Comparative Law Researches

Comparative Law Researches

Comparative study of Determining applicable law in secured transaction in intellectual property

Document Type : Original Research

Authors
hassan alipour 1
Mohamad Isaee tafreshi 2
Morteza Shahbazinia 3
1 PhD Student of Private law, Faculty of law, Tarbiat Modares University, Tehran, Iran.
2 Professor of Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran.
3 Associate Professor of Private Law, Faculty of Law, Tarbiat Modares University, Tehran, Iran.
Abstract
International relations disputes arising from secured transactions and non-compliance of conflict of laws rules and sufficiency of regulations in this regard has been developed to different theories in the determine of applicable law in the secured transactions in intellectual property. Important scientific centers around the world have also come up with suggestions in this regard. Such as the American Law Institute, the Max Planck and UNCITRAL Groups. In spite of the acceptance of the party autonomy in determining the applicable law, the acceptance of this theory in intellectual property issues is uncertain. Today, regardless of the party autonomy, two important criteria for determining of applicable law have been accepted. The law of debtor’s location and the law of the protection state (territorial principle).

In American law, in particularly in the uniform commercial code (UCC), while accepting the principle of most connection, the debtor location of the collateral has introduced as the main criterion. Additionally, the supplement of UNCITRAL Guide for Intellectual Property (IP) has put forward four suggestions on this subject but it mainly focuses on the territorial principle. The principles of Max Planck have also accepted the law of the protection state in this regard. Rome's code has adopted a theory of the most connection.

Also, In Article 968 of the Civil Code of Iran, the place for conclusion of contract is the criterion, However, in the Iran International Commercial Arbitration Act also accepted the proper law accordance with the rules of conflict law, but the application of this rule ultimately leads to the application of Article 968.

In terms of all content, In Iranian law, the writer sultimately accepts the party’s autonomy of the contract as a rule of conflict law, and in the absence of choice of law, the location of collateral debtor as a rule of conflict law accepted.
Keywords
Security interest
Intellectual Property
the law of protection state
the debtor’s location
the rule of closet connection

Subjects

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