국제지적재산권분쟁과 國際私法 : ALI 원칙(2007)과 CLIP 원칙(2011)을 중심으로

As disputes involving intellectual property rights increase, the three principal issues of private international law, i.e., ① the international jurisdiction to adjudicate, ② the governing law and ③ the recognition and enforcement of foreign judgments are becoming more important. As a result, several expert groups in the world have made efforts to prepare uniform private international rules governing the three issues involving intellectual property rights. First, the American Law Institute has published in May 2007 the “Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes” (“ALI Principles”). In addition, the European Max-Planck Group on Conflict of Laws in Intellectual Property)(so-called EMPG) has published in August 2011 the “Principles for Conflict of Laws in Intellectual Property” (“CLIP Principles”). Several Korean experts and Japanese experts have also recently published their joint proposals under the leadership of Professor Kidana Shoichi of Japan. In this article, the author explains the principal contents of the CLIP Principles and the ALI Principles and briefly mentions the Korean court cases that are relevant. Review of the CLIP Principles and the ALI Principles shows that both sets of principles include very similar provisions on the three principal issues of private international law, even though they include some different rules in some respects. We could observe that while maintaining the traditional private international law rules, the two sets of principles purport to cope with the new phenomena of ubiquitous infringements of intellectual property rights by introducing new approaches in the context of jurisdiction and governing law and that the proposed solutions appear to be similar in many respects. The lessons for Korean legislation that the CLIP Principles and the ALI Principles offer could be summarized as below. First, as to the international jurisdiction, we need to insert more detailed jurisdictional rules in the Private International Law Act. Secondly, as to the governing law, we need to further clarify Article 24 of the current Korean Private International Law Act and to expressly provide to what extent the choice of law rules under Articles 33 and 32 of the current Korean Private International Law Act, which are designed to alleviate the strictness of the lex loci delictiI, could be applied to the infringement of intellectual property rights. Korean experts who generally have not paid sufficient attention to these issues should conduct more thorough research on them.