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Ubertazzi, Benedetta --- "Territorial and Universal Protection of Intangible Cultural Heritage from Misappropriation" [2010] NZYbkIntLaw 3; (2010) 8 New Zealand Yearbook of International Law 69

Last Updated: 8 July 2015

TERRITORIAL AND UNIVERSAL PROTECTION OF INTANGIBLE CULTURAL HERITAGE FROM MISAPPROPRIATION

BENEDETTA UBERTAZZI*


I. INTRODUCTION

In the absence of an international agreement on the protection of intangible cultural heritage (hereinafter: ICH)¹ from worldwide misappropriation, three approaches to protection have developed. A first approach consists of what can be described as semi-legal protection, namely in taking extrajudicial measures in order to settle the dispute out-of-court. This approach was followed in a series of recent cases, which include the appropriation of Māori language and imagery by multinational companies as well as the misappropriation of traditional songs by certain rock groups all over the world.

A second approach to protecting ICH universally consists in the so-called instances of positive protection, namely in claiming before the competent administrative or judicial authorities the protection of derivates: patents over inventions based on traditional knowledge associated with genetic resources, as well as copyrights over works created by a particular author in developing the folklore further, and other intellectual property rights (hereinafter IPRs), which may provide some form of protection to ICH, such as trade secrets, collective trademarks, and geographical indications.

A third approach to protecting ICH universally consists of so-called instances of defensive protection, namely petitioning the competent administrative and judicial authorities to refuse to grant or to revoke IPRs that are granted to persons not belonging to the original indigenous communities and that relate to the traditional knowledge of those communities.

The first approach generally succeeds in granting universal protection to ICH, since the wrongdoer typically withdraws any products based on the ICH from circulation and also ceases their manufacture altogether. The wrongdoer also typically refrains from the future incorporation of any further images and names from the original culture of the ICH. Furthermore, the wrongdoer generally undertakes the performance of reconciliatory acts, such as issuing an apology or expressing humiliation. However, the wrongdoer does not usually grant any monetary compensation.

In contrast, because of the territoriality of IPRs, the second and third approaches do not overcome a strictly local perspective, namely the need for an applicant to claim the protection of the ICH by initiating separate legal actions in each and every country in which the IPRs invoked or attacked have been filed, granted or come into existence.
To overcome this territorial approach and to universally protect, not only semi-legally but also legally, the IPRs from misappropriation, a number of proposals have been suggested.² According to one proposal, the universal protection of ICH can be achieved through the application, by analogy, of existing customary international law rules relating to the crime of piracy; by relying on the international law of human rights; or through the application of rules similar to those found in the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.³ In contrast, these proposals deny that the same result can be achieved through the IPRs system because of the territorial nature of IPRs,⁴ which is also referred to as the territoriality principle.⁵
Yet, these proposals are based on a false premise, namely, that the universal protection of ICH from misappropriation cannot be achieved through the IPRs system owing to the territorial nature of IPRs. By contrast, this article proposes a new interpretation of the territoriality principle, namely by understanding it as an expression of the proximity principle. The territoriality principle so interpreted does not vest exclusive subject-matter jurisdiction in the courts of the States that granted the IPRs in question and does not necessarily require the application of the lex loci protectionis. Therefore the territoriality principle, intended as an expression of the proximity principle, does not prevent a case relating to the misappropriation of an IPR having occurred in many countries from being decided by a single competent court on the basis of a single law according to the universality principle.⁶
Thus, universal protection of ICH can be provided for within the IPRs system. In fact, since the territoriality principle so interpreted does not impose a rule of exclusive jurisdiction, an applicant is not obliged to initiate separate legal actions in each and every country in which a disputed IPR has been granted and infringed. The applicant is able to claim universal protection of the ICH before a single court inside the IPRs system. According to certain existing international rules, which deviate from the territoriality principle in relation to the allocation of jurisdiction, this competent court to adjudicate the entire infringement case should be the court of the country where the defendant is domiciled or the court of the State where the infringement occurred, interpreted as referring to the court of the State at the place of the action, as well as to the court of the State at the place of the result.⁷
Furthermore, since the territoriality principle does not impose the exclusive application of the lex loci protectionis, the court seised is not obliged to apply the laws of each and every country in which a disputed IPR has been granted and infringed, but rather, can grant universal protection of the ICH within the IPRs system according to a single law. According to already existing model rules, which deviate from the territoriality principle, the law applicable to the entire ICH misappropriation case in question should be the law of the country most closely connected to the case. That State could in fact be the country of origin of the ICH itself. In cases of cross-border or regional ICH, the laws of the States of origin can be applied in a cumulative way as the laws of the countries most closely connected to the case.⁸ At any rate, the alleged infringer of the ICH could invoke an exception from the single-law approach, claiming his or her good faith.⁹

II. TERRITORIALITY AND UNIVERSALITY

A. Territoriality and Universality in Public International Law

Since the emergence of the modern (European) international society of States with the treaties of Peace of Westphalia signed between May and October 1648 in Osnabrück and Münster, international relations have been based upon the concept of sovereign States. A sovereign State is a State with a permanent population, a defined territory, a government and the capacity to enter into relations with other sovereign States.¹⁰ According to the classical definition of Huber in the Island of Palmas case, "sovereignty in the relations between States signifies independence. Independence in regard to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the functions of a State".¹¹ In public international law, territory is the denotation of a certain physical and geographical space that constitutes one of the qualifications for Statehood: it asserts itself throughout the area of public international law; it grounds the so-called territorial imperative of public international law; and its influence can be felt in a number of fields. For example, territory is a fundamental component of the doctrine of non-intervention, according to which, States shall refrain "from the dictatorial interference ... in the affairs of another State for the purpose of maintaining or altering the actual conditions of things".¹² Moreover, territory stands at the basis of the "high fiction" of the territorial sea,¹³ the territorial airspace and the territorial "ice". Finally, territory is linked to the notion of territorial jurisdiction, where justice is exercised by a State in relation to crimes committed on its territory.¹⁴

However, "our era has witnessed a spectacular redeployment of the functions of the State and a concomitant redefinition of the relationship of the State to its national territory as one of its constitutive elements",¹⁵ and therefore a tension exists between territorial sovereignty on the one hand, and the common interest of the international community on the other. This tension calls for the realisation of a fair balance between territorial and universal interests, and transports us beyond concepts of State territorial authority towards "the partial unbundling of traditional national territorial borders and the formation of new bordering capabilities, both subnational and transnational."¹⁶ As a consequence, a territorial subversion is occurring in many different fields of public international law. For example, the States' transference of certain competences to international organisations enables these international organisations to exercise certain States' sovereign competences without possessing sovereign authority over a certain territory. Moreover, when certain requirements are met, human rights call "for the affirmation of an extraterritorial responsibility of States, towards populations other than their own",¹⁷ and render highly debatable the doctrine of non-intervention as a guiding principle of international relations.¹⁸ In addition, the emergence of universal interests such as the conservation of marine wildlife and the need to tackle climate change are replacing territorial considerations with "a more coherent and less fragmented system of public international law",¹⁹ which aims to realise "unified ambitions and purposes".²⁰ Furthermore, cybertravel frustrates efforts to make the territorial scope of regulation and enforcement on the internet mirror the geographical limits of the physical world.²¹ Finally, the establishment of universal jurisdiction allows States to claim jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting State, regardless of nationality, residence or any other relation with the prosecuting country.²²

B. Territoriality and Universality in Relation to Intangible Cultural Heritage

The tension between the territorial sovereignty of States and the common interests of the international community influences the international legal instruments that are focused on cooperation between States with respect to safeguarding culture. In fact, culture is universal in nature²³ and the intangible expressions of culture render its universal character even more apparent.

C. The UNESCO Convention on Intangible Cultural Heritage

The tension between the territorial sovereignty of States and the common interests of the international community is manifest with regard to the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage (hereinafter: ICHC)²⁴ and the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions.²⁵ Under the ICHC, a first group of rules emphasises the territorial link between each State party to the Convention and the ICH present in that party's territory. For example, according to art 2 of the Convention, which lays down the definition of ICH, ICH comprises the "human and territorial contexts" where its expression is created and circulated, and where it forms part of the daily way of living of a specific group of people linked to a certain territory. Therefore "an heritage that could be considered to be intangible, such as a particular type of dress or largely consumed foods (eg blue-jeans, hamburgers) does not seem to be covered by the definition, since it appears to be trivialised by reason of its being circulated around the world".²⁶ Furthermore, in the third section of the Convention relating to the "safeguarding of the intangible cultural heritage at the national level", art 11 of the Convention establishes that "each State party shall ... take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory". Additionally, art 12 of the Convention requires each State party to draw up inventories of the ICH present in its territory. Moreover, according to art 13 of the Convention, each State party shall adopt certain specific measures listed by that article to ensure the safeguarding of the ICH present in its territory.

By contrast, a second set of rules under the ICHC emphasises the universal interest of the entire international community in safeguarding ICH wherever it is located. For example, the preamble to the Convention highlights the necessity of being "aware of the universal will and the common concern to safeguard the intangible cultural heritage of humanity". Moreover, the "Operational Directives for the Implementation of the Convention for the Safeguarding of the Intangible Cultural Heritage,"²⁷ encourage States party to the ICHC to submit multi-national nominations to the "Representative List of the Intangible Cultural Heritage of Humanity and respectively of Intangible Cultural Heritage in Need of Urgent Safeguarding" (art 1.5.13). Accordingly, in 2008, two cross-border items were inscribed on the Representative List of the ICH of humanity: namely, the Language, Dance and Music of the Garifuna (Belize, Guatemala, Honduras and Nicaragua) and the Oral Heritage of Gelede (Benin, Nigeria and Togo).²⁸ Similarly, in 2010, several cross-border items were inscribed in the UNESCO Lists including the Mediterranean Diet, proposed by Italy, Greece, Spain and Morocco.²⁹ Finally, according to art 17(3) of the Convention, the Committee may inscribe an item on the Lists "in consultation with the State party concerned" suggesting that the State party concerned is hypothetically different to the territorial State.³⁰

D. The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions

The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions of 2005³¹ also emphasises the territorial link between the States party to the Convention and the cultural expressions located in their territory. For example, art 1(h) of the Convention "reaffirm[s] the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory". Moreover, art 2(2) emphasises the "principle of sovereignty" of each State party to adopt measures to safeguard the diversity of cultural expressions within its territory. Furthermore, the sovereign authority of States to adopt safeguarding measures regarding the diversity of cultural expressions within their territory is reaffirmed by art 6 of the Convention. Finally, art 8 recognises that each State party "may determine the existence of special situations where cultural expressions on its territory are at risk of extinction, under serious threat, or otherwise in need of urgent safeguarding".

In contrast to the first group, a second group of rules within the Convention emphasises the universal interest of the entire international community in safeguarding the expressions of cultural diversity wherever they are located. For example, the preamble to the Convention highlights "that cultural diversity forms a common heritage of humanity and should be cherished and preserved for the benefit of all". Moreover, the objective of the Convention is to "promote respect for the diversity of cultural expressions and raise awareness of its value" not only at the local and national level, but also at the "international" level (art 1(e)). Furthermore, art 2(4) of the Convention endorses the "principle of international solidarity and cooperation" according to which the States Parties shall be encouraged to create and strengthen their means of cultural expression and their cultural industries not only at the local and national level, but at the international level also. Finally, according to art 12, States party to the Convention shall cooperate at the bilateral, regional and international level in promoting the diversity of cultural expressions.³²

E. Ongoing Negotiations on Intangible Cultural Heritage in Different International Fora

The tension between the territorial interests of States on the one hand and the universal interests of the international community on the other is a direct consequence of the fact that expressions of intangible culture live within a cultural space, namely within a "physical or symbolic space where individuals meet each other in order to present or exchange certain social practices or ideas."³³ This space is a "cultural environment produced by the social practice throughout the adoption or the appropriation of certain structures, spaces or natural sites."³⁴ As a result, these intangible cultural expressions cannot be linked to a precise physical and geographical territory, but rather, are a social and universal phenomena. Moreover, the processes of globalisation, which have been facilitated by the rapid development of information and communication technologies, afford unprecedented conditions for enhanced interaction between cultures, especially when these cultures are of an intangible nature. However, this process of globalisation represents a challenge for intangible cultural expressions "in view of risks of imbalances between rich and poor countries"³⁵ as well as risks of its transnational misappropriation.

This risk of transnational misappropriation of ICH raises a number of issues of how to protect ICH universally.³⁶ However, at the international level there is currently no harmonisation of substantive international law and conflict of laws rules relating to the protection of ICH. The UNESCO Conventions analysed here do not address the issue of protecting ICH from misappropriation.³⁷ Indeed, given the frequent exploitation of ICH beyond national borders and, hence, the need for international protection, the ultimate goal of the international community should be the adoption of an international agreement.³⁸ In this context, ongoing negotiations are taking place within different international fora aimed at concluding an international agreement relating to folklore and traditional knowledge, which may or may not be associated with genetic resources.

The negotiations in the WTO have so far produced few results.³⁹ In contrast, the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is currently working on new drafts of its three working documents on: traditional cultural expressions; traditional knowledge; and genetic resources.⁴⁰ These documents are due to be presented at the 26 September to 5 October 2011 Session of the WIPO General Assembly.⁴¹ In particular, one of the preliminary documents adopted by the Committee⁴² warrants full quotation. On the one hand it sets out the principle of national treatment, according to which "a host country would extend to foreign traditional knowledge holders treatment that is at least as favourable as the treatment it accords to national traditional knowledge holders in similar circumstances."⁴³ However, on the other hand,

under one strict conception of national treatment, a foreign court in the country of protection would have recourse to its own laws, including its own customary laws, to determine whether a foreign community qualifies as a beneficiary. This may not satisfactorily address the situation from the community's viewpoint which would, reasonably, wish for its own customary laws to be referred to. Under mutual recognition and assimilation principles, a foreign court in the country of protection could accept that a community from the country of origin of the traditional knowledge has legal standing to take actions in country A as the beneficiary of protection because it has such legal standing in the country of origin. Thus while national treatment might be appropriate as a general rule, it may be that mutual recognition, for example, would be the appropriate principle to address certain issues such as legal standing.⁴⁴

Futhermore, under the framework established by the UN Convention on Biological Diversity (CBD),⁴⁵ the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilisation was adopted on 29 October 2010.⁴⁶ In particular, this Protocol harmonises the substantive rules, as well as the conflict of law rules, relating to the universal protection of traditional knowledge associated with genetic resources. Article 16 of the Protocol determines that the applicable law in respect of traditional knowledge associated with genetic resources is the law of the country of origin. It stipulates that each State party shall adopt measures to provide that traditional knowledge associated with genetic resources located within its jurisdiction has been accessed in accordance with prior informed consent and on mutually agreed terms as established by the law of the country of origin. Moreover, art 16 also requires that each State party adopts measures to address situations of non-compliance with the lex originis and cooperate with the competent authorities of the country of origin of the traditional knowledge in cases of an alleged violation of the law of that country.

With regard to non-governmental organisations (NGOs), the Association for the Protection of Intellectual Property (AIPPI) established the Special Committee Q166⁴⁷ with the task of working on the topic of intellectual property and genetic resources, traditional knowledge and folklore. Under the guidance of this Committee, AIPPI adopted in Gothenburg, in 2006, Resolution Q166 on "intellectual property and genetic resources, traditional knowledge and folklore",⁴⁸ with the aim of harmonising the substantive laws of the various States. Yet this Resolution does not establish international procedural rules or conflict of laws norms. In contrast, the AIPPI Special Committee Q166 in 2010 prepared a questionnaire on "the requirement of indicating in patent applications the source or country of origin of genetic resources and traditional knowledge involved in the making of the invention",⁴⁹ which addressed not only the substantive law issues but also those based in private international law (hereinafter: PIL). Question number 8 of the questionnaire reads as follows:

is the disclosure requirement limited to biological/genetic resources or traditional knowledge of the country in question only, or is it applicable also to biological/genetic resources or traditional knowledge obtained or obtainable from other countries and geographical areas? ⁵⁰

The answers to this question collected by the AIPPI Special Committee Q 166 in 2010 indicate that while certain countries (such as Brazil, South Africa and New Zealand) limit the disclosure requirement to the traditional knowledge that is present in their territory, the majority of the States involved (such as China, Egypt, Germany, Italy, The Philippines and Switzerland) extend the disclosure requirement also to non-domestic resources, respecting the law of the country of origin.⁵¹ Unfortunately, according to the national groups that answered the questionnaire, there are still no administrative or judicial decisions on this disclosure requirement.⁵²

F. The Universal Protection of Intangible Cultural Heritage From Misappropriation

In the absence of an international agreement on the protection of ICH from misappropriation, three approaches to protection have been developed. The first approach consists of what can be described as semi-legal protection, namely, taking extrajudicial measures in order to settle the dispute out-of-court. This approach was followed in a series of recent cases, which can be divided into two different groups: the misappropriation of Māori language and imagery; and the misappropriation of traditional songs by music bands.

The first group of cases⁵³ involves the appropriation of Māori language and imagery in Lego toys (2001),⁵⁴ in cigarettes marketed by Philip Morris in Israel (2005-2006),⁵⁵ in the koru (unfurling fern frond) design on Canterbury rugby boots (2002),⁵⁶ in Jean Paul Gaultier's use of moko (traditional Māori facial tattoo) on fashion models (2007),⁵⁷ in a television advertisement by car maker Fiat in which, to sell the new Fiat Idea city car, the advertisers wanted a crowd of black-clad Italian women to perform a Māori Kapa haka, a war dance traditionally performed only by men (2006),⁵⁸ in the "disrespectful"⁵⁹ misappropriation of a Māori cultural icon, hei-tiki, for the commercial sale of Heitiki infant formula (2011)⁶⁰ and in the appearance of an "instantly recognisable"⁶¹ Māori tattoo design in the 2011 movie The Hangover Part II (2011).⁶² Following protests over the misappropriation of Māori ICH, both Lego and Philip Morris withdrew their toys and cigarettes respectively. These products were deemed to have misappropriated Māori ICH and both companies chose not to incorporate images and names from Māori ICH in future launches of their products.⁶³ Moreover, in the Philip Morris case, the CEO of the company issued an apology to the Māori people during a shareholders' meeting in New York, which was televised nationally in New Zealand, where a spokesperson stated that "we sincerely regret any discomfort that was caused to Māori people by our mistake and we won't be repeating it".⁶⁴ However, the company did not grant any monetary compensation to the Māori. By contrast, although the New Zealand Ministry of Foreign Affairs and Trade advised Fiat that the use of the Haka in their advertisement for the Idea city car "was culturally insensitive and inappropriate", the company indicated that it was proceeding with the campaign despite this advice.⁶⁵

The second group of cases involve the misappropriation of traditional songs by certain rock groups. For example, in a recent case, the German rock group Enigma misappropriated a song that belongs to the tradition of Taiwan's Ami tribe, and is customarily performed by a host to welcome his or her guest.⁶⁶ This song was sung by an elderly Amis aboriginal couple named Kuos and was performed in Europe during a 1988 tour of Europe by the Kuos. Subsequently, the song was illicitly recorded during a performance in France by the Maison des Cultures du Monde and by the EMI record Company. The Enigma group remixed the song using two minutes of the Kuos' voices. The same group renamed the song Return to Innocence. In 1996 the song was used for the Olympic Committee's promotional advertisement and was then seen by people in Taiwan and by the Amis as part of the Olympic promotion on CNN and other US networks that were broadcast worldwide. Finally, Return to Innocence burst into Billboard Magazine's International Top 100 and stayed there for 32 straight weeks.⁶⁷ However, the Kuos and the Amis tribe were never informed by the Enigma group or by EMI Record Company of the use of their voices. The Kuos asked for recognition as the original artists, and requested the right to perform the song at the opening ceremony of the Olympic games in Atlanta. When this did not materialise, the Kuos began a legal battle out-of-court not only in order to obtain financial compensation and recognition, but also to protect the cultural heritage of the whole tribe.⁶⁸ However, as of today, the Kuos and the Amis have received neither credit nor payment for being the star singers.⁶⁹ After the Enigma CD was released, the Maison des Cultures du Monde did eventually agree to pay a symbolic fee of FF 15,000 (less than US$3,000) to the Chinese Folk Arts Foundation, which brought the Ami group to Europe for the first time. But because there currently exists a running dispute over who (if anyone) really owns the copyright and related rights over the music of the Ami people, the money has remained in the Foundation, and has not been given over to the indigenous people who performed in Europe.⁷⁰

A second approach to universally protecting ICH consists of the so-called instances of positive protection, namely in claiming before the competent administrative or judicial authorities the protection of the so-called derivates: patents over inventions based on traditional knowledge associated with genetic resources, as well as copyrights over works created by a particular author in developing the folklore further. Other IPRs which may provide for some form of protection to ICH, include trade secrets, collective trademarks and geographical indications.⁷¹ This second approach was followed in the case Gallo v StingMusic decided by the Supreme Court of Appeal of South Africa in 2010.⁷² In this case five plaintiffs issued summons against certain defendants domiciled or resident in South Africa. The plaintiffs claimed the protection of the copyright owned by them (by assignment or as original authors) over the musical Umoja, created by them for the purposes of developing South African folklore further. The musical was performed by the defendants in 20 jurisdictions, including South Africa, ranging from Japan to the United States of America.⁷³ The plaintiffs invoked protection of their copyright against the defendants' infringements in all the 20 jurisdictions involved before the South African courts.⁷⁴ However, the Supreme Court of Appeal held that "IPRs, including copyright, are immovable intangibles and . local courts do not have jurisdictions in respect of foreign copyright issues."⁷⁵ In light of this conclusion it is apparent that the plaintiffs should have started proceedings in each and every jurisdiction where the copyright infringment allegedly took place, namely in each of the 20 countries concerned.

A third approach to protecting ICH universally consists of so-called instances of defensive protection, namely petitioning the competent administrative or judicial authorities to refuse to grant or to revoke IPRs that are granted to persons or organisations outside indigenous communities in cases where the ICH of those indigenous communities has been misappropriated. For example, a patent may be revoked if it can be demonstrated that traditional knowledge, eventually published, represented prior art, thereby destroying the patent's novelty, which is a necessary element of patentability. Furthermore, it is possible to fight claims to copyright over folklore under the condition that the same expression of folklore existed before the claim to protection. Similarly, a trademark application may be refused in cases of offensive marks or trademarks that are against good morals and public order, or marks that have been registered in mala fede. For example, in March 2010 the European Patent Office decided to withdraw a patent application of the American multinational company Natreon in respect of an Indian wonder plant, Ashwaganda (Withania somnifera), used in the treatment of a range of illnesses, including stress-related conditions. The withdrawal of the application was based on India's documentary proof confirming that medicinal formulations using Ashwagandha had been used in India as far back as the 12^th century.⁷⁶ A recent case involving the use of trademarks to provide defensive protection of ICH concerned the chocolate manufacturer, Lindt.⁷⁷ Lindt, having produced chocolate in the shape of bunnies since the early 1950s and marketed in Austria since 1994, became, in 2000, the proprietor of a European Community three-dimensional trademark, representing a gold-coloured chocolate bunny in a sitting position, wearing a red ribbon with a bell attached, with the words Lindt GOLDHASE in brown lettering. After registering the trademark in question, Lindt initiated legal proceedings against certain Austrian manufacturers who were allegedly manufacturing products so similar to the bunny protected by that mark that there was a likelihood of confusion.⁷⁸ However, one of those manufacturers raised a counterclaim and sought a declaration of invalidity of the Lindt trademark.⁷⁹ The manufacturer argued that Lindt was acting in bad faith within the meaning of art 51(1)(b) of EU Regulation No 40/94 of 20 December 1993 on the Community trademark⁸⁰ when it filed its application for registration of the three-dimensional Community mark in question.⁸¹ In particular, the manufacturer argued that Lindt knew that in both Austria and Germany a tradition existed from at least 1930 of marketing chocolate bunnies, commonly called Osterhasen (Easter bunnies), in shape and colour very similar to the one represented by the Lindt three-dimensional mark. In this case the Austrian Supreme Court stayed the proceeding pending before it and referred three preliminary questions relating to the interpretation of art 51(1)(b) of Regulation 40/94 to the Court of Justice of the European Union (ECJ).⁸² In response to those questions the ECJ asserted that

in order to determine whether the applicant is acting in bad faith within the meaning of [this] Article ... the national court must take into consideration all the relevant factors specific to the particular case which pertained at the time of filing the application for registration of the sign as a Community trade mark, in particular: the fact that the applicant knows or must know that a third party is using, in at least one Member State, an identical or similar sign for an identical or similar product capable of being confused with the sign for which registration is sought; the applicant's intention to prevent that third party from continuing to use such a sign; and the degree of legal protection enjoyed by the third party's sign and by the sign for which registration is sought.⁸³

The ECJ defered to the national Court, as usual, the decision whether in the actual case before them the trademark in question was registered in bad faith by Lindt.

To sum up, the first approach to obtaining universal protection of ICH is generally successful; the wrongdoer withdraws from the relevant markets any products based on the ICH; no longer manufactures and distributes those products and does not incorporate any further images and names from the original culture of the ICH. Moreover, the wrongdoer regularly undertakes the performance of reconciliatory acts such as issuing an apology or expressing humiliation. However, the wrongdoer does not usually grant any monetary compensation.

In contrast, the second and third approaches to transnational protection of ICH do not succeed in granting universal protection to ICH owing to the territorial nature of the IPRs that are either invoked over inventions or works associated with the ICH (under the second approach) or that are attacked to protect the ICH (third approach). For example, in the Gallo Case noted above, the South African Court refused to examine the plaintiffs' claims as far as the foreign infringements were concerned. The Court stated that "intellectual property rights (IPRs) are territorial in nature", which "leads ineluctably to the conclusion that IPRs, including copyright, are immovable intangibles and that . local courts do not have jurisdiction in respect of foreign copyright issues".⁸⁴ In the Natreon Case,⁸⁵ which illustrates the third approach to universal protection of ICH, the failure of the patent application in Europe did not affect the granting of the patent in United States' territory because of the territorial nature of patents.⁸⁶ To prevent the misappropriation of traditional knowledge, India has signed agreements with the European Patent Office, the United States Patent and Trademark Office, the Canadian Intellectual Property Office, the German Patent Office and the United Kingdom Patent Office. According to those agreements

if there is any new patent that comes up for examination in these countries that's related to India's traditional knowledge the patent examining body can access India's database to see if it is worthy of a patent and/or reject the application. Since the database is available in a number of languages like Spanish, German, French, English, and Japanese it helps bridge the gap between the patent examiners and traditional knowledge.⁸⁷

III. TERRITORIAL AND UNIVERSAL PROTECTION OF INTANGIBLE CULTURAL HERITAGE OUTSIDE THE INTELLECTUAL PROPERTY RIGHTS SYSTEM

A. The Territoriality Principle as an Alleged Obstacle to the Universal Protection of Intangible Cultural Heritage

In sum, because of the territoriality of IPRs, the second and third approaches to protection require the applicant to initiate separate legal actions in each and every country in which the IPRs invoked or attacked have been filed, granted or come into existence.⁸⁸ To overcome this territorial approach and to universally protect (not only semi-legally but also legally) the IPRs from misappropriation, different proposals have been suggested. According to these proposals, the universal protection of ICH can be achieved through the application, by analogy, of existing customary international law rules relating to the crime of piracy; by relying on the international law of human rights; or through the application of rules similar to those found in the 1995 UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects.⁸⁹ In contrast, these proposals deny that the same result can be achieved through the IPRs system, among other reasons,⁹⁰ because of the territorial nature of IPRs, which is also referred to as the territoriality principle.⁹¹

B. Crimes of Piracy, Cyber Attacks and Biopiracy

According to the first proposal, universal protection of ICH can be achieved through the application, by analogy, of the customary international law rules relating to the crime of piracy.⁹² The customary and conventional international law of piracy provides that piracy consists of: any act of violence; committed for private ends; on the high seas or in a place beyond the relevant jurisdiction of any State; and which is committed by one vessel against another.⁹³ As a result of the gravity of the crime and because it is of a type that is not exclusively limited as a matter of principle by territorial considerations, jurisdiction in relation to the crime of piracy is itself universal. Thus, "there are no territorial limits with respect to the prescription, apprehension, trial and conviction of the pirate",⁹⁴ and any State may send a warship to board a pirate vessel, arrest those on board and subject them to the jurisdiction of its courts.
First, the piracy analogy was adopted to extend universal jurisdiction to certain crimes occurring within territories under the jurisdiction of States, rather than in places beyond the jurisdiction of any State. For example, arts 4.2 and 7 of the 1970 Hague Hijacking Convention⁹⁵ extend universal jurisdiction to the crime of hijacking that occurs not only in flight but also on the ground, and precisely in the territory under the jurisdiction of a State.
Second, the UN Security Council acting under Chapter IV of the UN Charter has adopted Resolutions (SCR 1816, 1838, 1846 and 1851) on piracy taking place in Somali waters. Resolution 1816 authorised cooperating States to take the same steps with respect to piracy, among which universal jurisdiction is included,⁹⁶ in the Somali territorial sea as the law of piracy permits on the high seas. Resolution 1851 authorised cooperating States to go even further and engage in counter-piracy action on Somali soil. This scheme has since been renewed in Resolutions 1897, 1918 and most recently in Resolution 1950.⁹⁷
Third, the piracy analogy has been extended to include the appropriation and otherwise unlawful stealing of IPRs, as well as the production and distribution of pirated material. This is especially significant when the unlawful appropriation involves modern communication technologies, which by their very nature transcend traditional geographic space. This is illustrated by the case of so-called cyber attacks relating to "not just particular data, such as stock prices, but entire computer systems such as stock exchanges or power grids".⁹⁸ These cyber attacks are frequently described as the 21^st century's new form of disaggregated warfare, conducted by non-State collectiveness and which "displays new conceptions of territoriality".⁹⁹ To address these cyber threats the US Department of Defence released on 14 July 2011 the Dod Strategy for Operating in Cyberspace, according to which, "more than 60,000 new malicious software programs or variations are identified every day threatening our security or economy and our citizens".¹⁰⁰ In this context, according to US strategies, "strong partnerships with ... foreign nations are crucial"¹⁰¹ because determining in which State the attack occurred is extremely difficult for at least three reasons. First, because the crime itself occurs in cyberspace. Second, because the perpetrators of the crime operate beyond the territory of any one State using computers in multiple States. Third, because the wrongdoers have extensive technological tools at their disposal to make it look like the attack came from elsewhere. Each of these difficulties makes it impractical to assert territorial jurisdiction, rendering it necessary to extend universal jurisdiction to cyber attacks. The arguments for this extension are many, among which is the analogy with the crime of piracy.¹⁰² First both the crime of piracy and the crime of cyber attacks are committed beyond the control of any one State, and cyberspace can easily be analogised to the high seas given that no one State controls it. Second, each crime is committed by individuals or groups of individuals acting without State consent. Third, each crime threatens international trade and the global economy. Finally, each crime can be based on financial motives: thus, even when the primary aims of both crimes are mainly religious or political, the financing of the religious or political agenda is still a central issue.

Under this framework it has been suggested that the approach governing the crime of piracy be extended to the universal misappropriation of ICH, which has already been classified as biopiracy when the misappropriation of ICH concerns traditional knowledge related to genetic resources.¹⁰³

However, this proposal is not entirely convincing because it does not demonstrate that the crimes of hijacking, or the crime of 'piracy' perpetrated not on the high seas, or the crime of piracy relating to IPRs, are subject to universal jurisdiction under customary international law in contrast to piracy perpetrated on the high seas. In the case of hijacking, for example, the prevailing opinion suggests that while it appears that the return of the hijacked aircraft and the persons on board are required by customary international law, the crime iself is not subject to universal jurisdiction by virtue of custom.¹⁰⁴ Secondly, with regard to piracy taking place within Somali waters, the UN Resolutions in question clearly establish that they apply only to the situation in Somalia, and do not serve as a precedent for customary law or modify parties' rights and obligations more generally under international law.¹⁰⁵ Furthermore, to be classified as a cooperating State under the relevant UN Resolutions a State must be operating with the consent of the Somali Transitional Federal Government, as notified in advance to the UN Secretary General.¹⁰⁶ In addition, with respect to the crimes of cyber attacks and biopiracy, it seems that notwithstanding the recent and interesting academic proposals to prosecute these crimes under the principle of universal jurisdiction,¹⁰⁷ there is currently no customary rule which confers universal jurisdiction on these crimes and therefore territorial jurisdiction still applies. Moreover, with particular regard to the crime of intellectual property piracy perpetrated throughout the internet, the enforcement of the infringed IPRs usually remains national as a result of their territorial nature.¹⁰⁸ In sum, uniform, consistent and general State practice as well as opinio iuris ac necessitatis are still lacking with regard to universal jurisdiction as applied to the crimes of hijacking, piracy perpetrated not on the high seas, cyber attacks and biopiracy. Thus, in the absence of a customary international law rule on universal jurisdiction in relation to these crimes, it is apparent that this rule cannot be applied by analogy to the crime of misappropriation of ICH.

C. Human Rights to Intangible Cultural Heritage

According to a second proposal, the universal protection of ICH can be achieved by relying on the international rules concerning human rights. A first set of rules relates to the human rights of all persons and of minority groups or indigenous peoples to enjoy their own culture and thus also their own intellectual property as an expression of that culture.¹⁰⁹ Among those rules at the international level are art 27 of the 1966 International Covenant on Civil and Political Rights;¹¹⁰ art 15 of the International Covenant on Economic, Social and Cultural Rights;¹¹¹ and art 8(2)(a) of the United Nations Declaration on the Rights of Indigenous Peoples adopted by the United Nations General Assembly in 2007.¹¹² At the regional level, among the rules relating to the fundamental human right to enjoy culture, are art 22 of the Charter of Fundamental Rights of the European Union;¹¹³ and art 4(1) of the Framework Convention on the Value of Cultural Heritage for Society (Faro Convention) adopted under the framework of the Council of Europe.¹¹⁴

A second set of rules concerns the human rights of all persons and also of minority groups or indigenous peoples to property. Those rules adopt a broad concept of property, which includes IPRs, as will be explained later in this article. Among those rules at the universal level are: art 17 of the Universal Declaration of Human Rights;¹¹⁵ art 26(1) of the UN Declaration on the Rights of Indigenous Peoples;¹¹⁶ and art 15 of the ILO Convention concerning Indigenous and Tribal Peoples in Independent Countries.¹¹⁷ At the regional level the rules concerning such rights to property are: art 1 of Protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms (hereafter: ECHR);¹¹⁸ and art 17 of the Charter of Fundamental Rights of the European Union.¹¹⁹ Among the human rights instruments concerning the right to property, only certain rules explicitly refer to intellectual property, such as art 17(2) of the Charter of Fundamental Rights of the European Union. Yet other rules adopt a broad concept of property, using language that permits the inclusion of intellectual property, such as art 1 of Protocol 1 of the ECHR as interpreted by the European Court of Human Rights (ECtHR).¹²⁰

The proposal examined here correctly highlights that the rights to culture and to property are fundamental human rights, albeit of a qualified nature, referring as such "to those human rights which, while structurally individual, inevitably have a collective value also."¹²¹ Therefore States are obliged to respect, protect and fulfil those rights. Under this framework, the proposal analysed here suggests extending to IPRs the universal protection of human rights to culture and to property provided for by the existing mechanisms prohibiting their violations. In particular, according to the proposal here examined, among the existing mechanisms prohibiting human rights violations are the following: those established by the human rights regional treaties such as the ECHR, and also those mechanisms set up by national norms that vest universal jurisdiction in the forum State courts to hear the claims brought for certain conduct committed outside the forum State. An example of such a national rule is the US Alien Tort Statute, which provides US district courts with original jurisdiction over any civil action by an alien for a tort committed in violation of public international law or a treaty ratified by the United States outside US territory.¹²²

However, this proposal is not altogether convincing. Firstly, a number of the instruments noted above such as the UN Declaration on the Rights of Indigenous Peoples, are soft international law instruments and thus non-binding.¹²³ Secondly, as for the mechanisms prohibiting human rights violations provided for by the relevant human rights treaties such as the ECHR, those mechanisms only impose responsibility on States where the alleged violation of human rights occurs under the jurisdiction of these States.¹²⁴ To determine when that violation takes place under the jurisdiction of the defending State, the ECHR distinguishes between violations occurring on the national territory of the State party to the ECHR and violations occurring outside the Member State's territory. As for the former, jurisdiction of the territorial State is presumed and the State may in principle be imputed with any violation resulting from that situation when this State has not complied with its obligations under the Convention. In particular, in such a case the State shall protect the rights under the Convention from violations committed by third parties.¹²⁵ Where a violation occurs outside the national territory of the relevant State party, the victim of an alleged human rights violation must demonstrate that the State in question exercised effective control over the territory within which the violation took place and did not comply with its obligations under the Convention to an extent commensurate with this control exercised in fact.¹²⁶ Furthermore, a negative obligation not to violate the rights under the Convention will only be imposed upon the State when it is acting through its organs.¹²⁷ Thus, it is apparent that the mechanisms established by the ECHR to prohibit violations of the rights to culture and property, and thus to IP, are not designed to grant the universal protection of IPRs from misappropriation perpetrated by private corporations outside the territory of the defendant State. In fact, in those cases, the State against which an action is directed does not exercise any control over the territory of the foreign country where the violations occurred. Thirdly, those same mechanisms are adopted in certain cases in a manner that gives prevalence to the rights of private parties over the rights of entire communities or States. For example, in the Beyeler case¹²⁸ the ECtHR gave priority to the right to property of an alleged owner of a painting over the right of the Italian State to have the painting back. This approach might cause problems with regard to the sui generis IPRs on traditional knowledge, genetic resources and folklore, since those rights are of a collective nature. Fourthly, as for the mechanisms prohibiting human rights violations provided for by the US Alien Tort Statute, the United States Court of Appeals for the Second Circuit, in the recent decision of Kiobel v Royal Dutch Petroleum on 17 September 2010,¹²⁹ maintained that corporations cannot be sued under the US Alien Tort Statute for violations of international law because "the concept of corporate liability ... has not achieved universal recognition or acceptance of a norm in the relations of States with each other."¹³⁰ Thus, this decision may lead to the "demise of the Alien Tort Statute".¹³¹ As a consequence, the mechanisms established by this statute to prohibit the violations of the rights to culture and property, and thus to intellectual property, can no longer be relied upon to protect intellectual property from misappropriation by private corporations located outside the territory of the United States.

D. UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects as a Lesson for the Future

According to a third proposal, the universal protection of ICH can be achieved in the future through the application of rules similar to those found in the UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects signed in Rome on 24 June 1995 (UNIDROIT Convention).¹³² The UNIDROIT Convention applies to international claims for the restitution of cultural objects, which have been stolen or removed from the territory of a contracting State in a way that is contrary to its laws on the export of cultural objects. The Convention establishes that "the court or other competent authority of" a "Contracting State" shall "order the return of a cultural object illegally exported from the territory of" another contracting State under the request of this last State (art 5), whenever the removal of the object from its territory significantly impairs its interests. Thus, to determine if the cultural object in question can be considered illegally exported, and to decide when it shall be returned, the requested State applies the law of the State of origin of the object in question. Moreover, the UNIDROIT Convention contemplates the difficulties which possessors of tangible cultural objects have in tracing their origins, and therefore establishes that the possessor of a stolen cultural object shall be compensated in exchange for returning the cultural object whenever it is demonstrated that he has acted in good faith and with due diligence in acquiring the object. Finally, according to this Convention a claim for restitution of a cultural object is subject to a limitation period. However, specific and more favourable rules relating to the limitation period are established for cultural objects that are part of a "public collection" (art 3(7)) or which are are among "important sacred or communally cultural objects belonging to and used by a tribal or indigenous community in a contracting State as part of that community's traditional or ritual use" (art 3(8)).

According to this proposal, parallels exist between tangible cultural objects and ICH, which support the argument for the application of rules similar to the UNIDROIT Convention norms concerning the protection of tangible cultural objects to the universal protection of ICH. First, "the misappropriation of traditional knowledge . can conceptually be compared to the unauthorised traffic and export of cultural objects, to the extent that the goal of legal protection in both cases is to ensure that legitimate right holders recover control over their misappropriated goods, whether traditional knowledge or cultural property".¹³³ Secondly, as it is difficult for the possessors of tangible cultural objects to trace the origins of those objects, and since the UNIDROIT Convention contemplates the situation where the possessor acts in good faith with regards to a stolen cultural object, analogously, it can be difficult for a patent applicant to trace the origins of traditional knowledge associated with a genetic resource, and therefore a good faith patent applicant, who has acted with due diligence, should be subject to a lesser sanction when it subsequently appears that the invention in question had its basis in traditional knowledge. Thirdly, the justification for increased protection of objects belonging to a tribal or indigenous community "converges with the protection of traditional knowledge, which also targets the traditional use of local resources".¹³⁴ In addition, the justification for increased protection of cultural objects belonging to public collections "derives in particular from the fact that these goods are inventoried or otherwise identified", and therefore "it could similarly be expected that the level of protection against unauthorised misappropriation should be increased with respect to" ICH "for which there exists some publicity".¹³⁵ Fourth, the UNIDROIT Convention encourages the submission of disputes to arbitration, which "as a method of dispute resolution can and should be encouraged with regard to disputes arising from cases of misappropriation of traditional knowledge".¹³⁶

In sum, the UNIDROIT Convention provides a good model for regulating the misappropriation of ICH. However, since "the protection of tangible cultural property differs by its very nature from the protection of traditional knowledge"¹³⁷ the proposal here discussed, rather than invoking an extension of the UNIDROIT Convention itself, is in favour of the adoption of a separate international instrument incorporating the UNIDROIT Convention's "several valuable concepts ... [that] could help shape an appropriate system of protection against the misappropriaiton of traditional knowledge".¹³⁸

IV. TERRITORIAL AND UNIVERSAL PROTECTION OF INTANGIBLE CULTURAL HERITAGE INSIDE THE INTELLECTUAL PROPERTY SYSTEM

The Territoriality Principle Does Not Establish Implicit Exclusive Jurisdiction Rules

The proposals for the protection of ICH from misappropriation analysed so far, with particular reference to the first and second proposals, are all based on the same premise, namely that the universal protection of ICH from misappropriation cannot be achieved throughout the IPRs system owing to the territorial nature of IPRs and the territoriality principle. The territoriality principle would allegedly be an international procedural law criterion that would vest exclusive subject-matter jurisdiction in the courts of the State that granted the IPR concerned. Also, according to the proposals analysed here, the territoriality principle would serve as a conflict of laws connecting factor that would determine as the applicable law the lexi loci protectionis, that being the law of the country for which protection of the IPR is sought. Thus, the territoriality principle would require the applicant to initiate separate legal actions in each and every country in which, for example, a disputed patent application had been filed or granted, and the courts seised of those disputes would always apply their respective territorial laws as the lex loci protectionis. However, when the IPR involved has its origin in a country other than the forum State, the law of this State, applicable by virtue of it being the lex loci protectionis, ignores the misappropriated IPR and therefore cannot protect it. Yet, these arguments are not convincing. First, the territoriality principle does not vest exclusive subject-matter jurisdiction in the courts of the States that granted the IPR in question.¹³⁹ Secondly, the territoriality principle does not always impose the application of the lex loci protectionis. Therefore the territoriality principle does not prevent a case where IPRs have been misappropriated within many countries from being decided by a single competent court, according to the universality principle. Furthermore, the territoriality principle does not prevent the court seised from adjudicating a case where the entire IPRs misappropriation has occurred in many countries according to a single applicable law, the law of the country of origin according to the universality principle.

V. TERRITORIALITY PRINCIPLE AS AN EXPRESSION OF THE PROXIMITY PRINCIPLE

A. The Connection Between the Territoriality Principle and Proximity Reasons in IPRs Cases

The thesis proposed in this article advocates a new interpretation of the territoriality principle. Specifically, territoriality is understood as an expression of the proximity principle, which aims to determine the court and law more proximal to each individual case, and which was theorised by Lagarde in his general private international law course that he taught at the Hague Academy in 1986.¹⁴⁰ This thesis therefore purports that the territoriality principle so interpreted not only has both a substantive nature and an impact on the PIL rules recalling the lex loci protectionis, but also is a principle that determines which court has international jurisdiction as well as which law is the applicable law for the cases concerned, and therefore has a PIL nature. Yet, the territoriality principle, even though intended as also having a PIL nature, not only does not demand that an IPR be only protected in the courts of the country for which the right is granted, but also impedes the adoption of rules according to which IPRs shall be protected only by a single court or by a single law, namely the ones of the country for which protection is required. In other words, the territoriality principle, when intended as an expression of the proximity principle, is contrary to any PIL rules that pose exclusive jurisdiction or that recall an exclusive applicable law.

Before examining the thesis proposed in this article, it is relevant to remember that the connection between the territoriality principle and the proximity principle is supported in the work of other scholars. For example, in 1973 Auteri maintained that the reasons at the basis of the territoriality principle in intellectual property law are partially coincidental with the ones that ground the locus commissi delicti connecting factor,¹⁴¹ namely, the need to recognise the competence of the legal order that is more strictly connected,¹⁴² and thus more proximal, to the subjects involved. According to Auteri, the State that grants an IPR is the one more strictly connected to IPRs cases. In fact, besides being best placed to interpret the interests of the subjects that act in the market where the trademark is used, that State is also easily accessible by the subjects who operate in that market occasionally.¹⁴³

More recently, other scholars have linked the territoriality principle to proximity reasons.¹⁴⁴ These scholars came to the conclusion that the State more strictly connected to a case relating to an IPR validity issue principally raised is the one that granted this IPR. Therefore the exclusive jurisdiction rules in favour of this State are to be welcomed. In contrast, this State is not necessarily the State more strictly connected to an IPRs case involving a claim of infringement or a validity issue raised as a defence or a plea in objection. Therefore the exclusive jurisdiction rules in favour of this State are not to be welcomed.

Moreover, the ECJ in the GAT Case¹⁴⁵ maintained that "the rules of exclusive jurisdiction" laid down in art 16(4) of the Brussels Convention, now art 22(4) of the Brussels I Regulation,¹⁴⁶ "seek to ensure that jurisdiction" in intellectual property matters "rests with courts closely linked to the proceedings in fact and law".¹⁴⁷ Thus the ECJ justified the exclusive jurisdiction rule on the basis of proximity reasons. However, the ECJ reached conclusions that contradict the thesis proposed here. In fact, owing also to the proximity principle, the ECJ maintained that the rules concerning exclusive jurisdiction shall encompass also the IPRs validity claims raised incidentally or as a plea in objection.¹⁴⁸

In sum, on the one hand, these opinions have the merit of connecting the territoriality principle to proximity reasons. On the other hand, these opinions do not apply the entire thesis proposed by Lagarde on the proximity principle and its conclusions. Therefore, these opinions reach results that are different from one another, and also with respect to the conclusions proposed here.

B. Lagarde's Thesis on the Proximity Principle

In this context it is necessary to recall briefly the historical framework under which the thesis on the proximity principle was proposed by Lagarde.¹⁴⁹ First, scholars during the Middle Ages adopted a PIL method, the so-called statutory method, according to which, cases that contained connections to other States or cities were adjudicated: initially by determining the scope of the relevant national statute or substantive law; then by determining whether the case in question was indeed covered by the scope of that statute or substantive law; and finally, conditioned upon the affirmation of the previous determination, by exercising jurisdiction according to the forum law.

Subsequently, Savigny theorised a PIL method based on the abstract localisation of an individual case.¹⁵⁰ According to Savigny's method, cases were to be adjudicated firstly by analysing their constitutive elements (in contrast to the the statutory method, the scope of the national statutes that could apply to the cases in question was not examined). This particular analysis served to partition the relevant cases into categories of PIL rules established ex ante in order to determine the State most closely connected to cases of the same nature as those to be adjudicated. After the partition of individual cases into the categories of PIL rules, Savigny's method determined the competent court and the applicable law for the individual case by using the PIL rules associated with the category that corresponded to that case's location.

The 1950s American conflicts revolution criticised Savigny's method for insufficiently taking into account the individual facts and elements of each case.¹⁵¹ Thus, according to the American conflict of laws revolution, the determination of the State most closely connected to an individual case should be based on the facts of individual cases rather than on its inclusion within a predetermined category of a PIL norm. However, this determination should take place only at the time when the case needed to be addressed, and therefore ex post.

Finally, subsequent European scholars criticised the American conflict of laws revolution as unpredictable, because it did not sufficiently take into account the need for juridical certainty. Therefore, according to these scholars the law of the State most closely connected to an individual case was to be determined in two steps. First, by determining ex ante the State most closely connected to it, according to the Savigny method. Secondly, by verifying whether the individual case was in fact most closely connected to a country different from the one determined through the Savigny method, and thereby recalling the courts and laws of the most closely connected country as those competent to address the case at issue.

In this context, the proximity principle proposed by Lagarde follows this last thesis.¹⁵² Thus, PIL rules based on the proximity principle localise the relevant cases ex ante according to Savigny's method, but designate more than one applicable law or competent court, among which can be chosen the one court and law that is best placed to address the case according to its individual constitutive elements. Not every PIL provision is based on the proximity principle. Certain conflict of laws or international procedural rules are based on Lagarde's so-called competing principles, among which, and of particular interest here, is the sovereignty principle.¹⁵³ The sovereignty principle bases the PIL rules relating to legal institutions (for example, marriage and divorce), that, at least initially, are recognised and created by a State, on the exercise of its sovereign powers. On the one hand, those PIL rules vest jurisdiction in the courts of this same State, adopting jurisdiction criteria of a territorial or a personal nature that correspond to the same means with which the State indicates its subjective power, and are based on the sovereignty principle. On the other hand, the same rules based on the sovereignty principle also adopt connecting factors of a territorial or a personal nature, which have first a unilateral character, and which are then subsequently bilateralised.¹⁵⁴ With time, the States' sovereignty powers over these legal institutions can diminish and a corresponding increase of their private relevance can occur. Then, at the PIL level, a "defaillance du facteur de rattachement",¹⁵⁵ or failure of the connecting factor, of a territorial or personal nature, occurs, and a pressing need arises to substitute it with a connecting factor or a jurisdiction criterion based on the proximity principle.¹⁵⁶ As a consequence, the conflict of laws or international procedural rules adopting connecting factors or jurisdiction criteria based on the sovereignty principle are substituted by other criteria based on the proximity principle, or remain formally the same but start to be interpreted as though based on the proximity principle. Where this occurs the proximity principle penetrates more or less surreptitiously¹⁵⁷ the PIL rules adopting the sovereignty principle. Consequently, the PIL rules that are based firstly on sovereignty reasons but then which are ultimately conquered by the proximity principle, explicitly or implicitly (by way of interpretation) determine more than one competent court or laws.¹⁵⁸

As an example of the application of the proximity principle, Lagarde recalls the personal status of individuals, including the individuals' capacity (not relating to business), name, personal identity and parental/spouses relationships.¹⁵⁹ Originally (and also still presently in certain confessional States)¹⁶⁰ these legal institutions were strictly related to the sovereignty powers of their granting/recognising States. Thus, the courts competent to address these institutions were the courts of the State of the nationality or of the domicile/residence of the individual concerned. At that time, the conflict of laws provisions relating to personal status were unilateral PIL rules that limited their scope by adopting the nationality or respectively the domicile connecting factors, and that were subsequently bilateralised. Thus, the criteria of PIL rules mentioned above constituted the same means with which the State indicated its subjective power, and were based on the sovereignty

principle. Yet, thereafter, personal status began to be intended as no longer strictly related to the sovereignty of States that were recognising it, but rather as having a human rights and a private relevance. Thus, in the PIL field the jurisdiction criteria and the connecting factors based on the nationality or on the domicile of the persons involved started to be perceived as inadequate to determine their personal status. In fact, in many cases these connecting factors or jurisdiction criteria could not determine a single competent court or applicable law where the person involved did not have a nationality or a domicile, or where he/she had more than one. As a consequence, the nationality and domicile connecting factors were strongly criticised for their inability to address transnational cases, and a défaillance du facteur de rattachement arose, with a consequent pressure to substitute them with connecting factors or jurisdiction criteria that could determine a better law or forum to address the IPRs cases. This pressure originated in different rules deviating from the nationality and domicile connecting factors, adopting instead the habitual residence criterion or rules combining the nationality, domicile and residence factors.¹⁶¹ Where this occurred the proximity principle conquered the PIL rules, which were based on the sovereignty principle.¹⁶² So, for instance, initially in matters relating to divorce, the PIL rules based on the sovereignty principle vested jurisdiction in the courts of the nationality or of the domicile of both spouses. Nowadays, art 3 of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility,¹⁶³ on "general jurisdiction", is based on the proximity principle and establishes many jurisdictional criteria.¹⁶⁴

C. Extension to Intellectual Property Rights of Lagarde's Thesis on the Proximity Principle

The following remarks concern the application of Lagarde's proximity principle to the territoriality principle that characterises IPRs. Initially IPRs were intended as strictly relating to the sovereign powers of their granting State. Thus, international jurisdiction was vested in the courts of this granting State. Furthermore, the applicable law was determined by self-limited unilateral rules, which were to be applied to any IPRs granted in the territorial State. Therefore the territoriality principle adopted by those rules was a jurisdiction criterion and a connecting factor corresponding to the same means by which the State indicated its subjective power, and was based on the sovereignty principle.

Later in time, the territoriality principle was recognised by international conventions relating to IPRs, such as the Paris Convention for the Protection of Industrial Property (CUP),¹⁶⁵ the Berne Convention for the Protection of Literary and Artistic Works (CUB)¹⁶⁶ and the TRIPs agreement.¹⁶⁷ By recognising the territoriality principle as a connecting factor of the national unilateral norms mentioned above, the CUP, CUB and TRIPs agreements bilateralised this same principle. Since the territoriality principle was a connecting factor in the aforementioned unilteral norms and thus had a PIL nature, the territoriality principle retained its PIL nature when it was bilateralised by the CUP, CUB and TRIPs agreements.

After the recognition of the territoriality principle in those international conventions, the principle was adopted as the basis of the currently existing provisions expressly formulated as PIL rules. Among these provisions is art 5(3) of the EU Brussels I Regulation, which is interpreted on the basis of the territoriality principle, leading to the conclusion that an infringement of an IPR can occur only where the right is granted, filed or comes into existence, and that therefore the State of the IPR infringing action coincides with the State of the result of the IPR infringement and is the territorial State.¹⁶⁸ Also among these provisions is art 8 of the EU Rome II Regulation,¹⁶⁹ according to which "the law applicable to a non-contractual obligation arising from an infringement of an intellectual property right shall be the law of the country for which protection is claimed".

The perception of IPRs subsequently changed; they were generally no longer seen as linked to the State's sovereignty, but rather as private rights. As a consequence, the territoriality principle was strongly criticised for its inability to address transnational cases in a globalised world,¹⁷⁰ and a défaillance du facteur de rattachement constituted by the territoriality principle occurred.

Following this, there was a widespread call to substitute the territoriality principle with connecting factors or jurisdiction criteria that could determine a better law or forum to address IPRs cases. As a result, certain sets of rules deviating from the territoriality principle started to emerge.¹⁷¹ One of these sets of rules includes the provisions that adopt jurisdiction criteria which are not based on the territoriality principle. Among these provisions is art 2 of the EU Brussels I Regulation that confers international jurisdiction on the courts of the State where the defendant is domiciled in relation to registered or unregistered IPRs infringement claims, as well as to unregistered IPRs validity claims principally or incidentally raised. Thus, art 2 does not establish any additional requirements, namely consideration of whether the IPR in question exists in the forum State, or was infringed in the forum State, and therefore reflects a view that overcomes a strict territorial approach with respect to IPRs. Among the provisions at issue are also the norms that establish jurisdiction at the place of the IPRs infringement and that are interpreted as referring to the court of the State at the place of the action as well as to the court of the State at the place of the result.¹⁷² A second group of PIL provisions deviating from the territoriality principle are the rules that adopt connecting factors which are not based on the territoriality principle, such as the international, EU and national provisions on geographical indications lato sensu intended that determine the application of the lex originis, rather than of the lex loci protectionis, to issues of existence, validity, ownership and infringement.¹⁷³ These provisions were at the basis of the ECJ Budejovicky Budvar judgment of 2009, according to which the "mechanism" for protection of geographical indications lato sensu intended "is distinguished by the fact, derogating from the principle of territoriality, that the protection conferred is determined by the law of the Member State of origin and by factual circumstances and perceptions in that State".¹⁷⁴ Through the enactment of the aforementioned provisions, deviating from the territoriality principle, the proximity principle conquers the PIL rules that were once based on the territoriality principle.

D. Overcoming the Exclusive Jurisdiction and the Exclusive Designation of the Lex Loci Protectionis

To summarise, the rules deviating from the territoriality principle mentioned above demonstrate that the territoriality principle is to be intended as an expression of the proximity principle according to Lagarde's thesis. Let us now examine the consequences that follow.

A first consequence of the thesis relates to jurisdiction. From a de lege lata perspective the PIL norms that vest exclusive jurisdiction in a specific court in relation to IPRs cases shall be interpreted according to the territoriality principle based on the proximity principle. Therefore, the territoriality principle based on the proximity principle does not impede the vesting of jurisdiction in a court other than the exclusively competent one, when another court is more proximal to the individual case and, as such, allows for a better allocation of jurisdiction with respect to the case. In contrast, from a de lege ferenda perspective, when the proposed interpretation of those existing rules is not possible, the exclusive jurisdiction rules shall be overruled.

A second consequence relates to the applicable law. Thus, the territoriality principle based on the proximity principle shall be no longer interpreted as determining the exclusive application of the lex loci protectionis in relation to IPRs cases. So, from a de lege lata perspective, the PIL norms that recall the application of the lex loci protectionis in relation to IPRs cases shall be interpreted as not impeding the designation of an applicable law, such as the lex originis, or, under certain requirements, the law chosen by the parties other than those recalled, whenever the different law so recalled is more proximal to the individual case than the lex loci protectionis and therefore allows for its better adjudication. In contrast, from a de lege ferenda perspective, when the proposed interpretation of those rules is not possible, the existing rules recalling the exclusive application of the lex loci protectionis shall be overruled.

VI. CONCLUSIONS: UNIVERSAL PROTECTION OF INTANGIBLE CULTURAL HERITAGE INSIDE THE INTELLECTUAL PROPERTY RIGHTS SYSTEM

International Jurisdiction of the Courts in the Country of origin, and Lex Originis as the Applicable Law

The above analysis of the territoriality principle in relation to IPRs allows the conclusion that universal protection of ICH can be provided for within the IPRs system. In fact, as is the case for international jurisdiction, since the territoriality principle so interpreted does not impose any exclusive jurisdiction rule,¹⁷⁵ an applicant is already not obliged to initiate separate legal actions in each and every country in which a disputed IPR has been granted and infringed, but rather, can claim before a single court the universal protection of ICH inside the IPRs system. According to the already existing model rules mentioned above, which deviate from the territoriality principle in relation to the allocation of jurisdiction, the competent court to adjudicate the entire infringement case shall be, among others, the court of the country where the defendant is domiciled or the court of the State where the infringement occurred, interpreted as referring to the court of the State at the place of the action as well as to the court of the State at the place of the result.

As for the applicable law, since the territoriality principle here intended does not impose the exclusive application of the lex loci protectionis, the court seised is not obliged to apply the laws of each and every country in which a disputed IPR has been granted and infringed, but rather, can grant the universal protection of the ICH inside the IPRs system according to a single law. According to the model rules mentioned above, which deviate from the territoriality principle in relation to the applicable law concerned, the law applicable to the entire ICH misappropriation case in question shall be the law of the country most closely connected to the case. That State can be the State of origin of the ICH itself. In cases of cross-border or regional ICH the laws of the States of origin can be applied in a cumulative way as the laws of the countries most closely connected to the case. In fact, the cumulative application of more than one law to a case is well known in PIL, for instance with respect to transnational contracts which are subject to different applicable laws. At any rate, according to the model rules aforementioned, the alleged infringer of the ICH can invoke an exception from the single-law approach, claiming his good faith.¹⁷⁶

This result is in line with the (PIL) discipline of geographical indications.¹⁷⁷ It is true that with regard to geographical indications specific registers exist that certify, among other things, the existence and the country of origin of the geographical indications.¹⁷⁸ Those registers facilitate awareness of the trademark officers and assist companies to detect the situations where, for instance, a trademark cannot be registered because its registration would infringe a geographical indication.¹⁷⁹ However, with respect to ICH, the Lists provided for by the UNESCO ICHC or other relevant traditional knowledge, traditional cultural expressions or folklore lists, can be interpreted as registers relevant to certify, for example, the existence and the country of origin of the ICH. This interpretation facilitates the analytical capacity of the trademark officers and of the companies themselves to detect where, for instance, a certificate of origin of the traditional knowledge associated with genetic resources is necessary to fulfill an eventually existing disclosure requirement related to a patent application. In the absence of an inscription of the ICH item on any of the relevant lists, a general principle of international law could be applied according to which when it is difficult for a patent applicant to trace the origins of traditional knowledge associated with a genetic resource, the good faith patent applicant, who performed with due diligence, "should receive lesser sanctions if it appears at a later date that his invention was based on traditional knowledge".¹⁸⁰

The result proposed here is also in line with the rules established by the four sets of academic and professional Principles relating to the PIL discipline of IPRs.¹⁸¹ In fact, according to these Principles, when the alleged IPRs infringement is ubiquitous as well as of a multi-State nature and the laws of multiple States are pleaded, the court at the place of the defendant's domicile as well as the court at the place of part of the infringement might apply the law or laws of the State or States with close connections to the dispute to the issues of: existence; validity; duration; attributes; infringement of IPRs; and remedies for their infringement. That law, with respect to ICH misappropriation cases, could be determined in the lex originis.¹⁸²

The result proposed here is also in line with the opinion that the lex originis should be considered as the applicable law with respect to the existence and protection of traditional knowledge, so that "not only the courts where traditional knowledge protection is in force, but also the courts in developed countries where commercial use and profits occur would apply the law of the country or even the customs of the tribe where the tort, i.e. the unauthorised taking of the traditional knowledge took place".¹⁸³ However, this opinion differs from the thesis proposed here, since the former bases universal protection "upon the right of all peoples to cultural self-determination".¹⁸⁴

By contrast, the thesis proposed here considers this right to cultural self-determination as unable to grant universal protection to ICH and therefore bases this universal protection upon the IPRs systems themselves.

Finally, the result proposed here is also in line with the aforementioned WIPO negotiations, and UN CBD Nagoya Protocol, which recall the lex originis to grant universal protection to ICH.¹⁸⁵

*Dr Benedetta Ubertazzi, LLM (Spain), PhD (Italy), Full-Tenured Assistant Professor of International Law, Faculty of Law, University of Macerata, Italy; Research Fellow, Von Humboldt Foundation Fellowship for Experienced Researchers (Host Institute: Max Planck Institute for Intellectual Property and Competition Law, Munich). Thank you to Tullio Scovazzi, Pedro De Miguel Asensio, Lauso Zagato, Kamal Puri, Jacques de Werra, Ben Sullivan and Matthew Bedrossian for sharing some interesting cases and papers with me and for your valuable feedback. Any mistakes are my own.

1 - The notion of intangible cultural heritage (ICH) is broadly defined for the purposes of this article and includes not only the intangible cultural heritage items already inscribed or in the process of being inscribed in the United Nations Educational Scientific and Cultural Organisation (UNESCO) Lists under the 2003 Convention for the Safeguarding of Intangible Cultural Heritage, but also the intangible cultural expressions that are the object of the UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions: folklore and traditional knowledge. The UNESCO Convention for the Safeguarding of Intangible Cultural Heritage was adopted in Paris on the 17 October 2003 and entered into force on 20 April 2006 and as of 16 May 2011 is binding on 135 States. On this Convention see J Blake Commentary on the UNESCO 2003 Convention on the Safeguarding of the Intangible Cultural Heritage (Leicester, 2006); T Kono "UNESCO and Intangible Cultural Heritage from the Viewpoint of Sustainable Development" in A Yusuf (ed.) Standard-Setting in UNESCO (Leiden, Martinus Nijhoff Publishers, 2007) at 237; A Sola "Quelques réflexions à propos de la Convention pour la sauvegarde du patrimoine culturel immatériel" in J Nafziger and T Scovazzi (eds) Le patrimoine culturel de l'humanité — The Cultural Heritage of Mankind (Leiden, Martinus Nijhoff Publishers, 2008) at 487; B Srinivas "The UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage" in ibid at 529; L Zagato "La Convenzione sulla protezione del patrimonio culturale intangibile" in ID (ed) Le identità culturali nei recenti strumenti UNESCO (Padova, Cedam, 2008) at 27; T Kono The Impact of Uniform Laws on the Protection of Cultural Heritage and the Preservation of Cultural Heritage in the 21^st Century (Leiden, Martinus Nijhoff Publishers, 2010); T Scovazzi "La Convention pour la Sauvegarde du Patrimoine Culturel Immateriel" in B Vukas and T Sosic (eds) International Law: New Actors, New Concepts — Continuing Dilemmas (Liber Amicorum Božidar Bakotić, Leiden, Martinus Nijhoff Publishers, 2010) at 301; M Desantes "Safeguarding and Protecting Eurocentric and Indigenous Heritage: No Room for Marriage" in T Scovazzi, B Ubertazzi and L Zagato (eds) Il patrimonio culturale intangibile nelle sue diverse dimensioni, forthcoming in the series of books of the University Bicocca, Milan. The UNESCO 2005 Convention on the Protection and Promotion of the Diversity of Cultural Expressions was adopted in Paris on 20 October 2005 and entered into force on March 18, 2007 and as of 15 May 2011 is binding on 112 States. On this Convention see H Aylett "An international instrument for international cultural policy: The challenge of UNESCO's Convention on the Protection and Promotion of the Diversity of Cultural Expressions" (2010) 13 IJCL 355.

2 - See section III of this article.
3 - The Convention entered into force on 7 July 1998 and as of 3 March 2006 is binding on 31 States.
4 - See section III of this article.
5 - Ibid.
6 - See section V of this article.
7 - See sections V and VI of this article.
8 - Ibid.
9 - Ibid.
10 - M Shaw International Law (5^th ed, Cambridge University Press, Cambridge, 2003) at 178.
11 - Island of Palmas (or Miangas) Case (United States v The Netherlands) (1928) 2 UN Rep Intl Arb Awards 829 (Permanent Court of Arbitration).
12 - See S Wheatley "The non-intervention doctrine and the protection of the basic needs of the human person in contemporary international law" (1993) 15(2) Liverpool L Rev 189.
13 - D Kritsiotis "Public International Law and its Territorial Imperative" (2009) 30 Mich J Int'l L 547.
14 - M Frulli "Establishing Jurisdiction over International Crimes: Between Fragmented International Rules and Scattered Domestic Implementation", speech given at the University of Macerata June 10 2011 under the title 'International Criminal Law and its Application Within Domestic Legal Orders'. See <http://www.unimc.it/ricerca/istituti/istituto-di-diritto-internazionale/eventi/convegni-e-giornate-di-studio/workshop_10_june_2011_locandina_ a3_def.pdf> .
15 - O De Schutter Globalization and Jurisdictions: Lessons from the European Convention on Human Rights (Center for Human Rights and Global Justice, Working Paper 9, 2005, NYU School of Law, New York) at 4.
16 - Kritsiotis, above n 13, at 553.
17 - Ibid.
18 - Wheatley, above n 12, at 189-199.
19 - Kritsiotis, above n 13, at 554.
20 - Ibid.
21 - See Eric Goldman "Geolocation and A Bordered Cyberspace" (2007) Eric Goldman Blog <http://blog.ericgoldman.org/archives/2007/11/geolocation_and.htm> .
22 - Frulli, above n 14.
23 - T Scovazzi "Le concept d'espace dans trois conventions unesco sur la protection du patrimonie culturel" (2009) 26 L'Observateur des Nations Unies 7.
24 - See above n 1.
25 - Ibid.
26 - Scovazzi, above n 23, at 21.
27 - Adopted by the General Assembly of the States party to the Convention at its second ordinary session (Paris, France, 16 to 19 June 2008), amended at its third session (Paris, France, 22 to 24 June 2010).
28 - For the inscription of those elements, see the ICH section on the UNESCO website <http:// www.unesco.org/culture/ich/index.php?lg=en & pg= 00011> .
29 - Ibid. On this item, as well as on the other cross-border elements, see B Ubertazzi "Su alcuni aspetti problematici della convenzione per la salvaguardia del patrimonio culturale intangibile" forthcoming in Rivista di diritto internazionale (2011). See also P L Petrillo "La Dimensione Culturale del Patrimonio Agro-Alimentare Italiano" in Scovazzi, Ubertazzi and Zagato, above n 1.
30 - Scovazzi, above n 23, at 22-23.
31 - See above n 1.
32 - Thus, as it was recently emphasised, the territorial sovereignty of the States party to the Convention "does not stand alone. It is joined by an international aspect, the principle of an international cooperation and solidarity aimed at the awareness-raising for the need of an environment in which the diversity of expression can flourish, develop and pertain". See T Kono and S Wrbka "General Report" in Kono, above n 1, at 104.
33 - Scovazzi, above n 23, at 22.
34 - Ibid.
35 - Convention on the Protection and and Promotion of the Diversity of Cultural Expressions 2005, above n 1, preamble.
36 - For cases occurring at the national rather than international level in connection with "incidents involving theft of indigenous peoples' traditional knowledge and the blatant appropriation of culture", see A Riley "Straight Stealing": Towards an Indigenous System of Cultural Property Protection" (2005) 80 Washington L Rev 69.
37 - See P De Miguel Asensio "Transnational Contracts Concerning the Commercial Exploitation of Intangible Cultural Heritage" in Scovazzi, Ubertazzi and Zagato, above n 1, at 2; Desantes, above n 1.
38 - S Von Lewinski (ed) Indigenous Heritage and Intellectual Property. Genetic Resources, Traditional Knowledge and Folklore (2^nd ed, The Hague, Kluwer Law International, 2008). See also Desantes, above n 1.
39 - There is a two-way procedure: the ordinary work in the TRIPs Council on the one hand, and the special consultations carried out by the WTO Director General on the other. See Intellectual property differences 'better illuminated' — Lamy reports, 12 March 2010, available at <http://www.wto.org/english/news_e/news10_e/trip_12mar10_e.htm> .
40 - See Traditional Cultural Expressions/Expressions of Folklore: WIPO Doc WIPO/GRTKF/ IC/19/4; Traditional Knowledge: WIPO Doc WIPO/GRTKF/IC/19/5; Genetic Resources: WIPO Doc WIPO/GRTKF/IC/19/6; and Genetic Resources: WIPO Doc WIPO/GRTKF/ IC/19/7. All these documents are available at <http://www.wipo.int/tk/en/igc/index.html> .
41 - The Committee will ask the WIPO General Assembly for the renewal of its mandate. For further details see Ubertazzi B, Report to the 19^th Session of the Intergovernmental Committee on IP and Genetic Resources, Traditional Knowledge and Folklore, available at <https://www.aippi.org/download/commitees/166/Report166Report+WIPO+19th+Session+ of+the+Intergovernmental+Committee+on+IP+and+GRTKF++Geneva++July+18+to+22++2011English.pdf>.
42 - WIPO Doc WIPO/GRTKF/IC/17/5 (2010) (17th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, Geneva, 6-10 December 2010) at 82. Available at <http://www.wipo.int/edocs/ mdocs/tk/en/wipo_grtkf_ic_17/wipo_grtkf_ic_17_5.doc> .
43 - Ibid.
44 - Ibid.
45 - The Convention entered into force on 29 December 1993 and as of 10 December 2009 is binding on 193 States. On this Convention see Stoll and Von Halma "Indigenous Peoples, Indigenous Knowledge and Indigenous Resources in International Law" in Von Lewinski, above n 38, at 31-34, 38; A Taubman and M Leistner in Von Lewinski, above n 38, at 162; J McNeely "The Convention on Biological Diversity: Promise and Frustration" (1995) 4 J Environmental Development 33; P K Yu "Cultural Relics, Intellectual Property, and Intangible Heritage" (2008) 81 Temp L Rev 439; De Miguel Asensio, above n 37, at 2; Desantes, above n 1, at 3.
46 - The Protocol will enter into force 90 days after the deposit of the fiftieth instrument of ratification, acceptance, approval, or accession. As of 20 May 2011, the Protocol has been signed by 24 States. On this Protocol see E Tsioumani "Access and Benefit Sharing — The Nagoya Protocol" (2010) 40 Env Pol'y & L 288; S Crompton "The Nagoya Protocol: 'a disagreement reduced to writing'" Managing Intellectual Property (England, 2 November 2010); T Kursar "What Are the Implications of the Nagoya Protocol for Research on Biodiversity?" (2011) 61(4) BioScience 256; De Miguel Asensio, above n 37, at 2.
47 - See the Special Committee website at <https://www.aippi.org/?sel=questions&sub=specialco mmittees&viewQ=166#166>.
48 - See the Resolution at <https://www.aippi.org/download/commitees/166/RS166English.pdf>.
49 - See "The requirement of indicating in patent applications the source or country of origin of genetic resources and traditional knowledge involved in the making of the invention" WTO/ TRIPS/Q166 (2010) (Report of AIPPI Special Committee).
50 - Ibid.
51 - Ibid.
52 - See ibid, at 4 and see also the answer to Question 7 on the availability of such decisions.
53 - On some of the episodes referred to in the text see P Myburg "New Zealand/Aotearoa" in Kono, above n 1, at 661. For further information on the protection of New Zealand's intangible cultural heritage see also B Sullivan "Intangible Cultural Heritage in New Zealand/Aotearoa: A National Perspective" in Scovazzi, Ubertazzi and Zagato, above n 1.
54 - See "Māori take on hi-tech Lego toys" BBC Online (United Kingdom, 26 October 2001). Available at <http://news.bbc.co.uk/2/hi/asia-pacific/1619406.stm> .
55 - The Māori Mix cigarette controversy involved a number of issues, namely: the exploitation of Māori culture/community by a multi-national corporate entity; the use of cigarettes associating the illness and premature death of cigarette smokers with Māori culture; and the use of pseudo-Māori imagery/stylised art.
56 - P Shand "Scenes from the Colonial Catwalk: Cultural Appropriation, Intellectual Property Rights and Fashion" (2002) 3 Cultural Analysis 47.

57 - ?See Tao of Tattoos, Ta Moko — traditional tatoos of the Māori people <www.tao-of-tattoos. com/maori-tattoos.html> where it is stated "the majority of people who are using Moko inspired designs didn't take the time to learn anything about its origins or significance. It is understandable why some Māori are offended by the use of bits and pieces of their culture ... Hopefully the Māori people will continue their efforts to keep this beautiful and interesting cultural art alive, the rest of the world can come to respect this sacred cultural ritual, and the two can come to an agreement about its use in today's society".
58 - The use of Māori Kapa haka by Fiat aimed to stimulate the atmosphere of an All Blacks rugby match. See <http://www.mixedmediawatch.com/2006/07/31/when-haka-is-not-okay/> ["When the Haka is not Okay"].
59 - K Duckworth and T Huthwaite "Legal Protection for Tradtional Knowledge" Baldwins Intellectual Property (New Zealand, 3 June 2011) at [3]. Available at <http://www.baldwins. com/legal-protection-for-traditional-knowledge/> .
60 - Heitkiki infant formula is a baby milk powder formula marketed in New Zealand by Kiaora New Zealand International. Heitiki "can be loosely translated as a Māori Greenstone pendant worn around the neck": see "Heitiki Formula Made in New Zealand" NZ Herald Online (New Zealand, 31 May 2011) at [6]. Available at <http://www.nzherald.co.nz/business/news/ article.cfm?c_id=3 & objectid=10729253> .
61 - Duckworth and Huthwaite, above n 59, at [1].
62 - Tattoo artist S Victor Whitmill filed a copyright claim against the film studio releasing 'The Hangover Part 2' claiming his design was used on screen. Professor Ngahuia Te Awekotuku, author of Mau Moko: The World of Māori Tattoo, has stated "The tattooist has never consulted with Māori, has never had experience of Māori and originally and obviously stole the design [that ended up in the film]": ibid at [4]. The copyright claim has since been privately settled: "Mystery Settlement in 'Hangover 2' Tattoo lawsuit" TMZ (United States, 20 June 2011). Available at <http://www.tmz.com/2011/06/20/hangover-2-tattoo-mike-tyson-mystery-settlement-warner-brothers-ed-helms-face-tattoo/> .
63 - With regard to Lego see "Māori take on hi-tech Lego toys", above n 54. With regard to Philp Morris see H Gifford and S Bradbrook "Recent actions by Māori politicians and health advocates for a tobacco-free Aotearoa/New Zealand: A brief review" (Wellington, 2009) at 6. Available at <http://www.wnmeds.ac.nz/academic/dph/research/HIRP/Tobacco/Maori%20 tobacco%20control%20review%20-%20Occasional%20Paper%20Feb%202009.pdf> .
64 - Ibid.
65 - See "When the Haka is not Okay", above n 58.
66 - On this case see A Riley "Recovering Collectivity: Group Rights to Intellectual Property in Indigenous Community" (2000) 18 Cardozo Arts & Ent LJ 175.
67 - Ibid.
68 - Ibid.
69 - A Esarey "An Ami Couple Seeks Recognition for Their Music" (1995) <http://www.sinica. edu.tw/tit/special/0996_Innocence.html> . See also Riley, above n 66, at 175.
70 - Ibid.
71 - Von Lewinski, above n 38, at 510. See also De Miguel Asensio, above n 37, at [2]
72 - Gallo Africa Ltd and Others v Sting Music (Pty) Ltd and Others [2010] ZASCA 96.
73 - Ibid, at [2]-[4].
74 - Ibid.
75 - Ibid, at [19].
76 - On this case see S Srinivasan "Pirates of Traditional Knowledge, in Infochange News and analysis on social justice and development issues in India" Infochange (India, June 2010); K Sinha "India beats back US firm's bid to patent Ashwagandha formulations" The Times of India (India, 27 March 2010). Available at <http://articles.timesofindia.indiatimes. com/2010-03-27/india/28129540_1_patent-applications-european-patent-office-tkdl> .
77 - Case C-529/07 Chocoladefabriken Lindt and Sprungli AG v Franz Hauswirth GmbH [ECJ — 11 June 2009]. On this case see L Donnellan "Three-dimensional trade marks: the Mars and Lindt cases" (2010) 32 EIP Rev 132; R Moscona "Bad faith as grounds for invalidation under the community trade mark regulation - the ECJ decision in Chocoladefabriken Lindt and Sprungli AG v Franz Hauswirth" (2010) 32 EIP Rev 48.
78 - Chocoladefabriken Lindt, above n 77, at [9]-[20].
79 - Ibid.
80 - Regulation 40/94 on the Community Trademark [1994] OJ L011.
81 - Chocoladefabriken Lindt, above n 77, at [9]-[20].
82 - Ibid, at [21]. The Court of Justice of the European Union includes the former European Court of Justice as per art 19 of Treaty of the European Union (hereinafter ECJ).
83 - Ibid, at [53].
84 - See Gallo, above n 72, at [19].
85 - See the case referred to by Srinivasan, above n 76.
86 - Ibid. According to s 102(a) and (b) of the United States Patent Act 35 USC § 271, an invention's lack of novelty must be exhibited through written evidence, that is a printed publication, before invention or one year prior to the date of United States patent application within the United States or overseas. Thus, oral traditional knowledge existing somewhere else in the world cannot play a role in demonstrating the lack of novelty of patents registered in the United States. See D Downes and S Laird "Community Registries of Biodiversity-Related Knowledge: The Role of Intellectual Property in Managing Access and Benefit" (paper prepared for UNCTAD Biotrade Initiative, Villa de Leyva, 1999) at 16. Available at <http://www.ciel.org/Publications/CommunityRegistries.pdf> .
87 - K Angre "Measures to tackle bio-piracy: Safeguards for India's traditional medicine and knowledge" New Delhi Television (India, 15 October 2010). Available at <http://www.ndtv. com/article/india/measures-to-tackle-bio-piracy-safeguards-for-india-traditional-medicine-and-knowledge-60074> .
88 - K De Werra "Fighting Against Biopiracy: Does the obligation to Disclose in Patent Applications Truly Help?" (2009) 42 Vand J Transnat'l L 143.
89 - It is beyond the aim of this article to examine if and how tribal law can help in this respect. To this purpose see Riley, above n 36, at 69.
90 - These reasons other than the territorial nature of IPRs do not form the object of this article. For an examination of the other reasons referred to see D A Posey and G Dutfield Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities (Ottawa, IDRC, 1996); R K Paterson and D S Karjala "Looking Beyond Intellectual Property in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples" (2003-2004) 11 Cardozo J Int'l & Comp L 645; De Miguel Asensio, above n 37 at [2].
91 - On the territorial nature of IPRs also in a comparative perspective see A Peukert "Territoriality and Extraterritoriality in Intellectual Property Law" in G Handl and J Zekoll (eds) Beyond Territoriality: Transnational Legal Authority in an Age of Globalization (Leiden/Boston, Brill, 2011) at 1. Available at <http://www.jura.uni-frankfurt.de/ifrv1/peukert/forschung/ Territoriality_and_Extraterritoriality_in_Intellectual_Property_Law.pdf> .
92 - On the piracy analogy with regard to universal jurisdiction in general see E Kontorovich "The Piracy analogy: Modern Universal Jurisdiction's Hollow Foundation" (2004) Harv Int'l LJ 183.
93 - Piracy as such can occur only on the high seas and not in areas subject to State sovereignty. See Articles 101-107 and 110 of the UN Convention on the Law of the Sea (UNCLOS). The Convention was opened for signature on 10 December 1982 and entered into force on 14 November 1994. As of May 15, 2011 it is binding on 162 States.
94 - W Nagan "Misappropriation of Shuar Trational Knowledge (TK) and Trade Secrets: A Case Study on Biopiracy in the Amazon" (2010) 15 IJTPL 55. See also M Inazumi Universal Jurisdiction in Modern International Law: Expansion of National Jurisdiction for Prosecuting Serious Crimes Under International Law (Antwerp, Intersentia, 2005) at 52.
95 - The Convention for the Suppression of Unlawful Seizure of Aircraft was signed at the International Conference on Air Law, The Hague, on 16 December 1970. It entered into force on 14 October 1971 and as of 3 September 2008 is binding on 185 States.
96 - See Report of the Secretary-General on possible options to further the aim of prosecuting and imprisoning persons responsible for acts of piracy and armed robbery at sea off the coast of Somalia, including, in particular, options for creating special domestic chambers possibly with international components, a regional tribunal or an international tribunal and corresponding imprisonment arrangements, taking into account the work of the Contact Group on Piracy off the Coast of Somalia, the existing practice in establishing international and mixed tribunals, and the time and resources necessary to achieve and sustain substantive results UN Doc S/2010/394 (2010). This report sets out seven options for prosecuting the persons responsible for piracy off the coast of Somalia, among which, six concern the establishment of a Somali Court, or respectively of special chambers within the national jurisdiction of a State or States in the region, or of a regional tribunal, or of an international tribunal on the basis of an agreement between a State in the region and the UN or by Security Council Resolution under Chapter VII of the Charter of the United Nations.
97 - The Situation in Somalia SC Res 1846, A/Res/1846 (2008); The Situation in Somalia SC Res 1897, S/Res/1897 (2008); The Situation in Somalia SC Res 1918, S/Res/1918 (2010); The Situation in Somalia SC Res 1950, S/Res/1950 (2010). See also A Roach "Agora: Piracy Prosecutions. Countering Piracy off Somalia: International Law and International Institutions" (2010) 104 AJIL 400.
98 - See K Gable "Cyber-Apocalypse Now: Securing the Internet Against Cyberterrorism and Using Universal Jurisdiction as a Deterrent" (2010) 43 Vand J Transnat'l L 101. See also J Ophardt "Cyber Warfare and the Crime Against Aggression: The Need for Individual Accountability on Tomorrow's Battlefield" (2010) Duke L & Tech Rev 3; M Libicki Cyberdeterrence and Cyberwar (Santa Monica, Rand, 2009).
99 - See Ophardt, ibid, at 'Introduction'.
100 - United States Department of Defense "DOD Strategy for Operating in Cyberspace" (press release, 14 July 2011).
101 - Ibid.
102 - Gable, above n 98, at 105. Among the arguments for the extention of universal jurisdiction to cyberattacks, the author highlights the heinous nature of the crime which "is on par with traditional terrorism, genocide and crimes against humanity", crimes which are "subject to universal jurisdiction".
103 - Nagan, above n 94, at 18.
104 - A Boleslaw International Law (Maryland, 2005) at 202. Occasionally unilateral measures were resorted to, as demonstrated by the Entebbe raid in 1976 by Israelis commandos, who rescued mostly Jewish passengers on an Air France airliner held hostage at a Ugandan airport. However, the Ugandan government protested strongly against this unilateral act. On this case see E McDowell "United Nations: Security Council Debate and Draft Resolutions Concerning the Operation To Rescue Hijacked Hostages at the Entebbe Airport" (1976) 15 Int'l Legal Mat 1224. In a similar incident German soldiers successfully recaptured a hijacked Lufthansa airplane in Mogadishu, Somalia. This time the local government gave its consent.
105 - See D Guilfoyle "Piracy Off Somalia: UN Security Council Resolution 1816 and IMO Regional Counter-Piracy Efforts"(2008) 57 ICLQ 690; J T Gathii "Kenya's piracy prosecutions" (2010) 104 AJIL 416.
106 - French commandoes seized the Le Ponant hijackers on Somali soil in Summer 2008, with the Somali Transitional Federal Government expressly consenting to the mission. However, it is not clear whether France received permission in advance or simply acquiescence after the fact.
107 - See Gable, above n 98; Ophardt, above n 98.
108 - On the territorial nature of IPRs, see below.
109 - On the following rules and on the topic in general see L Zagato "Intangible Cultural Heritage and Human Rights" in Scovazzi, Ubertazzi and Zagato, above n 1.
110 - Opened for signature 16 December 1966, entered into force 23 March 1976. According to which "in those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language".
111 - Opened for signature 16 December 1966, entered into force 3 January 1976. According to the Covenant "the States Parties to the present Covenant recognize the right of everyone: a) to take part in cultural life; b) to enj'oy the benefits of scientific progress and its applications; c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".
112 - Declaration on the Rights of Indigenous Peoples GA Res 61/295, A/Res/61/295 (2007). The relevant rule requires States to "provide effective mechanisms for prevention of, and redress for ... any action which has the aim or effect of depriving [indigenous people] of their integrity as distinct people, or of their cultural values or ethnic identities".
113 - Signed 7 December 2000. It states that "the Union shall respect cultural, religious and linguistic diversity".
114 - Adopted in Faro on 27 October 2005, and entered into force on 1 June 2011, establishing the right of everyone to benefit from cultural heritage (and to contribute to its enrichment).
115 - Establishing that "(1) Everyone has the right to own property alone as well as in association with others. (2) No one shall be arbitrarily deprived of his property".
116 - Which gives protection not only to land and territories but also, for our purpose, to "resources which [indigenous people] have traditionally owned, occupied or otherwise used and acquired". See International Covenant on Economic Social and Cultural Rights, above n 111.
117 - Adopted in Geneva on 27 June 1989, entered into force 5 September 1991. It established that "1. The rights of the peoples concerned to the natural resources pertaining to their lands shall be specially safeguarded. These rights include the right of these peoples to participate in the use, management and conservation of these resources. 2. In cases in which the State retains the ownership of mineral or sub-surface resources or rights to other resources pertaining to lands, governments shall establish or maintain procedures through which they shall consult these peoples, with a view to ascertaining whether and to what degree their interests would be prejudiced, before undertaking or permitting any programmes for the exploration or exploitation of such resources pertaining to their lands. The peoples concerned shall wherever possible participate in the benefits of such activities, and shall receive fair compensation for any damages which they may sustain as a result of such activities".
118 - As amended by Protocol No 11, adopted in Paris on 20 March 1952, according to which "every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law".
119 - Stating that "1. Everyone has the right to own, use, dispose of and bequeath his or her lawfully acquired possessions. No one may be deprived of his or her possessions, except in the public interest and in the cases and under the conditions provided for by law, subject to fair compensation being paid in good time for their loss. The use of property may be regulated by law in so far as is necessary for the general interest. 2. Intellectual property shall be protected". See Declaration on the Rights of Indigenous Peoples, above n 112.
120 - With the judgments of Smith Kline and French Laboratories Ltd v The Netherlands (1990) 66 DR 70 (ECHR); Melnychuck v Ukraine [2006] ECHR 639; (2006) 42 EHRR 42 (ECHR); Anheuser Bush v Portugal (73049/01) Grand Chamber, ECHR 11 January 2007 (at [72]); and Balan v Moldova (19247/03) ECHR, 29 April 2008 (at [34]), the ECtHR characterised patents,copyrights and trademarks as property rights according to art 1 of Protocol 1 of the ECtHR.
121 - See Zagato, above n 1, at [4].
122 - Alien Tort Claims Act 28 USC § 1350.
123 - They are seen to provide a "basic doctrinal framework for the protection of traditional knowledge as a means of conserving the distinct cultural identity of indigenous people": see A Taubman and M Leistner, above n 45 at 172.
124 - P Palchetti Azioni di forze istituite o autorizzate delle Nazioni Unite davanti alla Corte europea dei diritti dell'uomo: i casi Behrami e Saramati (2007) Rivista di diritto internazionale 681.
125 - Ibid.
126 - Ibid.
127 - Ibid.
128 - Beyeler v Italy (33202/96) Grand Chamber, ECHR, 5 January 2000.
129 - Judgment available at <http://www.ca2.uscourts.gov/decisions/isysquery/9759bde9-a532-4af2-bf3f-f95a5b2f84c9/5/doc/06-4800-cv_opn.pdf> .
130 - Ibid, at 49, point 2.
131 - See T Childress "Is it the End of the Alien Tort Statute" in Conflict of Laws.net. News and Views in Private International Law (International, 17 September 2010). Available at <http:// conflictoflaws.net/2010/is-it-the-end-of-the-alien-tort-statute/> and further references.
132 - See above n 3.
133 - De Werra, above n 88 at 162.
134 - Ibid.
135 - Ibid.
136 - Ibid, at 165. Another similarity is that "delimitation between tangible and intangible cultural heritage create difficulties since both forms of heritage may overlap": see De Miguel Asensio, above n 41, at [1].
137 - De Werra, above n 88 at 159.
138 - Ibid, at 165.
139 - On the territoriality principle and on the reasons against its interpretation as an internationaljurisdiction rule in relation to IPRs, see J Drexl "Internationales Immateralgiiterrecht" (2006) 11 Münchener Kommentar zum Bürgerlichen Gesetzbuch 819 at 820; N Boschiero "Il principio di territorialità in materia di proprietà intellettuale: conflitti di leggi e giurisdizione" (2007) 41 Annali Italiani del Dirito d'Autore, della cultura e dello spettacolo 34 at 99; G Dinwoodie "Developing a Private International Intellectual Property Law: the Demise of Territoriality" (2009) 51 Wm & Mary L Rev 711; Peukert, above n 91.
140 - P Lagarde "Le principe de proximite dans le droit international prive contemporain" (1986)196(1) Recueil des Cours 29. The author recognises that the proximity principle has adifferent influence on the conflict of laws provision to that on the international jurisdictionrules. However, for the scope of this paper the fact that this influence is different is notrelevant, so far as the exclusive jurisdiction rules are concerned. On Lagarde's course withparticular regard to the application of the proximity principle to the conflict of laws field,see T Ballarino and G P Romano "Le principe de proximite chez Paul Lagarde" in Le droitinternational prive: esprit et méthodes (Mélanges en l'honneur de Paul Lagarde, Paris, 2005) at37. On Lagarde's course with regard to international jurisdiction issues see E Pataut "Principede souveraineté et conflits de juridictions (Étude de droit international privé)" (préface parPaul Lagarde, Paris, 1999) ; A Nuyts "L'exception de forum non conveniens" (Bruxelles-Paris,Emile Bruylant 2003) at 463 and 520. On Lagarde's course with regard to both internationaljurisdiction and conflict of laws see D Kokkini-Iatridou "Les clauses d'exception en matièrede conflits de lois et de conflits de j'uridictions — ou le principe de proximite" (Dordrecht/Boston/London, Martinus Nijhoff, 1994); C Kessedjian "Le principe de proximite vingt ansapres, in Le droit international privé: esprit et methodes" (Melanges en l'honneur de PaulLagarde, Paris, 1999) at 507. Of note, this last author criticises the proximity principle as notbeing able to influence the international jurisdiction rules related to complex issues, such asmulti-State human rights civil claims.
141 - See P Auteri Territorialità del diritto di marchio e circolazione di prodotti "originali" (Milano, Giuffrè, 1973) at 100.
142 - Ibid, at 116.
143 - Ibid, at 100.
144 - See M Pertegas Sender Cross-Border Enforcement of Patent Rights: An Analysis of the Interface Between Intellectual Property and Private International Law (Oxford, Oxford University Press, 2002) at 19 and 22, invoking "the principle of proximity" in IPR cases and interpreting it as determining the territorial State as the country most closely connected to IPRs. The same conclusion is reached by C Gonzalez Beilfuss "Nulidad e infracción de patentes en Europa después de GAT y ROCHE" in Anuaruo Español de Derecho Internacional Privado (2006) at 275. See also D Arroyo "Competence exclusive et competence exorbitante dans les relations privees internationales" (2006) 323 Recueil des Cours 37, who demonstrates that the international jurisdiction criteria, which vests exclusive jurisdiction, are based on two different principles, namely the competition between fora and what is considered to be their "reasonable character", that is expression of the "proximity" principle.
145 - Case C-4/03 GAT v LuK [2006] EUECJ C-4/03; [2006] ECR I-6509.
146 - Regulation 44/2001 on Intellectual Property [2001] OJ L12/1 transformed into a Community legal instrument (communitarised) the Brussels convention on jurisdiction and recognition and enforcement of judgments in civil and commercial matters of Sept. 27, 1968.
147 - GAT v LuK, above n 145, at [21]. See also the opinion of Advocate General Geelhoed in the GAT/Luk case, above n 145, delivered on 16 September 2004 at point 19: "the courts of the Member State in which the patent is granted are best placed to adjudicate upon its validity, because of their physical proximity and also because they are legally most closely connected with the granting of the patent".
148 - On the scope of exclusive jurisdiction rules see B Ubertazzi "Intellectual Property Rights and Exclusive (Subject Matter) Jurisdiction: Between Private and Public International Law" (2011) 15 Marquette IPL Rev 357.
149 - See the references in Lagarde, above n 140, at 29.
150 - Ibid.
151 - Ibid, at 25. See also Kessedjian, above n 140, at 509.
152 - Lagarde, above n 140, at 25.
153 - Ibid, at 49. See also Pataut, above n 140.
154 - "Cette bilatéralisation des règles de conflit fondées sur l'idée de souveraineté ne résulte pas de la nature des choses. Elle résulte d'une concession de l'Etat du for, elle-même fondée sur l'idée de réciprocité" : Lagarde, above n 140, at 51-52.
155 - Ibid, at 72.
156 - "Une pression très forte s'exerce pour substituer au fondement d'allégeance un rattachement fondé sur le principe de proximité": ibid at 95.
157 - "Pénètre plus o moins subrepticement": ibid.
158 - See Pataut, above n 140, at 665 according to whom "lorsque les considérations de localisation, de proximité, devenaient majoritaires, la solution de la compétence exclusive devait être évite" ("whenever the instances of localisation, of proximity, prevail, the solution of the exclusive jurisdiction rules shall be avoided"). According to Pataut, in order to compensate the overcoming of the exclusive jurisdiction rules in favour of the forum State, the competency to verify the law applied by the foreign court, whose judgment the forum State court shall recognise and enforce, shall be established. Namely, the forum State court shall have the competency to verify that the foreign court applied the forum State law in adjudicating issues relevant to the national interests of the forum State. See ibid, at 442 and 443.
159 - Lagarde, above n 140, at 66.
160 - See B Ubertazzi La capacità delle persone fisiche nel diritto internazionale privato (Padova 2006) at 66.
161 - See the references in Lagarde, above n 140, at 66.
162 - Ibid.
163 - Council Regulation 2201/2003 on concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters in [2003] OJ L338 at 1.
164 - According to art 3 of the Regulation in question, "1. In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State /(a) in whose territory: / - the spouses are habitually resident, or / - the spouses were last habitually resident, insofar as one of them still resides there, or / - the respondent is habitually resident, or / - in the event of a joint application, either of the spouses is habitually resident, or / - the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or / - the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there; / (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses".
165 - Adopted 20 March 1883, as amended on 14 July 1967.
166 - Adopted 9 September 1886, as amended on 28 September 1979.
167 - Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs), Annex 1C of the Marrakesh Agreement Establishing the World Trade Organisation, signed in Marrakesh, Morocco on April 15, 1994, entered into force 1 January 1995. On the TRIPs agreement see M Ricolfi "The First Ten Years of the TRIPs Agreement: Is There an Antitrust Antidote Against IP Overprotection Within TRIPs?" (2006) 10 Marq Intell Prop LRev 305 at 331.
168 - See P De Miguel Asensio "Cross-border Adjudication of Intellectual Property Rights and Competition between Jurisdictions" (2007) 34 Annali Italiani del Dirito d'Autore, della cultura e dello spettacolo 123; Boschiero, above n 139, at 80; D M Vicente "La propriété intellectuelle en droit international privé" (2008) 335 Recueil des Cours 9-503 at 390; H Schack Internationales Zivilverfahrensrecht (2^nd ed, Beck Juristischer Verlag, 2010) at 122. For a criticism see D Yokomizo "Intellectual Property Infringement on the internet and Conflict of Laws" (2011) AIPPI Journal 105.
169 - Regulation No 864/2007 on the law applicable to non-contractual obligations (Rome II) [2007] OJ L199 at 40. See the references in N Boschiero "Infringement of Intellectual Property Rights. Comment on Article 8 of the Rome II Regulation" (2007) 9 YPIL 87; S Bariatti "The Law Applicable to the Infringement of IP Rights under the Rome II Regulation" in (S Bariatti ed) Litigating Intellectual Property Rights Disputes Cross-Border: EU Regulations, ALI Principles, CLIP Project (CEDAM, 2010).
170 - See Dinwoodie, above n 139, at 711.
171 - It is not the purpose of this article to analyse all sets of rules deviating from the territorality principle. However, for an exhaustive list of such rules and corresponding analysis see B Ubertazzi Jurisdiciton in Intellectual Property. The impact of private and public international law on exclusive (subject matter) jurisdiction (forthcoming, 2012).
172 - Yokomizo, above n 168, at 105.
173 - C Otero Garcia-Castrillon "Territorialidad y estado de origen en las denominaciones de origen, indicaciones geográficas y especialidades tradicionales garantizadas" in B Ubertazzi and E Muniz Espada (eds) Le indicazioni di qualità degli alimenti, Diritto internazionale ed europeo (Milano, Giuffrè, 2009) at 65. On the differences and similarities between geographical indications and ICH see T Kono "Geographical Indication and Intangible Cultural Heritage" in B Ubertazzi and E Muniz Espada, ibid at 289.

174 - Case C-478/07 Budějovický Budvar, národní podnik v Rudolf Ammersin [2009] ECR I-07721 at [79]. See also Case C-3/91 Exportur [1992] EUECJ C-3/91; [1992] ECR I-5529 at [12], [13] and [38].

175 - Furthermore, exclusive jurisdiction rules are even considered illegal according to public international law, as it demonstrated in another article of mine, see Ubertazzi, above n 171.
176 - Ibid.
177 - Ibid.
178 - Ubertazzi and Muniz Espada, above n 173.
179 - G Sironi "Conflitti tra marchi e indicazioni comunitarie di qualità (DOP, IGP, STG)" Ubertazzi and Muniz Espada, above n 173, at 208.
180 - De Werra, above n 88, at 164.
181 - Namely the ALI Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes, adopted on 14 May 2007; the "European Max Planck Group on Conflict of Laws in Intellectual Property, Principles for Conflict of Laws in Intellectual Property" published as a draft in 25 March 2011; the "Transparency of Japanese Law Project, Transparency Proposal on Jurisdiction, Choice of Law, Recognition and Enforcement of Foreign Judgments in Intellectual Property", finalised in 2009; the "Principles of Private International Law on Intellectual Property Rights, Joint Proposal Drafted by Members of the Private International Law Association of Korea and Japan (Waseda University Global COE Project)", of 14 October 2010. On those sets of principles see recently J Basedow, T Kono and A Metzger (eds) Intellectual Property in the Global Arena (Mohr Siebeck, Tübingen, 2010) at 98.
182 - Ibid.
183 - Peukert, above n 91, at [5].
184 - Ibid.

185 - Ibid.