The Principle of National Treatment in International Economic Law
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The Principle of National Treatment in International Economic Law

Trade, Investment and Intellectual Property

Edited by Anselm Kamperman Sanders

The principle of national treatment, or the non-discrimination clause, is a principle that applies across many fields of international economic law. This book offers a unique horizontal examination of the principle as it applies within international trade law, international investment law, and intellectual property law. An invaluable conclusion draws together the common strands and highlights the variations in application between these fields.
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Chapter 11: The hidden conflict-of-law rule in the Berne and Paris principle of national treatment

Sierd J. Schaafsma


The protection of intellectual property has traditionally been governed by the lex loci protectionis, that is, the law of the country for which protection is claimed. If, for example, patent protection is claimed for the Netherlands, Dutch law will apply. Today, the predominance of the lex loci protectionis conflict-of-law rule is, however, no longer a matter of course. Critics argue that it sits uneasily with the age of globalisation and the internet. Some authors have suggested allowing some exceptions to the lex loci protectionis rule, for example party autonomy. There have also been proposals to narrow the scope of the lex loci protectionis rule by splitting off certain aspects of the protection and subjecting these aspects to other conflict-of-law rules. Such proposals have gained some headway in case law and in legislation. They are, however, controversial. Should one challenge the hegemony of the traditional lex loci protectionis rule? This inevitably raises the question what is the law currently in force in this field? Current opinions on this vary widely. The controversy mainly revolves around the question of whether the two most important intellectual property treaties, that is, the Berne Convention of 1886 and the Paris Convention of 1883, contain a conflict-of-law rule. These treaties cover virtually all the inhabited territories of the globe, and, within their scope, they prevail over all other treaties.

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