scholarly journals Russia & Legal Harmonization: An Historical Inquiry into IP Reform as Global Convergence and Resistance

2018 ◽  
Author(s):  
Boris N. Mamlyuk
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
Structural Adjustment ◽  
Historical Analysis ◽  
Historical Inquiry ◽  
Legal Standards ◽  
Wto Accession ◽  
Soviet Russia ◽  
Ip Law ◽  
Legal Harmonization

10 Washington University Global Studies Law Review, (2011)This Article examines several waves of intellectual property (IP) regulation reform in Russia, starting with an examination into early Soviet attempts to regulate intellectual property. Historical analysis is useful to illustrate areas of theoretical convergence, divergence, and tension between state ideology, positive law, and "law in action." The relevance of these tensions for post-Soviet legal reform may appear tenuous. However, insofar as IP enforcement has emerged as one of the largest hurdles for Russia's prolonged accession to the World Trade Organization (WTO), these historical precedents may help explain Russia's apparent theoretical and political disconnect from the WTO. If Russian policymakers and many Western analysts agree that Russia has complied with all necessary structural adjustment reforms for WTO accession (including reforming its IP legislation), then deeper points of contention between Russia and the West must be identified. One point of departure, the Article posits, is Russia's lingering inability to convey adherence to general international law.Thus, this Article re-conceptualizes the link between domestic and international legal orders by connecting the IP debate to broader debates over the nature of international law in the Soviet and post-Soviet space. Specifically, Part I examines how Soviet theorists attempted to reconcile IP regulation with Marxist ideology and socialist international law. Part II surveys the main IP law reform projects in post-Soviet Russia from 1992 to 2006, with particular emphasis on harmonization with global legal standards. The second part also provides a brief comparative analysis of Russia's latest IP law (effective 2008) and copyright protections in U.S. law as well as the 1971 Berne Convention. The Article concludes with an overview of doctrinal debates within Russia over harmonization, WTO accession, and international law. These debates shed light on the development of local resistance to further legal harmonization efforts, an issue of immediate relevance not just for policymakers working with Russia, but for broader law and development debates.

scholarly journals Intellectual Property and International Law: A Research Framework

2021 ◽  
pp. 15-33
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
Legal Research ◽  
Research Framework ◽  
Initial Question ◽  
Research Questions ◽  
Ip Law

This chapter offers a framework for legal research that concerns or applies ‘international law’ concepts, perspectives, and methodologies to intellectual property (IP). The idea is to discuss how research questions related to IP can be framed from the standpoint of international law. This begs an initial question: what do we mean by ‘international law’ and how does this relate to IP? Section I tackles these questions by offering a range of possible views on the notion of international IP Law. Section II then considers how a multidimensional conception of international law can serve to frame research questions on IP. It also gives some more concrete examples of the diversity in adopting an international law approach to IP.

Linkages in International Law Affecting Intellectual Property

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
Global Level ◽  
Berne Convention ◽  
Industrial Property ◽  
Legal Science ◽  
Artistic Works ◽  
Ip Law ◽  
Rule Systems ◽  
Paris Convention

This chapter gives a cursory review of situations where the rules of international intellectual property (IP) law interface with those of other rule-systems in international law. Mapping these relationships is challenging, given the multitude of rules, institutions, and actors in international law. Those have increased dramatically in number since the foundations of international IP law in the form of the Berne Convention (BC) on the Protection of Literary and Artistic Works and the Paris Convention on the Protection of Industrial Property. These interfaces, however, give evidence of a wider phenomenon which is commonly referred to as ‘fragmentation’ on the global level. Such fragmentation has provoked a debate in social, political, and legal science on how to perceive and describe this phenomenon and what responses (in particular in terms of ways to resolve conflicts or tensions between branches of international law) it calls for.

ADJUDGING THE EXCEPTIONAL AT INTERNATIONAL INVESTMENT LAW: SECURITY, PUBLIC ORDER AND FINANCIAL CRISIS

2010 ◽  
Vol 59 (2) ◽  
pp. 325-371 ◽  
Author(s):  
Jürgen Kurtz
Keyword(s):  
Financial Crisis ◽  
International Law ◽  
Historical Analysis ◽  
International Investment ◽  
Public Order ◽  
International Investment Law ◽  
Legal Standards ◽  
Investment Treaty ◽  
The Impact ◽  
The Relationship

AbstractThis article examines the impact of international law on the ability of States to mitigate the effects of financial crises. It focuses on the invocation of investment treaty disciplines in the aftermath of the 2001–2002 Argentine financial crisis, and the adjudication of Argentina's defence of a state of necessity under both subject treaties and at customary international law. The article uncovers three interpretative methods in the jurisprudence on the relationship between the treaty exception and customary plea of necessity: methodologies I (confluence), II (lex specialis) and III (primary-secondary applications). Method I is the dominant approach in the jurisprudence and the most restrictive of the three readings. The article argues that method I is mistaken both on a careful interpretation of the two legal standards and on a broader historical analysis of the emergence of investment treaty norms. Given these substantive flaws, the article isolates the motivations to account for the popularity of this method through a close reading of the awards. These reveal continuing tensions in the field, not least the problematic suggestion that a single value of protection should exclusively inform our understanding of the purpose of investment treaties. These sociological features of investor–State arbitration should, it is suggested, inform our choice on other interpretative methods. This comes down to an election between methods II (lex specialis) and III (primary–secondary applications). Method III is the most convincing and coherent reading of the relationship between the two legal standards. The article concludes by offering a framework to address the key interpretative questions implicated in that method: (a) the identification and scope of the notion of ‘public order’ and a State's ‘essential security interests’; and (b) the appropriate test of ‘necessity’ or means–end scrutiny.

1. An Introduction to Domestic and International Intellectual Property Law

2019 ◽  
pp. 3-35
Author(s):  
Justine Pila ◽  
Paul L.C. Torremans
Keyword(s):  
Intellectual Property ◽  
Property Law ◽  
European Law ◽  
Single Model ◽  
International Network ◽  
Legal Standards ◽  
Legal Traditions ◽  
International Laws ◽  
Laws And Policies ◽  
Ip Law

This chapter commences the discussion of the European law of IP by introducing the domestic and international IP systems that preceded and continue to exist alongside it. It starts with the ‘what, how, and why’ of IP law in general—what it is, how it came to be, and why it exists—and proceeds to consider European IP law as part of an international network of IP laws that, while being a product of the domestic IP laws of individual European states, nonetheless differs from those laws in three related aspects. First, unlike domestic IP laws, many international laws operate by establishing legal standards for states to implement within their own territories rather than by regulating the behaviour of those states’ citizens. Second, the need for international legal communities to accommodate the diverse values and legal traditions of their member states makes their IP laws and policies less likely to reflect a single model or justificatory theory of IP than those of individual countries. And third, a central aim of international European IP communities is to supplement or substitute domestic laws and policies with European laws and policies in pursuit of European objectives, including some that stand in tension with domestic interests, such as the abolition of territorial restrictions on the operation of IP regimes.

The Protection of Intellectual Property in International Law

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Intellectual Property ◽  
International Law ◽  
Free Trade ◽  
Legal System ◽  
Biological Diversity ◽  
Ip Protection ◽  
Holistic View ◽  
Ip Law ◽  
Rule Systems ◽  
The Relationship

This book examines intellectual property (IP) protection in the broader context of international law. Against the background of the debate about norm relations within and between different rule systems in international law, it constructs a holistic view of international IP law as an integral part of the international legal system. The first part considers norm relations within the international IP law system. It analyses the relationship of the two main unilateral IP conventions to the World Trade Organisation (WTO) Agreement on Trade Related Aspects of International Property Rights (TRIPS), as well as the relationship between TRIPS and subsequent Free Trade Agreements (FTAs). The second part discusses alternative rule systems for the protection of IP. The third part identifies important intersections and links between the traditional system of IP protection and other areas of international law related to environmental, social, and economic concerns. These include free trade in goods; biological diversity, genetic resources, and traditional knowledge; multilateral environmental agreements (MEAs) on climate change; and access to medicines and food. This analysis provides significant insights into the nature and quality of international law as a legal system. The fourth part identifies appropriate norms within the international IP system that can respond to these complexities and linkages.

International Legal Thought

2017 ◽  
Author(s):  
Thomas Kleinlein
Keyword(s):  
International Law ◽  
Historical Analysis ◽  
Critical Potential ◽  
Self Reflection ◽  
Legal Thought ◽  
History Of ◽  
Nineteenth And Twentieth Centuries

This contribution reflects on the role of tradition-building in international law, the implications of the recent ‘turn to history’ and the ‘presentisms’ discernible in the history of international legal thought. It first analyses how international legal thought created its own tradition in the nineteenth and twentieth centuries. These projects of establishing a tradition implied a considerable amount of what historians would reject as ‘presentism’. Remarkably, critical scholars of our day and age who unsettled celebratory histories of international law and unveiled ‘colonial origins’ of international law were also criticized for committing the ‘sin of anachronism’. This contribution therefore examines the basis of this critique and defends ‘presentism’ in international legal thought. However, the ‘paradox of instrumentalism’ remains: The ‘better’ historical analysis becomes, the more it loses its critical potential for current international law. At best, the turn to history activates a potential of disciplinary self-reflection.

“Be Karbala Miravim!”

2017 ◽  
Author(s):  
Anicée Van Engeland
Keyword(s):  
At Risk ◽  
International Law ◽  
Hybrid System ◽  
Legal System ◽  
Iraq War ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
Legal Standards ◽  
Domestic Law

This chapter considers the extent to which Islamic governance can integrate international humanitarian law (IHL) into its own legal system by examining the case of Iran. It addresses the consequences of the emergence of an Islamic-universal hybrid legal system. The stakes are high because IHL’s efficiency and necessity have been questioned: The existence of the Iranian hybrid system of law can be perceived as a threat by scholars arguing that international law is at risk of fragmentation due to the variety of domestic and regional approaches to fundamental legal standards. The importance of those stakes is illustrated by the Iran-Iraq War: The process of mixing a universal secular legal system with a religious domestic law occurred at a crucial time when Iran was at war with Iraq, with clear effects on the protection of civilians and the conduct of hostilities.

The International IP System: From Continuity to Resilience

2017 ◽  
Author(s):  
Henning Grosse Ruse-Khan
Keyword(s):  
Nineteenth Century ◽  
Intellectual Property ◽  
International Law ◽  
Revolutionary Change ◽  
Minimum Standards ◽  
Multilateral System ◽  
Common Goals ◽  
The Common ◽  
Relationship Of

This chapter looks at how rule-relations within the international intellectual property (IP) system have developed from continuity (in constantly raising minimum standards) to resilience (against certain forms of increasing protection). It considers the evolution of the international IP system from the nineteenth century onwards, examining how each succeeding changes and additions to the system had established a relationship of continuity which integrates existing standards and adds new ones. The chapter then turns to the emergence of another revolutionary change. The integral nature of the common goals established in TRIPS’ object and purpose creates a form of ‘resilience’ of the multilateral system over attempts for inter-se modifications. Moreover, international law has appropriate tools so that those charged with applying, implementing, and interpreting multilateral IP norms can give effect to this resilience both in relations of interpretation and relations of conflict.

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