uploaded; legal determination of residence of owner of that work, or the law that is prevailing in the country where infringement is initiated. These suggestions represent approaches that are available for application to bring efficiency gains to concerned parties and even reduce administration costs for businesses. There is growing need to harmonize the different sets of laws into one law, which would simplify application as opposed to when parties have to deal with multiplicity of foreign copyright laws. Such a move would potentially simplify many issues that touch on intellectual property infringement. In addition, giving focus to development of public international law may significantly support such initiatives. However, this may be limited to particular cases in the copyright nature. Some approaches to foreign property right need to be scrubbed in favour of international copyright relations1. Certain forms of intellectual property, however, bring controversies most frequently due to what is perceived as importance of public policy in respect to approaches to the property rights in question and the laws that should be applied for extraterritorial matters. For purposes of private international law, the common law tradition follows the ‘immovable’/’movable’ categorization. For instance, land under the framework of national domestic law would be categorized as personal property though it is paradigmatically ‘immovable’. Certain property, like the intellectual property rights are categorized in similar manner though they may seem as though they are artificial. The site of the property in dispute is the sole determinant of whether or not something is movable. Accordingly, because “the essence of an intellectual property right is the owner’s right to take action to prevent others from engaging in certain types of activity in a given territory,” it would imply therefore that, a copyright, or a copyright “is situated in the country whose law governs its existence.”28 Bibliography 1. EUGENE R. FIDELL (2004). The Impact of International Law on International Cooperation: Theoretical Perspectives. Cambridge, New York: Cambridge University Press. 316. 2. David Goddard, CONFLICT OF LAWS: JURISDICTION AND FOREIGN JUDGMENTS 4 (1999). 3. British South Africa Co v Companhia de Mozambique [1893] AC 602. 4. Tyburn Productions v Conan Doyle (1990) 19 IPR 455. 5. Marsden, P & Whelan, P (2007) The Contribution of Bilateral Trade or Competition Agreements to Competition Law Enforcement Cooperation between the EU and Mexico. SSRN Working Paper Series. Rochester. 6. Chen Xiushan (1998). Modern Competition Theories and Competition Policies. Beijing: The Commercial Press, 4 7. Gerber D J (2004). Law and Competition in 20th Century Europe. 8. Collins, AI (2003). ‘Caging the Birth Does not Cage the Song: How the International Covenant on Civil and Political Rights Fails to Protect Free Expression over the Internet’, John Marshall of Computer & Information Law 21. 9. Simmons, B. and Steinberg, R. H. (2006) (eds.), International Law and International Relations. 10. Wang Zhonghua, Gu Zheng (2004). Establishment of international antitrust coordination mechanism. Financial Research, 8: 93–96. 11. Laurence R. Helfer, Not Fully Committed? Reservations, Risk, and Treaty Design, 31 YALE J. INT’L L. 367 (2006). 12. George W. Downs & Michael A. Jones, Reputation, Compliance, and International Law, 31 J. LEGAL. STUD. 95 (2002). 13. Kenneth W. Abbott, Robert O. Keohane, Andrew Moravcsik, Anne-Marie Slaughter, & Duncan Snidal, The Concept of Legalization, 54 INT’LORG. 401 (2000). 14. Zhang Zhiwen (2000). Status Quo of APEC’s Formulating Competition Policies and Existing Problems. World Economic Research, 6: 24. 15. Barbara Koremenos, Contracting Around International Uncertainty, 99 AM. POL. SCI. REV. 549 (2005). 16. Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1972 OJEC (L299) 32 (hereinafter “Brussels Convention”). 17. Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters 1988 OJEC (L319) 9 (hereinafter “Lugano Convention”). 18. Companies Act 1993, ss 334 and 2(1) (NZ). 19. Playboy Enterprises Inc. v Webworld, Inc. 991 F.Supp. 453 (N.D. Tex. 1997). 20. Art 5.3 of the Brussels Convention, as interpreted by the European Court of Justice in Shevill and Others v Presse Alliance S.A. Case 68/93 [1995] ECR 415. 21. The Eleftheria (Owners) [1970] P 94; Primesite Outdoor Advertising Ltd v City Clock (Australia) Ltd (1991) 4 PRNZ 472. 22. GW Austin, The Infringement of Foreign Intellectual Property Rights (1997) 113 LQR 321, 323. 23. DICEY & MORRIS, Part Seven “Law of Obligations”. 24. RICKETSON, COPYRIGHT, DESIGNS & CONFIDENTIAL INFORMATION, Supplement No 1 75 (2000). 25. Berne Convention for the Protection of Literary and Artistic Works, Art. 5(2). 26. Abkco Music & Records, Inc. v Music Collection International Ltd. [1995] RPC 657, 660 (per Hoffmann LJ). 27. Jane C Ginsburg, The Private International Law of Copyright in an Era of Technological Change, 1998 28. DICEY & MORRIS, para. 22-051. Read More