AIPPI at the HCCH Diplomatic Conference

by Anne Marie Verschuur (First Deputy Reporter General)

On July 2, 2019, a new Hague Convention was signed after a Diplomatic Conference of two weeks and AIPPI, represented by First Deputy Reporter General Anne Marie Verschuur, attended the conference (as well as prior preparatory meetings) as an invited observer. In line with AIPPI’s position, intellectual property was excluded from the scope of the convention.

The new convention concludes a project of the Hague Conference on Private International Law (HCCH) and is aptly titled the “2019 Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters“. While (as is clear from this title) the scope is rather broad, in article 2(1) the convention excludes a number of matters from the scope of the convention, including for example defamation, privacy and certain anti-trust (competition) matters, but also intellectual property. It is furthermore noteworthy that the convention does not deal with jurisdiction.

At last year’s world congress in Cancun, in an effort led by the Enforcement Committee (in particular Ken Adamo, Peter Damerell and Gustavo de Freitas Morais), AIPPI had adopted a resolution in preparation for the convention, in which it among others resolved that “Intellectual property should be excluded from the scope of the Convention.”¬†[2] This resolution was submitted as an information document[3] for the HCCH members to consider and it was indeed referred to during the conference, where the in- or exclusion of intellectual property was one of the most controversial topics. Proponents of bringing intellectual property within the scope referred to the often cross-border nature of disputes and the advantages of recognition of judgments for trade. Opponents referred to the fact that jurisdiction is not dealt with in the convention, as well as to the particular character of intellectual property rights (e.g., their territorial nature, as well as the important role of administrative offices). Eventually, the opponents prevailed and intellectual property was excluded.

With the above exclusion, it is however not entirely clear what is and what is not within scope of the new convention. For example, what about trade secrets, unfair competition, license agreements, compulsory licenses and FRAND disputes? Are those not excluded and thus within the scope, or do they fall within the exclusion? An earlier draft version of the convention not only excluded intellectual property but also “analogous matters“; again in line with AIPPI’s position, that term was deleted. This does not necessarily mean that the exclusion should be interpreted narrowly though. The final “Explanatory report”, which will contain an explanation of the convention, will hopefully in due course clarify the scope of the exclusion; while a draft was discussed during the conference, it is expected that the report will not be finalised and approved by the HCCH members before the end of 2019 (or even March 2020).

AIPPI’s role in the process leading up to the convention is a prime example of its role and relevance in the legal community. AIPPI was among a select group of observers and was invited because of its unique broad coverage of all IP and its worldwide member base; furthermore, AIPPI’s resolution was taken into account and the resulting convention is in line with the core thereof!