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Chapter Ⅰ:Introduction1

Ⅰ.Premise1

1.Exclusive Jurisdiction in Intellectual Property Rights Cases between Public and Private International Law1

2.What is Included in Exclusive Jurisdiction Rules and what is not.Exclusive Jurisdiction and Subject Matter Jurisdiction10

3.Peculiarities Related to the Analysis of the Lucasfilm and Gallo Cases,and a Brief Mention of Apple's and Samsung's still Unsettled Patent War around the Globe16

4.Uniform European Union Patent and Unified Patent Litigation System:Where do we Stand?19

5.Terminology:Private International Law (PIL);Brussels System;Court of Justice of the European Union (ECJ);Exclusive Jurisdiction;Intellectual Property;Traditional Knowledge (TK),Genetic Resources (GR) and Folklore (F);Intangible Cultural Heritage (ICH);Registered and Unregistered Intellectual Property Rights (IPRs);State Granting an IPR;International Conventions on IP;Four Academic Sets of Principles;International Law Association Committee;the Hague Preliminary Draft;Validity Claims Principally and Incidentally Raised;Infringement Proceedings;Duplicated Proceedings;Misappropriation and Protection;Judgments;Rendering State and Requested Country;Courts27

6.Internet and Geolocation Tools40

Ⅱ.Theses Purporting that Comity,The Act of State Doctrine and The Territoriality Principle Establish Implicit Exclusive Jurisdiction Rules42

7.The US Court of Appeals for the Federal Circuit Voda Judgment and the UK Court of Appeal Lucasfilm Decision42

8.The ECJ GAT Decision45

Ⅲ.Exclusive Jurisdiction Rules are not Established either by Comity or by the Act of State Doctrine and the Territoriality Principle,but rather are Contrary to the Public International Law Rules on the Right of Access to Courts48

9.The Subject Matter and the Plan of this Research:Arguments Against Comity and the Act of State Doctrine,as well as Against the Territoriality Principle.The Human Right of Access to a Court48

10.Arguments Against the Other Rationales in Support of Exclusive Jurisdiction Rules:Foreign Immovable Property,Local Actions,the Mocambique Rule and Article 22(1) of the Brussels System;Double Actionability Rule;the Sound Administration of Justice and the Judicial Economy;the Best Placed Courts;the Difficulties of Applying Foreign Laws;Non-Recognition and NonEnforcement of Judgments on Foreign IPRs;the Amendment of Registers;Forum Non Conveniens49

11.Conclusions.Exclusive Jurisdiction Rules Shall be Abandoned in Benefit not only to IPRs Owners,but also to those with the Potential to Infringe IPRs:Referral50

12.Delimitation of this Research:Overprotection of IPRs;Contracts;General Jurisdiction;Infringement Jurisdiction;Jurisdiction for Provisional Measures;Prorogation of Jurisdiction;Objective or Subjective Consolidation of Claims;Lis Pendens',Arbitrability and Judicial Settlements;Allocation of Jurisdiction in Purely Domestic Cases50

Chapter Ⅱ:Comparison.Exclusive Jurisdiction Rules do not Express a Customary International Law Rule.The New Trend to Abandon them55

Ⅰ.Aims,Delimitation and Terminology of the Comparison55

13.First Aim:Exclusive Jurisdiction Rules are not Expressions of Customary International Law Rule55

14.Second Aim:Existing Trend in Favour of the Abandoning of Exclusive Jurisdiction Rules60

15.Delimitation,Plan and Terminology of the Comparison61

Ⅱ.The Almost Universal Absence of Exclusive Jurisdiction Rules for Unregistered IPRs both with Respect to Infringement Issues and Validity Claims,whether Principally or Incidentally Raised62

16.The Almost Universal Absence of Exclusive Jurisdiction Rules in International Instruments,as well as in EU and EFTA Norms,in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles62

17.The Very Limited Presence of Exclusive Jurisdiction Rules in South Africa and in India69

Ⅲ.The Almost Universal Absence of Exclusive Jurisdiction Rules for Registered IPRs Pure Infringement Claims,However Raised69

18.The Almost Universal Absence of Exclusive Jurisdiction Rules in International Instruments,as well as in EU and EFTA Norms,in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles69

19.The Very Limited Presence of Exclusive Jurisdiction Rules in Certain Common Law Countries and in India76

Ⅳ.The Prevailing Absence of Exclusive Jurisdiction Rules for Registered IPRs Validity Issues Incidentally Raised77

20.The Prevailing Absence of Exclusive Jurisdiction Rules in International Instruments and the Mitigation of the Scope of the Exclusive Jurisdiction Rules of the EU/EFTA Brussels System77

21.The Prevailing Absence of Exclusive Jurisdiction Rules in National Statutory or Case-law Rules and in the Most Recent Academic Initiatives Principles87

22.The Presence of Exclusive Jurisdiction Rules in the Brussels System,albeit with Mitigated Scope.The Limited Presence of Exclusive Jurisdiction Rules in Certain Common Law Countries and in India89

Ⅴ.The Emerging Rejection of Exclusive Jurisdiction Rules for Registered IPRs Validity Issues Principally Raised90

23.The Emerging Rejection of Exclusive Jurisdiction Rules90

24.The Exclusive Jurisdiction Rules in EU/EFTA Norms as well as in the National Statutory or Case-law Rules96

Ⅵ.Conclusions97

25.The Exclusive Jurisdiction Rules Related to Unregistered IPRs Pure Infringement Claims and Validity Claims however Raised,as well as Registered IPRs Pure Infringement Claims and Validity Claims Incidentally Raised,are not an Expression of a Customary International Law Rule97

26.The Exclusive Jurisdiction Rules related to Registered IPRs Validity Issues Principally Raised are not an Expression of Customary Law98

Chapter Ⅲ:The Act of State Doctrine and Comity do not Mandate Exclusive Jurisdiction Rules100

Ⅰ.Introduction100

27.Reasons for Addressing the Act of State Doctrine and Comity in this Same Chapter100

28.Reasons for Primarily addressing Common Law Jurisprudence101

29.The Act of State and Comity Doctrines as "Suggested" by Public International Law102

Ⅱ.Theses According to which the Act of State Doctrine Implicitly Poses Exclusive Jurisdiction Rules102

30.Theses According to which the Act of State Doctrine Establishes Implicit Exclusive Jurisdiction Rules:the Voda and the ECJ GAT Decisions102

31.Other Relevant Judgments104

32.The Inapplicability of the Act of State to Unregistered IPRs107

Ⅲ.The Act of State Doctrine Does not Pose Exclusive Jurisdiction Rules108

33.The Act of State Doctrine Does not Prevent Courts from Adjudicating Foreign Acts of States108

34.IPRs are not an Expression of the Sovereignty of Foreign Governments114

35.Relevant Judgments117

Ⅳ.Theses According to which Comity Implicitly Poses Exclusive Jurisdiction Rules120

36.Theses According to which Comity Establishes Implicit Exclusive Jurisdiction Rules:the Voda and the UK Court of Appeal's Lucasfilm Judgments120

37.Other Relevant Judgments123

38.The Applicability of Comity to Unregistered IPRs126

Ⅴ.Comity does not pose Exclusive Jurisdiction Rules128

39.Assuming Jurisdiction over Foreign IPRs Claims is Imposed by Public International Law,Referral128

40.Assuming Jurisdiction over Foreign IPRs Claims does not Prejudice the Rights of Foreign Governments129

41.Assuming Jurisdiction over Foreign IPRs Claims Corresponds to the Citizens' Interests131

Ⅵ.The Act of State Doctrine and Comity are Contrary to Public International Law132

42.The Act of State and Comity are not Suggested by Public International Law132

43.The Act of State and Comity are even Contrary to the Public International Law Rules on the Avoidance of a Denial of Justice and on the Right of Access to a Court135

Chapter Ⅳ:The Territoriality Principle does not Mandate Exclusive Jurisdiction Rules137

Ⅰ.Territoriality and Universality137

44.Territoriality and Universality in Public International Law137

45.Territoriality and Universality in Relation to IPRs138

Ⅱ.Territorial and Universal IPRs Protection Outside the IP Systems148

46.The Territoriality Principle as an Obstacle to the Universal Protection of IPRs.Thesis Proposing to Achieve that Universal Protection throughout International Legal Systems other than that which is Established for IP.The Relevance of these Theses for Present Purposes148

47.Crimes of Piracy,Cyberattacks and Biopiracy150

48.Human Rights to Intellectual Property153

49.UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects158

Ⅲ.Territorial and Universal IPRs Protection Inside the IP Systems160

50.Theses According to which the Territoriality Principle Establishes Implicit Exclusive Jurisdiction Rules:the Voda,the UK Court of Appeal's Lucasfilm and the Gallo Judgments,Referral160

51.The Territoriality Principle in the CUP,CUB,and TRIPs Agreement does not Pose Exclusive Jurisdiction Rules161

52.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement Poses Exclusive Jurisdiction Rules161

53.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement Impedes the Courts Seised from Adopting PIL Rules170

54.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement has only a Substantive Nature172

55.Non-acceptability of the Opinion that the Territoriality Principle in the CUP,CUB,and TRIPs Agreement has a PIL Nature and Always Prescribes the Application of the Lex Loci Protections173

56.The Territoriality Principle in other Relevant Norms Expressly Shaped as PIL Rules176

57.Non-acceptability of the Opinion that the Territoriality Principle in Rules other than the CUP,CUB,and TRIPs Agreement does not Impose the Application of a Foreign Law178

58.Non-acceptability of the Opinion that the Territoriality Principle in Rules other than the CUP,CUB,and TRIPs Agreement has only a Substantive Nature179

Ⅳ.Thesis Here Purported:the Territoriality Principle as an Expression of the Proximity Principle180

59.Opinions Already Emphasizing the Connection between the Territoriality Principle and Proximity Reasons in IPRs Cases180

60.Lagarde's Thesis on the Proximity Principle182

61.Extension to IPRs of Lagarde's Thesis on the Proximity Principle186

62.First Group of PIL Provisions Deviating from the Territoriality Princile:Rules that Adopt Jurisdiction Criteria which are not Based on the Territoriality Principle188

63.Second Group of PIL Provisions Deviating from the Territoriality Principle:Rules that Adopt Connecting Factors which are not Based on the Territoriality Principle199

64.Third Group of PIL Provisions Deviating from the Territoriality Principle:Rules Allowing Recognition and Enforcement of Foreign Judgments Rendered by Courts of States other than the IPRs Granting Countries204

Ⅴ.Conclusions204

65.Overcoming the Exclusive Jurisdiction,the Exclusive Designation of the Lex Loci Protectionis and the Impossibility of Recognising and Enforcing Foreign Judgments Rendered by Courts other than the Ones having Exclusive Jurisdiction or According to a Law other than the Lex Loci Protectionis204

Chapter Ⅴ:Other Arguments are Insufficient to Mandate Exclusive Jurisdiction Rules206

66.Introduction206

67.Foreign Immovable Property,Local Actions,the Mocambique rule and Article 22(1) of the Brussels System207

68.Double Actionability Rule212

69.Sound Administration of Justice and the Judicial Economy215

70.Best Placed Courts215

71.Difficulties and Costs of Applying Foreign Laws216

72.Recognition and Enforcement of Judgments on Foreign IPRs:Voluntary Compliance and Vicious Circle218

73.Recognition and Enforcement of Judgments on Foreign IPRs:Public Policy Exception and International Mandatory Rules of the Country that Granted the Right221

74.Recognition and Enforcement of Judgments on Foreign IPRs:already Existing Rules and Tendency in Favor of Recognition and Enforcement,Issue Preclusion and Res Judicata231

75.Amendment of Registers235

76.Forum Non Conveniens and Special Circumstances Test238

Chapter Ⅵ:Exclusive Jurisdiction Rules Imply a Denial of Justice and Violate the Fundamental Human Right of Access to Courts245

Ⅰ.Introduction245

77.Premise245

78.Denial of Justice245

79.Forum Necessitatis247

80.Hierarchy of the Sources of Law256

81.Forum Necessitatis in the EU Brussels System258

82.Exclusive Jurisdiction in the EU Brussels System263

Ⅱ.The Fundamental Human Right of Access to Courts264

83.Origin and Nature264

84.Characterisation267

85.Civil Proceedings268

86.Restrictions of the Right of Access to Courts269

87.Restrictions Imposed by International Jurisdiction Rules271

88.Alternative Means of Recourse in the Forum State rather than in Third States276

89.Exclusive Jurisdiction Rules and the Right of Access to the Court280

Ⅲ.Exclusive Jurisdiction Rules are Contrary to the Public International Law Rules on the Denial of Justice and on the Fundamental Human Right of Access to Courts281

90.Exclusive Jurisdiction Rules and Denial of Justice281

91.Exclusive Jurisdiction Rules and the Fundamental Human Right of Access to Courts286

92.Solutions of a PIL and Human Rights Nature287

93.Analogy of the Conclusions Regarding the Relation between the Exclusive Jurisdiction Rules and the Fundamental Human Right of Access to Courts to the Conclusions Regarding the Relation between the same Exclusive Jurisdiction Rules and the Denial of Justice/Forum Necessitatis Rules290

Ⅳ.Declining of Jurisdiction and International Responsibility290

94.Remedies for Denial of Justice290

95.Remedies for Violation of the Fundamental Human Right of Access to Courts292

Chapter Ⅶ:General Conclusions295

96.Conclusions295

97.EU IPRs and European Unified Patent Judiciary298

98.Preventing Economic Inequalities in Litigation in Favour not only of the IPRs Owners but of those with the Potential to Infringe IPRs as well299

99.Forum Shopping300

Bibliography303

Tables of Cases330

Table of Treaties,Conventions and Other Instruments336

Index339