Public international law affects private international law (conflict of laws) in a myriad of ways. This article discusses potential effects of international intellectual property (‘IP’) law on the application of the public policy exception, which is used as a limitation on the application of foreign law and on the recognition and enforcement of foreign judgments. The article describes the function of the exception and its treatment in existing academic projects on IP law issues in private international law. It provides examples of the uses of the exception in IP cases and contemplates the frequency of the use of the exception in such cases. The article reviews international IP treaties, including IP chapters of free trade agreements, as possible sources of relevant public policies and evaluates whether a foreign IP law compliance with international intellectual property treaties could serve as a factor in the public policy exception analysis. The article suggests that courts give some weight in the public policy exception analysis to a finding of a foreign IP law’s compliance with international IP treaties but recognizes that the proposed approach would need to be nuanced and account for diverse circumstances.
Trimble, Marketa, The Public Policy Exception and International Intellectual Property Law (July 18, 2021). AIDA – Annali Italiani del Diritto D’Autore, Della Cultura e Dello Spettacolo (forthcoming 2021).