Abstract:
It is argued, through the examination of two civil law jurisdictions – France and Italy, that there is room for the trust to be translated – not transplanted – into existing civil law institutions and practice. The extent to which this is the case and the most appropriate model for this introduction will be dependent on the cultural, historical and political background of each such jurisdiction.
Whilst Italy lacks a domestic trust law, it has taken advantage of the Hague Convention to develop a thriving local practice of using foreign law for Italian trusts. This effort, spearheaded by both doctrinal and jurisprudential support, has allowed the development of a consistent framework and the surmounting of the obstacles inherent in the civil law tradition. As a result of this process initiated nearly twenty years ago, these trusts can no longer be said to be ‘foreign.' A more accurate term would be ‘domesticated’ due to the distinctive features they have developed.
Whereas France has its fiducie, a sui generis institution introduced in 2007, which is structurally a trust in comparative law terms, it is, nonetheless, functionally neutered. Trusts can be based on civil institutions, as the examples of Panama and Quebec show, and it is to be hoped that the French fiducie represents such a first step and will, one day, play a similar role. In any case, recent reforms which have increased its flexibility both structurally and functionally are to be welcomed. In particular the decision, albeit unsuccessful, of the French legislature to introduce a concept of ‘economic ownership’ goes to show just how much the lines are blurring between civilian and common law traditions.
Koessler, James, Is There Room for the Trust in a Civil Law System? The French and Italian Perspectives (March 1, 2012).
Purpose
Monday, August 20, 2012
Saturday, August 11, 2012
Pruning the European Intellectual Property Tree - In Search of Common Principles and Roots
Abstract:
The European Union knows a multiplicity of IP rights, from classical ones (copyright, patent, trademark or design) to more marginal ones, in terms of economic sectors concerned (rights in database, in plant varieties, in semiconductors, in geographical indications). This paper aims at identifying and assessing the existing similarities or common principles in the intellectual property rights in the European Union. Despite their apparent diverging functions, subject matter and scope of protection, copyright, trademark, patent and the other intellectual property rights share at least the fact that they belong to a set of rules granting some exclusive rights in intangible assets, whether creation or signs. Their inclusion under the same label ‘Intellectual Property’ should at least count for something and induce some joint ends and means that could serve as a first skeleton for a reform of intellectual property. This quest for common principles follows successive steps: the justification of the granted protection, the subject matter, the requirements for protection, as well as the exclusions from protection, the scope of protection, the limitations and exceptions to such protection, the duration.
This survey concludes that the principles common to all intellectual property rights are rather scarce. There is the overarching principle, laid down in the EU Charter of Fundamental Rights, that protection of intellectual property should be. The fact that ideas should remain free is another important motto in European intellectual property. The principle of exhaustion applies across all exclusive rights, and enforcement and remedies are almost similar whatever the right infringed. Beyond these common lines, traces of similarities can maybe be detected in formalities (save for copyright and related rights), in exclusive rights conferred, or in the rule of a limited duration. However, justifications, subject matter, rights and exceptions largely remain fragmented and leave ample manoeuvre for uncontrolled extension of intellectual property and overlapping of rights.
I argue that the EU IP tree should at least common roots in the form of an overall foundation sustaining intellectual property and based on innovation and promotion of knowledge, including a necessary balance, and a solid trunk based on some overarching principles. Those principles should be a proper limitation of subject matter, a registration-based grant of the protection, a unitary right of exploitation for all intellectual property rights, though adjustable to the subject matter concerned, a common catalogue of exceptions and limitations, as well as an effective public domain. The branches of intellectual property could then develop under their own rules and specificity to cater to the needs and mechanics of the diverse subject-matter concerned.
Dusollier, Severine, Pruning the European Intellectual Property Tree - In Search of Common Principles and Roots (April 10, 2011). Constructing European Intellectual Property: Achievements and New Perspectives, C. Geiger, ed., Edward Elgar Publishing, 2012.
The European Union knows a multiplicity of IP rights, from classical ones (copyright, patent, trademark or design) to more marginal ones, in terms of economic sectors concerned (rights in database, in plant varieties, in semiconductors, in geographical indications). This paper aims at identifying and assessing the existing similarities or common principles in the intellectual property rights in the European Union. Despite their apparent diverging functions, subject matter and scope of protection, copyright, trademark, patent and the other intellectual property rights share at least the fact that they belong to a set of rules granting some exclusive rights in intangible assets, whether creation or signs. Their inclusion under the same label ‘Intellectual Property’ should at least count for something and induce some joint ends and means that could serve as a first skeleton for a reform of intellectual property. This quest for common principles follows successive steps: the justification of the granted protection, the subject matter, the requirements for protection, as well as the exclusions from protection, the scope of protection, the limitations and exceptions to such protection, the duration.
This survey concludes that the principles common to all intellectual property rights are rather scarce. There is the overarching principle, laid down in the EU Charter of Fundamental Rights, that protection of intellectual property should be. The fact that ideas should remain free is another important motto in European intellectual property. The principle of exhaustion applies across all exclusive rights, and enforcement and remedies are almost similar whatever the right infringed. Beyond these common lines, traces of similarities can maybe be detected in formalities (save for copyright and related rights), in exclusive rights conferred, or in the rule of a limited duration. However, justifications, subject matter, rights and exceptions largely remain fragmented and leave ample manoeuvre for uncontrolled extension of intellectual property and overlapping of rights.
I argue that the EU IP tree should at least common roots in the form of an overall foundation sustaining intellectual property and based on innovation and promotion of knowledge, including a necessary balance, and a solid trunk based on some overarching principles. Those principles should be a proper limitation of subject matter, a registration-based grant of the protection, a unitary right of exploitation for all intellectual property rights, though adjustable to the subject matter concerned, a common catalogue of exceptions and limitations, as well as an effective public domain. The branches of intellectual property could then develop under their own rules and specificity to cater to the needs and mechanics of the diverse subject-matter concerned.
Dusollier, Severine, Pruning the European Intellectual Property Tree - In Search of Common Principles and Roots (April 10, 2011). Constructing European Intellectual Property: Achievements and New Perspectives, C. Geiger, ed., Edward Elgar Publishing, 2012.
Opinio Juris in Comparatione Vol 1/2012
Abstract:
Contents/Sommaire/Sumario
Francesco Donato Busnelli
Ricordo di Fernando Hinestrosa
Articles/Articles/Artículos
Paper n. 1, pp. 1-17
Cristina Amato
The Europeanisation of Contract Law and the Role of Comparative Law:
The Case of the Directive on Consumer Rights
Paper n. 2, pp. 1-21
Marco Farina e Demetrio Maltese
Abuse of Rights and Freedom of Contract in Comparative Perspective:
A Legal and Economic Analysis
Paper n. 3, pp. 1-30
Chiara Perfumi
Theory and Practice of Constructing a Common Contract Law Terminology
Conference Proceedings:
INTERNATIONAL WORKSHOP
ALTERNATIVE DISPUTE RESOLUTION MODELS IN CHINA AND WESTERN COUNTRIES PRACTICE
Paper n. 4, pp. 1-8
Renzo Cavalieri
Between Justice and Harmony: Some Features and Trends of Chinese A.D.R. from a Western Perspective
Paper n. 5, pp. 1-7
Paola Lucarelli
Strengthening Commercial Long Term Relationship with the Help of the A.D.R.
Paper n. 6, pp. 1-7
Jody B. Miller
Mediating Commercial Cases in U.S. Municipal Courts: A Case for Transformative Mediation
Paper n. 7, pp. 1-12
Luca G. Radicati di Brozolo
The Relation Between Courts and Arbitration: Support or Hostility
Paper n. 8, pp. 1-12
Judith A. Saul
The Legal And Cultural Roots of Mediation in the United States
Paper n. 9, pp. 1-9
Sibao Shen, Jian Shen
The Characteristics of Business Mediation System in China
News/Annonces /Noticias
SECONDO CONGRESSO NAZIONALE DELLA SOCIETÀ ITALIANA PER LA RICERCA IN DIRITTO COMPARATO S.I.R.D.
Il modello giuridico -scientifico e legislativo- italiano fuori dell’Europa
Università degli Studi di Siena – 20, 21, 22 settembre 2012
Busnelli, Francesco Donato, Amato, Cristina, Farina, Marco , Maltese, Demetrio, Perfumi, Chiara, Cavalieri, Renzo R., Lucarelli, Paola, Miller , Jody B. , Radicati di Brozolo, Luca G., Saul, Judith A. , Shen, Sibao and Jian, Shen, Opinio Juris in Comparatione Vol 1/2012 (August 7, 2012). Opinio Juris in Comparatione, No. 1/2012.
Contents/Sommaire/Sumario
Francesco Donato Busnelli
Ricordo di Fernando Hinestrosa
Articles/Articles/Artículos
Paper n. 1, pp. 1-17
Cristina Amato
The Europeanisation of Contract Law and the Role of Comparative Law:
The Case of the Directive on Consumer Rights
Paper n. 2, pp. 1-21
Marco Farina e Demetrio Maltese
Abuse of Rights and Freedom of Contract in Comparative Perspective:
A Legal and Economic Analysis
Paper n. 3, pp. 1-30
Chiara Perfumi
Theory and Practice of Constructing a Common Contract Law Terminology
Conference Proceedings:
INTERNATIONAL WORKSHOP
ALTERNATIVE DISPUTE RESOLUTION MODELS IN CHINA AND WESTERN COUNTRIES PRACTICE
Paper n. 4, pp. 1-8
Renzo Cavalieri
Between Justice and Harmony: Some Features and Trends of Chinese A.D.R. from a Western Perspective
Paper n. 5, pp. 1-7
Paola Lucarelli
Strengthening Commercial Long Term Relationship with the Help of the A.D.R.
Paper n. 6, pp. 1-7
Jody B. Miller
Mediating Commercial Cases in U.S. Municipal Courts: A Case for Transformative Mediation
Paper n. 7, pp. 1-12
Luca G. Radicati di Brozolo
The Relation Between Courts and Arbitration: Support or Hostility
Paper n. 8, pp. 1-12
Judith A. Saul
The Legal And Cultural Roots of Mediation in the United States
Paper n. 9, pp. 1-9
Sibao Shen, Jian Shen
The Characteristics of Business Mediation System in China
News/Annonces /Noticias
SECONDO CONGRESSO NAZIONALE DELLA SOCIETÀ ITALIANA PER LA RICERCA IN DIRITTO COMPARATO S.I.R.D.
Il modello giuridico -scientifico e legislativo- italiano fuori dell’Europa
Università degli Studi di Siena – 20, 21, 22 settembre 2012
Busnelli, Francesco Donato, Amato, Cristina, Farina, Marco , Maltese, Demetrio, Perfumi, Chiara, Cavalieri, Renzo R., Lucarelli, Paola, Miller , Jody B. , Radicati di Brozolo, Luca G., Saul, Judith A. , Shen, Sibao and Jian, Shen, Opinio Juris in Comparatione Vol 1/2012 (August 7, 2012). Opinio Juris in Comparatione, No. 1/2012.
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