Voda v. Cordis

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Transcript Voda v. Cordis

INTELLECTUAL PROPERTY RIGHTS
AND EXCLUSIVE (SUBJECT MATTER)
JURISDICTION: BETWEEN PRIVATE
AND PUBLIC INTERNATIONAL LAW
Benedetta Ubertazzi
Full Tenured Assistant Professor of International Law, Faculty of Law, University
of Macerata
Research Fellow, Von Humboldt Foundation Fellowship for Experienced
Researchers (Host Institute: Max Planck Institute for Intellectual Property and
Competition Law, Munich)
Introduction
In the recent past, prestigious Courts around the world have
refused to adjudicate cases related to foreign registered or
unregistered IPRs when the case involved claims of either
INFRINGEMENT of a foreign
IPR
INVALIDITY of a foreign
IPR, when such claim was
raised by either
a defendant in an
IPR infringement
action
a claimant in a
declaratory action
to establish noninfringement
Reasoning
In these cases, the refusal to
adjudicate the foreign IPRs
infringement and validity
claims on the ground that the
court which granted the right
should hear the claim
A Quick Note about Exclusive Jurisdiction and
Subject Matter Jurisdiction
• Procedurally, these cases differ on whether
the case was dismissed because there was a
direct limitation on jurisdiction (exclusive
jurisdiction) or an indirect limitation on
subject matter.
• However, they reach the same practical result
– the court dismissed the case in favor of the
court of the state which granted the right.
Among those important decisions
grounded on exclusive subject matter
jurisdiction are:
Note: Because the Gallo decision adopted the reasoning of the Lucasfilm case, the two cases will not be
addressed separately here.
Voda v. Cordis
Voda (cont’d)
• The Voda case involved an invention of Dr.
Voda: a cardiac guide catheter with a unique
shape that improved its function.
Voda (cont’d)
• Voda obtained patents in several countries
related to this single invention.
U.S.
Italy
EPO
Germany
U.K.
France
Canada
Voda (cont’d)
• Before Voda’s patents issued,
Cordis marketed and sold
guiding catheters with an almost
identical design all over the
world.
• Once the patents issued, Cordis
continued to sell its catheters,
but with a slightly modified
design.
• However, Voda believed the
design still infringed his patent.
While Voda believed that Cordis was infringing its
patents throughout the world, he had many reasons
for wanting to litigate in the U.S.:
Plaintiff,
Voda, was
a U.S.
citizen
Defendant,
Cordis, was
a U.S. based
entity
Cordis was
infringing
U.S. patents
Eventually, Voda filed an infringement suit against Cordis in U.S.
federal court, claiming infringement of both U.S. and “foreign”
patents.
Voda’s patents
allegedly infringed by
Cordis
U.S.
Patents
U.S.
Patent No.
5,445,625
U.S.
Patent No.
6,083,213
Foreign Patents stemming from
common patent application (PCT)
U.S.
Patent No.
6,475,195
European
Pat. No. 0
568 624
British
Pat. No.
GB 568
624
French
Pat. No.
FR568624
German
Patent No.
DE 69 23
20 95
Canadian
Pat. No.
CA
2,100,785
Cordis did not object to Voda’s claim of U.S. patent infringement, but
opposed Voda’s infringement claims concerning the European, British,
Canadian, French and German patents, arguing that the court lacked subject
matter jurisdiction over such claims.
Voda’s patents
allegedly infringed by
Cordis
U.S.
Patents
U.S.
Patent No.
5,445,625
U.S.
Patent No.
6,083,213
Foreign Patents stemming from
common patent application (PCT)
U.S.
Patent No.
6,475,195
European
Pat. No. 0
568 624
British
Pat. No.
GB 568
624
French
Pat. No.
FR568624
German
Patent No.
DE 69 23
20 95
Canadian
Pat. No.
CA
2,100,785
The Federal Circuit Court
of Appeals accepted
Cordis’ argument, and
thus refused to examine
Voda’s foreign patent
infringement claims.
Lucasfilm Entertainment Co. v.
Ainsworth
Lucasfilm (cont’d)
• The Lucasfilm lawsuit centered
around replica Stormtrooper
helmets.
• In 1976, Mr. Ainsworth, the
defendant, was hired to produce
the final plastic versions of the
original Stormtrooper helmets for
the first Star Wars movie, based
on original designs and artwork
by Ralph McQuarrie and a clay
model by Nick Pemberton.
Stormtrooper helmets created by Ainsworth
for the first Star Wars film
Example of Ralph McQuarrie’s original artwork
Example of Ralph McQuarrie’s original artwork
Nick Pemberton’s clay mold
Lucasfilm (cont’d)
• Nearly 30 years later, in
2004, Ainsworth began
making replica Star Wars
costumes and selling them
online.
• He claimed that the replica
Stormtrooper helmets were
made using the original
mould that he created to
make the plastic versions
for the movie.
Ainsworth’s Website
• [link to website]
Lucasfilm (cont’d)
• While Ainsworth was located
in the UK and his replicas were
made in the UK, he advertised
on the Internet and in US
publications and made sales of
the helmets to US customers
in the US.
• Under US copyright law,
Ainsworth’s actions
constituted an infringement of
Lucasfilm’s US copyrights.
Connections to the U.K.
Ainsworth
domiciled in
the U.K.
The infringing
acts were
perpetrated
from the U.K.
• Article 2 EU Brussels I
Regulation: general
jurisdiction criterion
• Article 22.4 EU Brussels I
Regulation: exclusive
jurisdiction does not cover
unregistered IPRs
Lucasfilm
US Court Case
Place of
Lawsuit
Claims
U.S. Court
Infringement of
U.S. Copyrights
Court’s
Holding
Default
judgment-$20
million dollars
-Lucasfilm first sued in a U.S. court Ainsworth and his production company, both
domiciled in the United Kingdom, claiming that the defendants had infringed the
plaintiff’s U.S. copyrights with respect to a number of works created for the first
Star Wars film.
-As the defendants did not appear before the court, the U.S. court rendered
default judgment in favor of the plaintiff condemning the defendant for infringing
the plaintiff’s U.S. copyrights.
-The court awarded Lucasfilm $20 million USD in damages.
Lucasfilm
UK Court of Appeals
Place of
Lawsuit
Claims
Court’s Holding
Enforcement of U.S.
judgment
Refused to enforce for
lack of personal
jurisdiction over the
defendant
Infringement of U.S.
Copyright
Refused to hear claim,
because foreign IPRs not
enforceable in the UK
UK Court of Appeal
-Lucasfilm then initiated a second proceeding against Ainsworth, this time in the UK.
-It first sought to enforce its U.S. judgment against Ainsworth.
-The U.K. Court of Appeal denied this enforcement request, stating that since “the mere selling of goods
from country A into country B does not amount to the presence of the seller in country B,” the U.S. Court
did not have personal jurisdiction over Ainsworth.
-In response, Lucasfilm asked the U.K. court to start a new proceeding on the merits to “enforce the U.S.
copyright” directly in the United Kingdom.
-However, the U.K. Court of Appeal denied this request as well, holding that foreign IPRs are not
enforceable in the United Kingdom.
Lucasfilm
UK Supreme Court
Place of
Lawsuit
Claims
Court’s Holding
Enforcement of U.S.
judgment
This issue was not pursued on
appeal and therefore was not
addressed by the UK
Supreme Court
Infringement of U.S.
Copyright
The Supreme Court ruled
that English courts DO have
jurisdiction to hear claims
concerning infringement of
foreign copyrights
UK Supreme Court
-On appeal, the UK Supreme Court held that foreign copyright infringement claims
can be heard in English courts, reversing the Court of Appeals’ decision on this
point.
Lucasfilm
UK Supreme Court
The holding of the UK Supreme Court is limited to
claims of infringement, not validity, of foreign IPRs that
do not depend upon government action for their
existence
The court stated that “the issue
on this appeal is a very narrow
one because the appellants do
not take issue with the
application of the Moçambique
rule to intellectual property so
far as it is limited to patents and
other intellectual property
rights dependent on the grant
or authority of a foreign State,
and to cases where what is in
issue is the validity of the
patent, as opposed to its
infringement
Lucasfilm
UK Supreme Court
However, the reasoning underlying the
Supreme Court decision can be extended to
claims of infringement of ALL TYPES of
foreign IPRs, registered or unregistered
Lucasfilm
UK Supreme Court
Reasoning of UK Supreme Court
Local Action
Doctrine
(Moçambique
rule)
The local action
doctrine does not
prevent courts from
hearing infringement
claims involving
foreign copyrights
Act of State
Doctrine
The granting of an
IPR is NOT an Act of
State
Even if granting
of an IPR
was Act of State,
would not apply to
copyrights,
which exist without
any gov’t action
Policy
“Modern trend”
in favor of
enforcing
foreign IPRs,
including
established
EU policy
No policy
justifications
for refusing
to enforce
foreign
copyrights
The Gallo Decision
The Gallo Decision
• 5 Plaintiffs (GALLO) issued summons
against defendant “STING Music”
domiciled in South Africa
• GALLO claims protection of copyright
over musical “Umoja”, created by the
plaintiffs in developing the South
African folklore (i.a. “Mine Workers
Gumboot Dance” and other kinds of
tribal dances)
• The plaintiff alleges infringement by
STING performing the musical in
Africa and 19 other countries
“
“Mine Workers
Gumboot Dance”
Performance in UMOJA
Africans performing on
the street
Mine workers communicating through
codified tap
“Gumboot Dance”
Africans performing on the Street
Performance in Umoja
Connections to South Africa
The plaintiffs
were located
in South
Africa
The
defendants
were in
South Africa
The case
involved
South
African
copyrights
Some of the
alleged
infringement took
place in
South Africa
The ECJ (CJEU) GAT decision
The GAT Decision
• Both GAT and LuK were companies
established in Germany and were
competitors in the field of
automobile technology.
• GAT placed a bid for a contract to
supply mechanical damper springs
to a motor vehicle manufacturer,
which was also established in
Germany.
• LuK alleged that the spring which
was the subject of GAT’s bid
infringed two of LuK’s French
patents and informed the motor
vehicle manufacturer of this
allegation.
There were many reasons for wanting to
litigate this dispute in Germany:
The patent
owner, LuK, was
located in
Germany
The potential
infringer, GAT,
was located in
Germany
The potential
purchaser of the
infringing products
was also
headquartered in
Germany
GAT (cont’d)
Plaintiff
GAT
ECJ
Defendant
Type of
Action
Court
LuK
Under Article 16.4, can court
exercise jurisdiction over foreign
patents?
Declaratory Judgment
for
NONINFRINGEMENT
and VALIDITY
German Court of First
Instance (Düsseldorf)
French
patents
valid and
infringed
German Court of
Appeals
(Oberlandesgericht
Düsseldorf)
The German Court asked the ECJ whether the text of 16.4 also
included validity issues, incidentally raised.
Text of Article 16.4 of
the Brussels
Convention
‘The following courts shall have exclusive
jurisdiction, regardless of domicile:…
4.
in proceedings concerned with the
registration or validity of patents, trade
marks, designs, or other similar rights
required to be deposited or registered, the
courts of the Contracting State in which the
deposit or registration has been applied for,
has taken place or is under the terms of an
international convention deemed to have
taken place
ECJ’s Interpretation of the
Text
The ECJ stated that “the rule of
exclusive jurisdiction laid down [by
Article 16.4 of the Convention] . . .
concerns all proceedings relating to
the registration or validity of a patent,
irrespective of whether the issue is
raised by way of an action or a plea in
objection.
- As such, the German Court did not have jurisdiction to hear validity claims
relating to the French patents, no matter how the claims were raised.
- However, it could hear claims related to infringement of foreign IPRs.
Plaintiff
GAT
ECJ
Defendant
Type of
Action
Court
LuK
Under Article 16.4, courts
of granting State have
exclusive jurisdiction with
respect to validity but not
infringement
Declaratory Judgment
for
NONINFRINGEMENT
and VALIDITY
German Court of First
Instance (Düsseldorf)
French
patents
valid and
infringed
German Court of
Appeals
(Oberlandesgericht
Düsseldorf)
Validity
Infringement
French Court
•Both the Act of State Doctrine
and Comity hold that courts
should not unreasonably
interfere with other sovereign
states.
•The Act of State doctrine
‘requires that, in the process of
deciding, the acts of foreign
sovereigns taken within their
own jurisdictions shall be
deemed valid.’
• The territoriality principle
implies that “independence of
each country’s
sovereign…system for
adjudicating” its IPRs.
Doctrines underlying the courts’ decisions
Basis for decision
Voda
Lucasfilm
GAT
Act of State/Comity
✔
✔
✔
Territoriality
Principle
✔
✔
✖
• All three Courts based their decision on the act of State doctrine and comity.
• However, the GAT decision did not adopt the territoriality principle as a basis
for its decision.
• As a result, the GAT decision reached a different result with
respect to both the type of claims and the type of rights over
which the courts of the granting state had exclusive
jurisdiction.
Exclusive
Jurisdiction?
Type of Claims
Infringement?
Validity?
Type of Rights
Registered
Rights?
Unregistered
Rights?
Exclusive jurisdiction rules established by these
decisions - infringement and validity claims of
registered and unregistered rights
Exclusive Jurisdiction in the Court of the
State that granted the right?
Voda
Lucasfilm
GAT
Registered Rights
Yes
Yes
NO
Unregistered rights
Yes
Yes
NO
Principally
Raised
Yes
Yes
Yes
Incidentally
Raised
Yes
Yes
Yes
Principally
Raised
Yes
Yes
NO
Incidentally
Raised
Yes
Yes
NO
Infringement
Registered
Rights
Validity
Unregistered
Rights
Arguments against applying Act of State/Comity
to find Exclusive Jurisdiction in IPRs cases
The granting of
an IPR is NOT an
Act of State
IPRs are not an expression of
the sovereignty or local
policies of their granting or
recognizing States but are
“private rights,” albeit where
registered, that come into
being with conditions of
formalities, namely through an
administrative act.
Arguments against applying Territoriality Principle to
find Exclusive Jurisdiction in IPRs cases
The Territoriality
Principle is not
applicable to the
granting of IPRs
The territoriality
principle is a
principle of
substantive law.
It has nothing to do
with conflicts of
jurisdiction or
conflict of laws.
Argument against the Voda, Lucasfilm, and GAT
decision developed in this Paper
Such exclusive
jurisdiction rules are
actually rendered
illegal by the
following principles
of public
international law
Denial
of
Justice
Forum
Necessitatis
Human
RightAccess
to
Courts
The concept of “denial of justice” is encompassed within Forum Necessitatis/”jurisdiction by
necessity” and so this presentation will focus on the other two principles. However, all three are
addressed separately in my paper.
Forum Necessitatis/ Jurisdiction by
Necessity
• To avoid denial of justice to
both alien and citizens,
general public international
law requires States lacking
international jurisdiction
over a case to nonetheless
exercise jurisdiction by
necessity by adopting the
doctrine or principle of
forum
necessitatis/“jurisdiction by
necessity”.
• In the European Union, the
doctrine of forum
necessitatis was adopted by
a series of rules.
• At the domestic level, forum
necessitatis has been
adopted by both EU and nonEU member States.
Forum
Necessitatis
Required by
Public
International
Law
Adopted by
the EU
Domestic
adoption by EU
member (and
non-EU
member)
States
Forum Necessitatis-requirements
The case must
have some
connection to
the forum State
The exercise of forum
necessitatis is generally
conditioned upon two
requirements
It must be
unreasonable/in
efficient to bring
proceedings
abroad.
First Requirement – “connection”
The exercise of
forum
necessitatis is
generally
conditioned upon
two requirements
“Connection”
“Unreasonable/
inefficient”
-General consensus: required
“connection” exists at least
when the plaintiff is domiciled
or habitually resident in the
forum State, or even when he
is a citizen of that State.
-However, any other contacts
with the forum State may be
relevant, depending on the
circumstances
Second Requirement –
Unreasonable/Inefficient
The exercise of
forum
necessitatis is
generally
conditioned upon
two requirements
“Connection”
“Unreasonable/I
nefficient”
Exclusive jurisdiction rules
require IPR litigants to engage
in duplication of proceedings,
which is both “unreasonable”
and “ineffective,” thereby
meeting the second
requirement for forum
necessitatis.
Second Requirement –
Unreasonable/Inefficient
Duplication of
proceedings is
“unreasonable”
and “inefficient”
for at least two
reasons:
COST
Risk of
Divergent
Outcomes
Duplication of Proceedings - Cost
The first reason that duplicating proceedings is unreasonable
is that it dramatically increases costs, as shown by a recent
study.
Today, between 146 and 311
patent infringement cases are
being duplicated annually in EU
member states.
By 2013, that number is likely
to increase to between 202 and
431 duplicated cases.
Total private savings from
having access to a unified
patent proceeding would be
between EUR 148 and 289
million.
Economic-Cost Benefit Analysis of a Unified and Integrated European patent Litigation System
Duplication of Proceedings – Cost
Country
Average Cost – First
Instance
Average Cost –
Second Instance
TOTAL
Germany
€50.000-250.000
€90.000-200.000
€140.000-450.000
France
€50.000-200.000
€40.000-150.000
€90.000-350.000
The Netherlands
€60.000-200.000
€40.000-150.000
€100.000-350.000
United Kingdom
United States
€150.000-1.500.000 €150.000-1.000.000 €300.000-2.500.000
$3,000,000
$1,000,000
$4,000,000
Duplication of Proceedings – Divergent
Outcomes
The second reason that duplicating proceedings is unreasonable is
the strong risk of divergent outcomes.
This risk is well illustrated by the following 3 cases involving
European patents.
The Epilady
Case
The Senseo
Case
The EURO
Case
Quick Summary of European Patent
System
Patent
applicant files
- Under the European Patent
system, a single patent
application is filed and the
applicant can select the
member countries in which
he wants patent protection
- However, the patent owner
does not receive a unitary
patent right, but rather a
bundle of national rights,
each of which is governed
and must be enforced
according to the national
laws of the domestic states
European
Patent
application X
Italy
Spain
France
The
Netherlands
The U.K.
Infringement
and Validity
Infringement
and Validity
Infringement
and Validity
Infringement
and Validity
Infringement
and Validity
The Epilady Case
The first case involves an invention for a “hair remover for use on
ladies’ legs”.
1986
Epilady was awarded a European patent for its hair removal invention
Epilady subsequently marketed its product in 11 EPC countries
1988
Remington, a competitor, entered the European market with “Smooth
and Silky” a device that performed the exact same function as the
Epilady, but with a slightly different mechanism
The Epilady Case
• Epilady used a rotating spring system whereas
Smooth and Silky used rotating metal discs.
Epilady
Remington
The Epilady Case
• Epilady alleged that Remington’s design infringed its
European patent
• As a result, Epilady brought infringement actions against
Remington in seven European countries
Countries where Epilady sued
Remington for Infringement
Austria
Belgium
Germany
France
Italy
The
Netherlands
The UK
The Epilady Case
- Because each of these national patents issued from the same European patent, the
findings of the national courts should have been consistent with respect to
infringement.
- In fact, they were almost evenly divided between infringement and noninfringement
Epilady sued Remington for
infringement
The Senseo Case
2) The plaintiffs
were able to
receive a
European patent
for assembling
containers,
pouches, and
pads “for the use
in a coffee
machine for
preparing coffee”.
1) Sara Lee, one of the plaintiffs
in the second case, developed
and marketed the Senseo coffee
machine, which makes
individual cups of coffee using
circular pads inserted into the
machine by the user.
3) Once the coffee
maker became
more successful,
however, other
companies began
selling circular
pads that could be
used to make
coffee in the
Senseo coffee
maker.
The Senseo Case
Validity before
the EPO
Infringement
actions
Senseo patent
Competitors
Belgium
Competitors
The
Netherlands
-Sara Lee then began initiating infringement proceedings against its European
competitors.
- Around this time, one of those competitors challenged the validity of the patent
before the EPO.
- Before the EPO made a decision on validity, however, Sara Lee pursued
infringement actions in the Netherlands and Belgium.
Sara Lee infringement suits against
producers of competitive products
The Senseo Case
INVALIDATED
Competitors
Belgium –
INFRINGEMENT
Infringement
actions
Senseo patent
Competitors
The Netherlands – NO
INFRINGEMENT
- Ultimately, the patent was INVALIDATED by the EPO.
- However, that did not prevent the competitors in Belgium from having to
pay the damages that were awarded prior to the invalidation of the patent.
The EURO Case
- The third case involves anti-counterfeiting technology and EURO
bank notes.
- It is a strong illustration of both the cost and the risk of divergent
outcomes that litigants can face as a result of exclusive jurisdiction
rules.
The EURO Case
-The plaintiff in this case was Document Security Systems, Inc. (“DSS”), an American
company, which held a European patent for a method related to anti-counterfeiting
measures for paper products.
-DSS believed that this technology was being used to incorporate security measures into
EURO bank notes.
The above shown anti-counterfeiting technology is similar (but not exact) to the technology
claimed by DSS and allegedly infringed by the EURO note.
The EURO case
Web of suits between
DSS and the European
Central Bank (“ECB”)
Plaintiff
Defendant
Type of
Action
Place of
Action
DSS
ECB
ECB
DSS
Infringement
Invalidity
CFI
Austria
Belgium
Germany
France
Italy
Luxembour
g
The
Netherlands
-In 2005, DSS sued the European Central Bank for infringement before the
European Court of First Instance (CFI)
-In response, the ECB filed invalidity actions in several European countries.
U.K.
The EURO Case
• Ultimately, the CFI declared DSS’
infringement action inadmissible because it
considered national courts to have exclusive
jurisdiction to decide whether national
patents were infringed.
• However, the ECB’s invalidity challenges
remained.
The EURO case
Decisions with respect to validity
of DSS’ patent
Country
Austria
Belgium
France
Germany
Italy
Luxembourg
Netherlands
UK
First
Instance
Second
Instance
In this case, you can clearly see the time, cost and risk of divergent opinions
that results from duplication of proceedings.
The iPad Case
(Exclusive Jurisdiction)
Vs.
Apple
iPhone
Vs.
Samsung
Galaxy Phone
Apple
iPad
Samsung
Galaxy
Tablet
• Apple, an American company, and Samsung, a South Korean company, are both
technology producers.
• Samsung provides component parts for many of Apple’s products, including the iPhone
and iPad, allegedly selling $5.9 billion in component parts to Apple in 2010.
• However, Samsung is also an Apple competitor, with its Galaxy line of products including
smart phones and tables that compete with the iPhone and iPad.
•In 2011, Apple accused Samsung’s Galaxy line of products of infringing upon its IPRs.
•In 2012, a number of suits and countersuits between Apple and Samsung have been
made.
The iPad Case
(Exclusive Jurisdiction)
• This has ultimately led to a firestorm of suits and
countersuits between Apple and Samsung, involving
multiple patents and trademarks registered all over the
world.
• Because of exclusive jurisdiction rules, however, the
companies could not pursue their claims in a single
proceeding.
• Instead, they must file suit in each country where the
individual IPRs are registered.
The iPad Case
(Exclusive Jurisdiction)
Apple
United States
District Court
of Northern
California
Samsung
•First, on April 18, 2011, Apple sued Samsung in U.S. federal court, alleging that
Samsung’s Galaxy line of smart phones and tables ‘slavishly copied’ Apple’s
IPhone and IPad.
• Apple accused Samsung of patent, trademark, and trade dress infringement.
The iPad Case
(Exclusive Jurisdiction)
United States
District Court
of Northern
California
Apple
Germany
Samsung
Japan
South Korea
• Samsung responded by filing patent infringement lawsuits against Apple
in South Korea, Japan, and Germany.
The iPad Case
(Exclusive Jurisdiction)
This led to even more suits being filed by Apple and Samsung in other
countries throughout the world:
As of July 2012, there were at least 50
lawsuits in 15 courts in 10 countries
pending between Apple and Samsung over
IPR infringement by the Apple iPhone and
iPad and the Samsung Galaxy products.
The iPad Case
Lawsuits as of August 2012 – more than 50 suits
U.S. District Court
of California
U.S. International
Trade Commission
U.S. District Court
of Delaware
Germany
United Kingdom
APPLE
France
Italy
The Netherlands
Spain
Japan
South Korea
Austalia
SAMSUNG
The iPad Case
(Exclusive Jurisdiction)
The On August
24 in the USA, a
judge ruled
Samsung to pay
$1.049 billion to
Apple in
damages.
A week later in
Japan, a court found
Samsung had not
infringed Apple’s
patents and
awarded legal costs
to Samsung.
In South Korea, a
court ruled both
Apple and
Samsung had
infringed each
others patents and
both were to pay
damages.
This shows how divergent outcomes
can be reached.
The iPad Case
(Exclusive Jurisdiction)
The risk of conflicting decisions
associated with exclusive jurisdiction
rules can be seen in the differing
decisions that courts have granted.
Other examples of cases in which exclusive jurisdiction
would lead to duplication of proceedings
• Gallo v. Sting Music – 19 relevant jurisdictions
• Boosey & Hawkes Music Publishers, Ltd. v.
Walt Disney Co. – 18 relevant jurisdictions
• Voda v. Cordis – 6 relevant jurisdictions
• Roche case– 9 relevant jurisdictions
• Apple Inc. v Samsung Electronics Co. Ltd. – 10
relevant jurisdictions
Fundamental Human Right of
Access to a Court
Public international law
grants, to both aliens
and citizens alike, the
fundamental human
right of access to
courts
It has also been
explicitly adopted by
the EU.
Some countries, both
EU and non-EU
Members, have
adopted the doctrine
domestically
Universal
International Norms
Regional
International Norms
European Union
Domestic Adoption
•Article 8, Universal Declaration of
Human Rights
•Article 2.3, International Covenant of
Civil and Political Rights
•Article 6.1, European Convention for
the Protection of Human Rights and
Fundamental Freedoms
•Article 8, American Convention on
Human Rights
•Article 47, Charter of Fundamental
Rights of the EU
•Article 6.1- 6.3, Treaty of Lisbon
•EU Countries: Austria, Finland, Germany,
Italy, Spain, and the Netherlands
•Non-EU Countries: Australia, Brazil,
Canada, Colombia, Japan, Mexico, Russia,
South Africa, Switzerland, and Turkey
• U.S.: equivalent right of Due Process
Fundamental Human Right of
Access to a Court
Universal
International Norms
Regional
International Norms
European Union
Domestic Adoption
•Article 8, Universal Declaration of
Human Rights
•Article 2.3, International Covenant of
Civil and Political Rights
•Article 6.1, European Convention
for the Protection of Human Rights
and Fundamental Freedoms
•Article 8, American Convention on
Human Rights
•Article 47, Charter of Fundamental
Rights of the EU
•Article 6.1- 6.3, Treaty of Lisbon
•EU Countries: Austria, Finland, Germany,
Italy, Spain, and the Netherlands
•Non-EU Countries: Australia, Brazil,
Canada, Colombia, Japan, Mexico, Russia,
South Africa, Switzerland, and Turkey
This presentation will
focus on the
fundamental human
right of access to court
as established by
Article 6 of the
ECHR and interpreted
by the ECtHR, as the
ECHR is considered to
be the most advanced
international system for
the protection of
fundamental human
rights.
Fundamental Right of Access to
Court – Article 6 of ECHR
Article 6 – ECHR
“[I]n the determination of
his civil rights and
obligations…everyone is
entitled to a fair and public
hearing within a reasonable
time by an independent
and impartial tribunal
established by law.”
Article 6 does not
expressly guarantee
the right of access to
courts.
However, decisions of
the ECtHR have
established that the
denial of access to
domestic courts can
amount to a breach of
Article 6.
Article 6 – Relevance
General Relevance
Does Article 6 of the ECHR give rise to a general
principle of international or European law?
YES
General Principle of
EU Law
Explicitly rendered by Article 6.3 TEU
and relevant ECJ case law
General Principle of
International Public
Law
For the same reasons, mutatis
mutandis, that forum necessitatis is a
general principle of international law
As such, as a
general principle
of public
international law
and of EU law, the
right of access to
courts has a direct
effect and prevails
over domestic
rules, EU
secondary (at
least) norms, and
international
conventions.
Article 6 - Obligation
Article 6 imposes on its member states a nonhorizontal, positive, and procedural obligation of
result.
Nonhorizontal
Does not protect rights
holder against
interference from private
parties, but State itself
Positive
Requires state to take
“positive” action to
facilitate access to
court, not just refrain
from action
Procedural
Operates at procedural
level of adjudication,
rather than the
substantive level
Article 6 – Relevance
Relevance to IPRs
An additional question is whether administrative proceedings related to the granting of registered IPRs
fall within the category of proceedings related to “civil rights,” and thus within the scope of Article 6?
Other
registered
IPRs
Patents
Human Rights Commission –
“While there is no doubt that
patent rights, once granted,
must be considered as civil
rights…” Article 6 does not
encompass proceedings
between private persons and
administrative organs related to
“the registration of patents”
HOWEVER, this jurisprudence has
been overruled by subsequent
case law at the ECtHR with respect
to patents and designs
In these cases, the ECtHR decided
that administrative proceedings for
patents and design, which are
decisive for registration, involve a
determination of civil rights within
the meaning of Article 6..
The new ECtHR case law may be extended to all
other registered IPRs.
Budweiser – applicant
for TM owned a set of
proprietary rights
(same reasoning as
patents, extendable to
all IPRs)
Presumed
ownership in IPRs
systems
Disputes between private
persons and State do not
concern execution of
sovereign powers (as
previously discussed)
Article 6 - Restrictions
The right of access to courts, however, is not an absolute right and
certain restrictions on this right are permitted.
States may establish
regulations limiting
access in accordance
with a certain “margin
of apperciation” of the
“needs and resources
of the community and
of its individuals”.
However, such
limitations are
subject to the
oversight and
control of the
ECtHR.
Article 6 - Restrictions
According to the jurisprudence of
the ECtHR, to be lawful,
restrictions on access to courts
imposed by States must:
1) Be
established by
law
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
Article 6 - Restrictions
According to the jurisprudence of the
ECtHR, to be lawful, restrictions on
access to courts imposed by States
must:
1) Be
established by
law
To meet this requirement, the
restriction must
•“have some basis in domestic law”
•“accessible to the person
concerned”
•“compatible with the rule of law”
•be “consistent, clear, precise, [and]
foreseeab[le]”
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
Article 6 - Restrictions
According to the jurisprudence of the
ECtHR, to be lawful, restrictions on
access to courts imposed by States
must:
1) Be
established by
law
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
Advantages considered legitimate by ECtHR
include:
•Advantages for the individual concerned
•Advantages for the administration of justice
•Compliance with public international law
•Cooperation between legal systems
Article 6 - Restrictions
According to the jurisprudence of the
ECtHR, to be lawful, restrictions on
access to courts imposed by States
must:
1) Be
established by
law
2) Have a
legitimate aim
3) Respond to
the principle of
proportionality
•According to jurisprudence, restrictions are
proportionate when they realize a fair balance between
the limits to the right of access to courts and the aim
sought to be achieved by the restrictions.
•To be considered proportionate, the applicants
must have available to them reasonable alternative
means to protect their rights and these means
must be effective.
Article 6 - Restrictions
This ECtHR jurisprudence raises
several questions:
Article 6 – International
Jurisdiction
Questions 1: Is a Member State of the ECHR in breach of Article 6
when such State’s courts refuse to try a case on the grounds
that they do not have international jurisdiction according to the
relevant applicable international jurisdiction rules?
Article 6 – International
Jurisdiction
Questions 1: Is a Member State of the ECHR in breach of Article 6 when such
State’s courts refuse to try a case on the grounds that they do not have
international jurisdiction according to the relevant applicable international
jurisdiction rules?
General Rule
Limitations
• A domestic court must adjudicate a case,
even when it would not generally do so
according to its international procedure
norms, when its declining of jurisdiction
would violate the right of access to a court.
•Article 6 obliges Member States, in
principle, to grant access to their courts
whenever a case is sufficiently and not
fortuitously linked to the forum state.
• However, Member States can restrict right
of access to their courts but only when the
following four requirements are met:
•Restrictions are established by law
and sufficiently clear
•Pursue a legitimate aim, which is only
the case when they comply with public
international law.
•Proportionate to the aim pursued
•The applicant can protect his or her
rights through the use of other
reasonable and effective alternative
means of recourse.
Article 6 – International
Jurisdiction
Question 1: Is a Member State of the ECHR in breach of Article 6 when such
State’s courts refuse to try a case on the grounds that they do not have
international jurisdiction according to the relevant applicable international
jurisdiction rules?
ECtHR
Rulings
In Principal
• The ECtHR has maintained that IN
PRINCIPAL a member state’s international
jurisdiction rules can violate Article 6 of the
ECHR.
In Practice
• IN PRACTICE, however, the ECtHR has
involved certain “peculiarities” or
circumstances to deny that a breach of
Article 6 occurred.
•These findings appear criticizable for being
grounded on reasoning of a political nature
Article 6 – International
Jurisdiction
The following are ECtHR cases in which
the member state’s jurisdiction rules
were approved.
These cases are covered to present a
systematic reconstruction of the
principals emphasized by the ECtHR
that are relevant to whether exclusive
jurisdiction rules violate the right of
access to courts
Article 6 – International
Jurisdiction
The following are ECtHR cases in
which the member state’s
jurisdiction rules were approved.
These cases are covered to
present a systematic
reconstruction of the principals
emphasized by the ECtHR that are
relevant to whether exclusive
jurisdiction rules violate the right
of access to courts.
The first two
cases deal
with a right of
access to
court of a
State’s citizen
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
A dual
Turkish and
German
citizen
Breach of
Contract
Germany
An Iraqi Bank
Sued
Cause of Action
Place of Court
Defendant
Plaintiff
In
For
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
Court
German Court
Holding
No Jurisdiction
Reasoning
German nationality
of Plaintiff does not
provide sufficient
link for jurisdiction
to hear the case
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
Question
for ECtHR -
Court
Does German
Court’s holding
violate German
citizen’s right of
access to court?
German
Court
Holding
NO
JURISDIC
TION
Reasoning
German
nationality of
Plaintiff does
not provide
sufficient link for
jurisdiction to
hear the case
Article 6 – International
Jurisdiction
Bayrak v. Germany, App. No. 27937/95 Eur. Ct. H.R. (2000)
ECtHR – German
Court decision
DOES NOT violate
German citizen’s
right of access to
court
Right of access to court “does
not imply an unlimited right to
choose the competent court”
Germany’s international
jurisdiction rule is not arbitrary,
but rather is established by law
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
Plaintiff
Prince HansAdam II of
Liechtenstein
Defendant
Municipality
of Cologne
Place of Court
Germany
Cause of Action
Requested painting that
Colonge had borrowed
painting from Czech
Repbulic be turned over
to him.
Claimed the painting had
been illegally confiscated
from his father by the
government of the former
Czechoslovakia in 1946
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
Court
German Court
Holding
No Jurisdiction
Reasoning
Although Prince was
German citizen and
painting in German
territory, statute
precluded German
courts from reviewing
measures carried out
against German citizens
for reparation of war
damages.
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
Question
for ECtHR -
Court
Does German
Court’s holding
violate German
citizen’s right of
access to court?
German
Court
Holding
NO
JURISDIC
TION
Reasoning
Although Prince was
German citizen and
painting in German
territory, statute
precluded German
courts from reviewing
measures carried out
against German citizens
for reparation of war
damages.
Article 6 – International
Jurisdiction
Hans-Adam II v. Germany, App. No. 42527/98 Eur. Ct. H.R.
ECtHR – German
Court decision
DOES NOT violate
German citizen’s
right of access to
court
The limitation on access to court had a legitimate aim
as it was:
•“a consequence of the particular status of Germany
under public international law after the Second World
War” and
•it aimed at realizing “the vital public interest in
regaining sovereignty and unifying Germany.”
Additionally, the limitation was proportionate to the
aim pursued:
Despite earlier holdings that this condition was only
met if reasonable alternative means were available,
the ECtHR found that this case presented
“peculiarities” that excluded the application of such a
restriction
Article 6 – International
Jurisdiction
The following are ECtHR cases in
which the member state’s
jurisdiction rules were approved.
These cases are covered to
present a systematic
reconstruction of the principals
emphasized by the ECtHR that are
relevant to whether exclusive
jurisdiction rules violate the right
of access to courts.
Cases dealing
with a citizen’s
right of access
to court
In a third series of
cases, the ECtHR
dealt with rules
granting immunity
from jurisdiction to
States and
International
Organizations
Article 6 – International
Jurisdiction
Most of the ECtHR
cases regarding a
State’s immunity
from jurisdiction
involved either:
Tort claims related to
employment in a foreign
diplomatic mission
Tort claims for personal injuries
sustained from “state acts”
amounting to torture
Article 6 – International
Jurisdiction
Most of the
ECtHR cases
regarding a
State’s
immunity
from
jurisdiction
involved
either:
Tort claims
related to
employment in
a foreign
diplomatic
mission
Tort claims for
personal
injuries
sustained from
“state acts”
amounting to
torture
In these cases, the
ECtHR paid particular
attention to:
-Whether the State
immunity rules had
a legitimate aim
AND
-Whether the rule
was proportional
to that aim
Article 6 – International
Jurisdiction
Most of the
ECtHR
cases
regarding a
State’s
immunity
from
jurisdiction
involved
either:
Tort claims
related to
employment
in a foreign
diplomatic
mission
Tort claims
for personal
injuries
sustained
from “state
acts”
amounting
to torture
In these cases, the
ECtHR paid particular
attention to:
-Whether the State
immunity rules had a
legitimate aim AND
-Whether the rule
was proportional
to that aim
Here, the Court
determined that it
pursues a
legitimate aim if
the aim is “to
promote comity
and good
relations between
States through
the respect of
another State’s
sovereignty
Article 6 – International
Jurisdiction
Most of the
ECtHR
cases
regarding a
State’s
immunity
from
jurisdiction
involved
either:
Tort claims
related to
employment
in a foreign
diplomatic
mission
Tort claims
for personal
injuries
sustained
from “state
acts”
amounting
to torture
In these cases, the
ECtHR paid particular
attention to:
-Whether the State
immunity rules had a
legitimate aim AND
-Whether the rule
was proportional
to that aim
Here, the Court
has recognized
that rules which
“reflect generally
recognised rules
of public
international law
on State immunity
cannot in
principal be
regarded as
imposing a
disproportionate
restriction on the
right of access to
Court”
Article 6 – International
Jurisdiction
The other relevant immunity cases involve immunity
from jurisdiction for international organizations
The most relevant case on this point is Waite v.
Germany
Article 6 – International
Jurisdiction
Waite v. Germany
The
Plaintiffs
Two BRITISH citizens
who worked and
resided in
GERMANY
While they worked for a British company, they had
been placed at the disposal of the European Space
Agency (ESA) to perform services at the European
Space Operations Center in Germany
Article 6 – International
Jurisdiction
Waite v. Germany
Upon learning that the British company planned to
terminate their employment, the employees/plaintiffs
instituted proceedings against the ESA before a German
Labor Court.
Article 6 – International
Jurisdiction
Waite v. Germany
Arguments
German Labor Court
The
Plaintiffs/Employees
claimed that
pursuant to the
German Provision of
Labor (Temporary
Staff) Act, they had
acquired the status
of employees of the
ESA
The ESA
responded that
its IMMUNITY as
an international
organization
impeded the
exercise of
jurisdiction by the
German Courts
Holding
The German
Court found
that the ESA
had rightly
relied on
immunity and
refused to
exercise
jurisdiction
Article 6 – International
Jurisdiction
Holding
German Labor
Court
The German
Court found
that the ESA
had rightly
relied on
immunity and
refused to
exercise
jurisdiction
Question
for ECtHR -
Does this
violate the
workers’ right
of access to
court?
Article 6 – International
Jurisdiction
The immunity rule for international
organizations has a legitimate aim: the
ECtHR – German
Court decision
DOES NOT violate
workers’ right of
access to court
“attribution of privileges and immunities to
international organizations is an essential
means of ensuring the proper function of such
organizations free from unilateral interference
by individual governments
The rule also was proportional to the aim:
while individuals must have “effective”
“reasonable alternative means” of protecting
their rights under the convention,“ it was
possible to presume that all legal systems,
including the German one, are “in principal”
open to workers seeking redress from the firms
that have employed them and hired them out
(namely the British company)
Article 6 – International
Jurisdiction
Questions 1: Is a Member State
of the ECHR in breach of Article 6 when such
(Review)
State’s courts refuse to try a case on the grounds that they do not have
international jurisdiction according to the relevant applicable international
jurisdiction rules?
General Rule
Limitations
• A domestic court must adjudicate a case,
even when it would not generally do so
according to its international procedure
norms, when its declining of jurisdiction
would violate the right of access to a court.
•Article 6 obliges Member States, in
principle, to grant access to their courts
whenever a case is sufficiently and not
fortuitously linked to the forum state.
• However, Member States can restrict right
of access to their courts but only when the
following four requirements are met:
•Restrictions are established by law
and sufficiently clear
•Pursue a legitimate aim, which is only
the case when they comply with public
international law.
•Proportionate to the aim pursued
•The applicant can protect his or her
rights through the use of other
reasonable and effective alternative
means of recourse.
Article 6 Restriction
Question 2: With respect to the requirement of reasonable
and alternative means of recourse, the question arises
whether this requirement should be read as an alternative
in a third state/international organization or only within the
forum State declining jurisdiction?
Article 6 - Restrictions
Question 2: With respect to the requirement of reasonable and alternative
means of recourse, the question arises whether this requirement should be
read as an alternative in a third state/international organization or only within
the forum State declining jurisdiction?
It is the argument of this presentation that the requirement of
reasonable and efficient means of recourse should be interpreted to
mean access within the forum state, not third states/international
organizations:
Inconsistency
in ECtHR
decisions
Systematic
stricto sensu
interpretation
of Article 6.1
and Article 14
of ECHR
Systematic
teleological
interpretation
of Article 6.1
Systematic lato
sensu
interpretation
of Article 6.1
and
international
jurisdiction
rules
Article 6 – Exclusive Jurisdiction
Question 3: The final question is whether the right of
access to courts can be improperly restricted by
international jurisdiction norms that establish exclusive
jurisdiction in certain fora?
Article 6 – Exclusive Jurisdiction
Question 3: The final question is whether the right of access to courts can be
improperly restricted by international jurisdiction norms that establish
exclusive jurisdiction in certain fora?
All the conclusions
reached with respect to
all other general
international jurisdiction
rules apply, mutatis
mutandis, to exclusive
jurisdiction rules.
No reasons can be
invoked to proscribe this
application.
THUS, exclusive jurisdiction VIOLATES the right of access to courts
because, by their proper nature, they restrict access when the case
does not enter into the exclusive jurisdiction of the state, although it
meets all the requirements necessary to consider the restrictions in
question improper.
Application of forum necessitatis to Voda, Lucasfilm,
and GAT
Voda
Forum Necessitatis
Lucasfilm
(Court of
Appeals)
Violation of
public
international
law
GAT
The public international law rules of forum necessitatis/“jurisdiction by
necessity” will now be applied to exclusive jurisdiction rules in the Voda,
Lucasfilm (Court of Appeals), and GAT cases to show that these decision
violate public international law.
Application of forum necessitatis and doctrine of
Fundamental Right of Access to Court
To demonstrate that exclusive
jurisdiction rules with respect to
adjudication of IPRs violates forum
necessitatis and the fundamental right
of human access to a court, each of
these doctrines will be applied to the
decisions of Voda, Lucasfilm, and GAT.
Because the basis for the decisions in Lucasfilm (Court of Appeals) and Gallo are so similar, only
Lucasfilm will be addressed but the findings are equally applicable to the Gallo decision.
Forum Necessitatis - Voda
1) “proximity”
Both parties were domiciled
in the U.S.
Connections to the U.S.
The case involved
infringement of U.S. and
foreign patents that all
stemmed from the same
invention
Forum Necessitatis - Voda
2) “inefficient”/“unreasonableness”
Voda –
infringement
suits
U.S.
U.K.
France
Germany
Canada
• The U.S. Court of Appeals for the Federal Circuit held that Voda was
required to bring its claims to the courts of each of the foreign States
where the patent had been granted.
• In so holding, the U.S. Court of Appeals required that Voda should
duplicate its proceedings, which was “unreasonable and ineffective,” and
thereby met the second requirement of the denial of justice/forum
necessitatis rule because
Forum Necessitatis – Lucasfilm
(Court of Appeals)
In the Lucasfilm case, the denial of justice was even more
apparent than in Voda.
1) “proximity”
Connections to
the U.K.
The defendants
were domiciled in
the U.K.
The infringing acts
were perpetrated
from the U.K.
Forum Necessitatis-Lucasfilm
(Court of Appeals)
2) “inefficient”/“unreasonableness”
Exclusive
Jurisdiction
U.K. Court
U.S. Court
Won’t
enforce
judgment
Inefficient and unreasoanble
•
•
According to the U.K. Court of Appeal, the United States had exclusive jurisdiction to address the
infringement of U.S. copyrights, but the U.K. court would not enforce the judgment.
By refusing to enforce the judgment of the ordinary competent court, the court rendered access to that
U.S. tribunal ineffective with respect to the United Kingdom and therefore constituted a legal obstacle to
effectively exercise the right of access to U.S. courts.
Forum Necessitatis - GAT
1) “proximity”
Both GAT and LuK were
companies established in
Germany
Connections to Germany
The company to which GAT
was hoping to sell its
potentially infringing springs
was also based in Germany
Forum Necessitatis – GAT
2) “unreasonableness” / “inefficiency”
ECJ
German
Court
Validity
Infringement
French
Court
Following the GAT decision, the German Court had to stay its proceeding while it referred to
the French Court the issue of the French patents’ validity, and after the French Court’s
decision on the validity of the patents, the German Court had to resume the case and
examine the infringement claims, which would have produced a duplication of disputes.
Access to Court - Voda
In the Voda case, the exclusive jurisdiction rules not only impeded Voda’s access to
the U.S. Court with respect to its foreign patent infringement claims, but also
restricted Voda’s fundamental human right of access to the U.S. Courts.
The restriction is improper for the
following reasons
sufficient and
non-fortuitous
link between
case and U.S.
not established
by sufficiently
clear law, but
based on
“implicit” PIL
did not pursue
a legitimate
aim, because
actually illegal
under PIL
not proportionate
– didn’t involve
immunity or
recognized
peculiarities
Access to Court – Lucasfilm (Court
of Appeals)
In Lucasfilm (Court of Appeals), the violation of the right of access to
courts was even more apparent .
The restriction is improper for the
following reasons
sufficient and
non-fortuitous
link between
case and U.K.
not established
by sufficiently
clear law, but
based on
“implicit” PIL
did not pursue
a legitimate
aim, because
actually illegal
under PIL
not proportionate
– while an
alternative means
of recourse in a
third country
(U.S.), it was
clearly ineffective
Access to Court - GAT
Likewise, in the GAT case, the application of exclusive jurisdiction rules
would have impeded access to the German Court and restricted LuK’s
right of access to courts.
The restriction is improper for the
following reasons
sufficient and
non-fortuitous
link between
case and
Germany
not established by
sufficiently clear law –
Art. 16.4 of Brussels
Conv. was not explicit
on this point and prior
decisions indicated
more restrictive
treatment
did not pursue
a legitimate
aim, because
actually illegal
under PIL
not proportionate –
no alternative
means of recourse in
Germany, and
recourse in third
country would mean
duplication of
proceedings
Avoiding violation of public
international law
To avoid violating public international law,
States should follow three different,
concurrent approaches, each of which leads
to the same results.
Avoiding denial of justice and safeguarding
right of access to courts (cont’d)
1) From a De
Lege Ferenda
perspective,
States must
- overrule their explicit
exclusive jurisdiction
provisions, and
-also revisit their case law
according to which exclusive
jurisdiction rules are implicitly
imposed by public
international law.
Avoiding denial of justice and safeguarding
right of access to courts (cont’d)
1) From a De Lege
Ferenda perspective,
states must overrule
their explicit
exclusive jurisdiction
provisions and revisit
case law.
2) From a de
lege lata
perspective
States must
adopt the PIL
solution
- States must search for other PIL
rules that are different and prevailing
over the rules that would otherwise
lead to the declining of jurisdiction.
-Then, States must find these rules in
forum necessitatis, which is a PIL rule
and a general principle of law
- Finally, States must adopt this
forum and thus exercise jurisdiction
by necessity despite exclusive
jurisdiction provisions.
Avoiding denial of justice and safeguarding
right of access to courts (cont’d)
1) From a De Lege
Ferenda perspective,
states must overrule
their explicit
exclusive jurisdiction
provisions and revisit
case law.
2) From a de
lege lata
perspective
States must
adopt the PIL
solution
3) From a De Lege
Lata perspective,
States must adopt
the “human rights
solution.”
- States must recognize the right of access
to courts as a general principle of law, and
this right’s primacy over other international
and domestic rules on exclusive jurisdiction
- Then, the States must recognize that to
decline jurisdiction would constitute a
breach of the right of access to a court.
- Furthermore, States must refer to this
violation “as the ground for not so acting.”
- Finally, States must exercise jurisdiction
despite exclusive jurisdiction provisions.