Conflict of Laws in International Intellectual Property Agrements

The complexity and diversity of international assignment or license of IPRs and the territoriality principle, makes determining their applicable law difficult. The rules governing IPRs, are distinct from applicable law to contractual issues, hence the importance of characterization in these contracts. Party autonomy and the discretion of courts are faced with restrictions including competition law originating from national or international public policy. In the absence of agreement as to governing law, Rome I Regulation, after stating specific rules for determining the applicable law to certain categories of contracts, has adopted the characteristic performance criterion not applicable to certain IP contracts. Other instruments typically provide for the application of the law of the country with the closest connection with contract. There are different standards to identify such a country, the best of which is presented by Max Planck rules which is based on the analysis of a group of elements. Since Iran is a developing country in need of importing technology, the assignee’s or licensee’s country also deserves attention. The Iranian laws have no specific rule in this regard and the conflict of law rule in article 968 of the Civil Code is not compatible with the characteristics of those contracts.