Specialised IP Judiciary: What Are the Key Elements to Consider when Establishing or Reforming an Effective IP Court?

Intellectual property (‘IP’) is one of the key instruments for fostering innovation and promoting the growth of national economies. Given both the economic significance and the legal complexities associated with IP rights due to constant technological development, the benefits of having a specialised IP judiciary are being increasingly recognised across the globe. Many countries have either established or have been considering the introduction of various forms of such a specialised judiciary. This paper examines this trend and explores some key considerations in relation to the efficacy of an IP judiciary. It draws on some of the findings of a recently completed project funded by the UK government on the creation and functioning of a new IP court in Ukraine. While there is no ‘one-size-fits-all’ model when creating a specialised IP judiciary, the discussion in this article sheds light on a number of key factors that should be taken into account and carefully assessed when establishing or reforming such a judiciary. This includes specific considerations related to the structure of an IP judiciary, its location, the specialisation of IP judges, exclusive jurisdiction and other procedural issues. We believe that the guidance provided in this article will assist policymakers in their choices regarding the most suitable design of an IP judiciary for a particular jurisdiction, leading to the enhancement of its operation for the benefit of all the stakeholders in the IP enforcement system.

On the Jurisdiction of Foreign Divorce Cases in China

This article takes China’s jurisdiction over foreign-related divorce cases as an entry point, and systematically expounds the provisions of China’s foreign-related divorce jurisdiction. According to my country’s regulations, my country’s jurisdiction over a foreign-related divorce is vertically divided into direct jurisdiction and indirect jurisdiction, and horizontally divided into personal Jurisdiction, territorial jurisdiction, exclusive jurisdiction, and jurisdiction by agreement. In my country’s Civil Procedure Law and related judicial interpretations, the domicile of the “plaintiff is the defendant” and the location of the plaintiff under certain circumstances is the main focus. The general solution path of the case; At the same time, my country's regulations on foreign-related divorce cases still have shortcomings, and there are still many areas that need to be improved. This article analyzes the shortcomings and the areas to be improved.

Prescriptive Jurisdiction over Foreign Fishing in the EEZ

This Chapter explores how coastal States use their prescriptive jurisdiction to regulate foreign fishing in the exclusive economic zone (EEZ) and how this implements, varies, or develops the framework established in the 1982 United Nations Convention on the Law of the Sea (LOSC). It demonstrates that the formula established in the LOSC for regulating access to the living resources of the EEZ—the obligation to establish whether there is a surplus, the criteria to be applied in allocating any surplus to foreign States, and the terms and conditions that might be imposed on foreign vessels involved in extracting it—bears little similarity to the contemporary regulation of foreign fishing by coastal States. While this formula was intended to ensure a balance between the exclusive jurisdiction of coastal States and the interests of the international community, in practice it has proved poorly adapted to this task, and very few coastal States follow the specific mechanisms set out in the LOSC. Instead, the detailed analysis of State practice in this Chapter shows how coastal States use the broad discretions in the LOSC to pursue a wide range of economic, social, political, national security and foreign policy objectives, and adopt regulations that broaden the substantive, geographic, personal and temporal application of their influence.

Hot Pursuit and the Exercise of Enforcement Jurisdiction beyond the EEZ

This Chapter considers the enforcement of coastal State fisheries laws and regulations beyond the exclusive economic zone (EEZ) following a hot pursuit. While the general framework for hot pursuit established in the 1982 United Nations Convention on the Law of the Sea is clear, its substantive content and operation—particularly in situations that do not fall neatly within the black and white terms of the framework—is less clear. This Chapter considers the key challenges to this framework, and the extent to which—and the ways in which—coastal States have implemented, developed, or departed from it in practice, focusing in particular on the domestic legal basis for conducting hot pursuit, the use of technology in the conduct of hot pursuit, and cooperative approaches to hot pursuit. While recognizing that the hot pursuit doctrine must strike an appropriate balance between the sovereign rights of the coastal State to enforce its laws and the exclusive jurisdiction of the flag State over its vessels on the high seas, the Chapter argues that there is also a broader community interest to be balanced on both sides of this equation: to ensure the effective conservation and management of living resources, and preserve the freedom of navigation on the high seas. This is reflected in the Chapter’s examination of practice, which reveals that States have adopted and implemented a functional, contemporary approach to hot pursuit within the framework of the existing doctrine, which itself has proved to be at once flexible and remarkably enduring.

Religious Courts and Rights in Plural Societies: Interlegal Gaps and the Need for Complex Concurrency

The administration or recognition of religious courts is a form of religious accommodation present in many constitutional states today commonly analysed in legal pluralism terms. This article contributes to the further analysis of the relationship between legal pluralism and rights in religiously diverse societies by examining the status of state religious courts and their interaction with state non-religious (secular) courts. In particular, I examine what Cover calls “jurisdictional redundancies” between the courts and conceptualize the allocation of power between religious and non-religious courts as a potentially productive site of interlegality. In doing so, I support concurrent jurisdictional allocations, arguing that exclusive jurisdiction could result in what I call an interlegal gap, whereby instead of inter-penetration of norms and production of reconciliatory principles, there is a justice gap whereby litigants may find themselves unable to obtain appropriate legal recourse including when neither court is willing to assume jurisdiction over the matter. This requires us to see the relationship between religious courts and non-religious courts through the more mundane but more practical lens of jurisdictional overlaps and competition, rather than through the more abstract framing of normative or even civilizational clashes. Accordingly, I argue that concurrent jurisdiction and interlegality have greater potential to strike a balance between individual and group rights and could be more protective of religious diversity. In other words, I argue for a closer, rather than a more separate, relationship between religious and non-religious courts, while denying that a hierarchical relationship where religious courts are subordinated to non-religious courts is the only way to protect rights.

Typological models of legal regulation of matrimonial relations through the prism of comparative approach in private law

This article outlines a number of typological models of legal regulation of matrimonial relations using the method of comparative-legal analysis. Leaning on the formal-legal approach, analysis is conducted on certain typological models. First and foremost, the author explores the model that is based on inclusion of the norms of family law in the Civil Code. It features two basic modifications that take roots in the reference European codifications of civil law: French (institutional) and German (pandect). Another typological model under review relies on coexistence of the two separate codes within the national legal system: civil and family. The typological distinctness characterizes the model that is based on inclusion of the norms of special statutes dedicated to family law in the Single Civil Code (for example, PRC). The development of family law may take the path of adoption of separate legislative acts (UK, USA). In some instances, federative nature of the country may also affect the development of the system of sources of family law. The countries with pluralistic legal system, either have exclusive jurisdiction over matters of family law (for example, Israel), or stimulate the processes of its modernization through adoption of a special law (for example, India). The author believes that the formal-legal criterion of typology should be correlated with the substantive aspect of the matter. From this perspective, the author highlight the two trends in regulation of matrimonial relations: the first is associated with strengthening of public law principles, while the second is associated with private law principles. The typological model depends on the dynamics of their ratio.

LEGAL GENESIS OF THE CONCEPT OF FREEDOM OF THE HIGH SEA

The article examines the content of freedom of the high seas at the present stage of development, the role of the Conventions Maritime Law in the formation and formation of freedom of the high seas as an institution of international maritime law and analysis of the results of the Conventions. The author considers the legal genesis of the concept of freedom of the high seas and current trends in the transformation of freedom of the high seas in modern international maritime law. The principle of freedom of the high seas expresses the objective need of States and peoples for the free use of maritime space for international economic, political and cultural ties, as well as for the use of living ocean resources. An important transformation of international cooperation and legislation is also related to the principle of exclusive jurisdiction of the flag state. All four conventions have been widely recognized by the member states and are considered to be the most important stage in the codification of international maritime law and its further progressive development. The adoption of the four conventions meant that the unity of the law of the sea was lost, but there may be advantages: for example, the adoption of conventions and a single protocol, instead of a single legal act, tried to involve more states in at least some of the conventions. The creation of marine protected areas in the open waters of the world’s oceans outside national jurisdiction has no legal basis. The 1982 Convention does not give states the right to extend their jurisdiction to certain parts regardless of the objectives pursued, so the creation of marine protected areas on the high seas is impossible within the existing international legal framework.

11. Service Outside the Jurisdiction

This chapter deals with jurisdiction in England and Wales. Proceedings generally have to be served within the jurisdiction. There always has to be a sound basis before proceedings can be served outside the jurisdiction. Where the parties have an exclusive jurisdiction clause in favour of the courts of England and Wales, proceedings may be commenced against a defendant who is outside the jurisdiction pursuant to the Hague Convention 2005, and served on the defendant without seeking court permission. In other cases, if jurisdiction can be established against a defendant who is outside the jurisdiction under the CPR, r 6.36 and PD 6B, para 3.1, proceedings can be served outside the jurisdiction only with the permission of the court. The times for responding to claims served outside the jurisdiction are extended.