Suchergebnisse

"This volume constitutes a commentary on Article 31 of the United Nations Convention on the Rights of the Child, dealing with the right to leisure, play and culture. It is part of the series, A Commentary on the United Nations Convention on the Rights of the Child, which provides an article by article analysis of all substantive, organizational and procedural provisions of the CRC and its two Optional Protocols. For every article, a comparison with related human rights provisions is made, followed by an in-depth exploration of the nature and scope of State obligations deriving from that article. The series constitutes an essential tool for actors in the field of children's rights, including academics, students, judges, grassroots workers, governmental, non-governmental and international officers. The series is sponsored by the Belgian Federal Science Policy Office."--Jacket

In eBay, Inc. v. MercExchange, L.L.C., the Supreme Court held that decisions to grant injunctive relief must accord with the traditional principles of equity, thereby invalidating the practice of generally granting permanent injunctions to patentees upon finding infringement. Under eBay, denials of permanent injunctive relief might become more common, as courts instead opt to award an ongoing royalty. Because TRIPS contains provisions—primarily Article 31—that specify the conditions under which compulsory licenses for patents may be granted, an increase in denials of injunctive relief in favor of an ongoing royalty (creating, in essence, a compulsory license) in the U.S. requires review as to whether the U.S. is out of compliance with these provisions. This Note 1) examines the primary provisions relating to compulsory licensing in TRIPS; 2) studies differences of opinion regarding the nature of compulsory licenses and which understanding is appropriate for TRIPS based on a review of the Agreement's text and drafting history, historical practices, and policy; 3) examines eBay and subsequent cases denying permanent injunctive relief; 4) analyzes where eBay and TRIPS may conflict and attempts to resolve the differences; and 5) suggests strategies that U.S. courts might adopt to be TRIPS compliant with respect to compulsory licensing. This Note concludes that the U.S. faces a dilemma irrespective of Article 31's ultimate interpretation: if eBay is TRIPS compliant, developing countries can cite the case as precedent for implementing their own compulsory licensing systems with their own notions of equity and the public interest; if eBay is not TRIPS compliant, the U.S. may be brought before the TRIPS Dispute Settlement Body, the result of which would be a loosening of TRIPS compulsory licensing requirements or a re-tightening of the U.S. patent law injunctive relief. Absent a Dispute Settlement Body panel report interpreting Article 31, the WTO should issue a ministerial declaration to clarify the meaning and scope of Article 31 as it did for public health in the Doha Declaration.

Preliminary Material -- Prolegomena -- The Elements of Article 31(3)(c) of the VCLT and the Principle of Systemic Integration -- Article 31(3)(c) and Intertemporality -- Principles of Conflict Resolution within the Interpretative Process of Article 31(3)(c) -- Interpretation of Customary International Law by Reference to the Customary Law Equivalent of Article 31(3)(c) (Article 31(3)(c) CIL) -- Concluding Remarks -- Bibliography -- Index.

'Every international convention must be deemed tacitly to refer to general principles of international law for all questions which it does not itself resolve in express terms and in a different way.'