Choice of Court Agreements in Intellectual Property: ILA Guidelines in the EU and Iran

While substantive private law related to intellectual property (IP) is advanced in terms of international harmonization, international jurisdiction remains national. The 2005 Hague Choice of Court Convention does not apply to many IP issues. Similarly, the Convention on the Recognition and Enforcement of Foreign Judgments, which was adopted in July 2019, but is yet to enter into force, does not apply to IP. IP is enforced on a country-by-country basis. This leads to multiple parallel proceedings, which raise the risk of conflicting judgments and litigation costs. These costs cause inequality between multinational and small- and medium-size enterprises. As a model for future states’ negotiations of an international agreement on IP and private international law, the International Law Association (ILA) Committee on “Intellectual Property and Private International Law” aims to consolidate cross-border IP disputes. To achieve this consolidation, the Committee Guidelines on choice of court agreements in IP are relevant since these enable the applicant to identify the court in which he may sue and the defendant to foresee before which court he may be sued. This paper will first analyze the ILA Guidelines on “choice of court agreements” and “submission and appearance”. The paper will then question whether these Guidelines can be adopted as models for arbitrators, legislators and any other competent authorities in two legal systems: the European Union (in light of the recent case law of the European Union Court of Justice) and Iran (in light of the opposite situation characterized by the absence of case law on the topic).