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Khrushchev Ekwueme - Protection of Foreign Investment in Context

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Khrushchev Ekwueme

Protection of Foreign Investment in Context

Series: Nomos Universitätsschriften - Recht

Volume 496 2007

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The Right to Own Property S. 49-51

„… tribunals waswhether the meaning of property extended to intangible property such as contractual rights, i.e …” „… the contract.«822.3. The Right to Own PropertyUnder international law, a foreigner may acquire …” „… with an alien’s right to property.83 According to Sinare: »Evidence of the right to property can be …”

Right to Acquire and Own Immovable Property S. 31-33

„… compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of …” „… right of access for the determinationof his interest in the property and the amount of compensation to a …” „… tojudicial review.1.2.1. Right to Acquire and Own Immovable PropertySection 43 of the 1999 Constitution …”

Concept of Property S. 48-49

„… 48Chapter TwoThe Right of Property under International Law2.1 IntroductionAnalytically …” „… the conceptof property and the right to property under international law. The other issues regarding …” „… tribunals waswhether the meaning of property extended to intangible property such as contractual rights, i.e …”

Property Guarantee under the African Charter S. 51-55

„… Convention, which protect property rights, and some of them have agreed to the use international arbitration …” „… , LFN, 1990. Specifically, the right to property is guaranteed by Article 14 of the African Charter as …” „… follows: »The right to property shall be guaranteed. It may only be encroached upon in the interestof …”

Right of Access to Court and the African Charter S. 55-58

„… acquisition of his property. The actualization ofthe right of access to court is not problematic under civil …” „… entrenchedfundamental right to his property by virtue of Section 31 of the 1963 Constitution and Section 40 of the 1979 …” „… Constitution. As his right to his property is therefore his fundamentalright, he is entitled to make …”

Creeping Expropriation S. 62-64

„… the fundamental rights of ownership of theirproperty.146 The core incidents of ownership or property …” „… (theright to the fruits of the property) and absus (the right to exclude and dispose ofthe property).147 …” „… property rights of a foreign investor through multiple measures of his hostState. Each singular measure …”

Introduction S. 30-31

„… compulsorily and no right over or interest in any such property shall be acquired compulsorily in any part of …” „… right of access for the determinationof his interest in the property and the amount of compensation to a …” „… guaranteeing property rightsin Nigeria. In order to properly analyze these provisions, it is necessary to …”

Introduction S. 48

„… 48Chapter TwoThe Right of Property under International Law2.1 IntroductionAnalytically …” „… the conceptof property and the right to property under international law. The other issues regarding …” „… , international law recognizes three core-intertwined issues relevantto the taking of the property of foreign …”

Annulment of Contract S. 65-67

„… denied the claimant the unexpired contractual and property rights covered bythe licence contrary to the …” „… 65Another case of indirect taking of contractual rights came up in the NorwegianShipowners’ Claims …” „… contention of the UnitedStates that it did not expropriate the contractual rights because it intended to …”

Indirect Taking of Contractual Rights S. 64-65

„… expropriated by that State.1553.3.2. Indirect Taking of Contractual RightsThis type of indirect taking refers …” „… to a situation where a State enacts a law or takesa measure directed at taking the tangible property …” „… of a foreign investor which ultimately renders nugatory the contractual rights connected to the …”

Abbreviations S. 17-22

„… Intellectual Property RightsU.S. United States21U.S. United States Supreme Court ReportsUACN United African …” „… . PartRACHPR Review of the African Commission of Human and Peoples’ RightsRIAA Reports of International …” „… Rights and Duties of StatesCh.D. Law Reports: Chancery DivisionCLB Commonwealth Law BulletinCTR Claims …”

Right of Access to Court S. 183-185

„… actions againstthe government and its agencies in Nigeria. Section 3 of the Petition of RightsAct679 …” „… 1837.2. Right of Access to CourtSection 25 of the NIPC Act guarantees investors (both foreign and …” „… local) in Nigeria the right of access to court to challenge circumstances surrounding the taking of …”

Constitutional Concept of Property S. 33-35

„… Constitution. The reason for the expressinclusion of the right to acquire immovable property in the 1999 …” „… [...]. The property guarantee is intended to secure to the bearer of the basic right a sphere of liberty in …” „… expressly or impliedly theright to own property. Nevertheless, that right has never been absolute in …”

Compulsory Acquisition or Possession S. 35-40

„… Law provides that: »(1) Property and the right of inheritanceshall be guaranteed. Their content and …” „… Rights, as where right in property is destroyed by restriction on its use, although the owner remains in …” „… right to property by means of limitations on the State’s powers, the deprivation contemplated in clause …”

Applicable Standard of Compensation S. 44-46

„… compensation provided represents a fair balancebetween the fundamental rights of the individual property owner …” „… State v. Aideyan67 categorically stated that:»The right to property in Nigeria is entrenched in Nigeria …” „… under Section 40 of the 1979Constitution. That right is inviolate and such property or any right …”

Public Purpose Requirement S. 40-44

„… compensation provided represents a fair balancebetween the fundamental rights of the individual property owner …” „… that the acquisition of movable property or interest in immovable property should be for a …” „… implies that a compensated acquisition of property for aprivate purpose is not unconstitutional …”

Final Conclusion S. 299-306

„… beyond »movable property« and »interest in immovableproperty« to embrace virtually any right with …” „… proprietary value of foreign investmentor deprive a foreign investor of the property rights in his investment …” „… (corporeal) property and does not extend to the intangible(incorporeal) asset dimension of foreign investment …”

Public Purpose S. 87-89

„… right of States to take the property of foreign investorsis subject to the requirement that it serves a …” „… property, rights and the interests of the Claimant clearly violates public international law as it was made …” „… 87Chapter FourThe Legal Conditions for Taking the Property of Foreign Investors4.1 …”

Bibliography S. 313-324

„… and Bunmi Fagbemi (eds.), Nigeria’sForeign Investment Laws and Intellectual Property Rights, London …” „… (eds.), Nigeria’s Foreign Investment Laws and Intellectual Property Rights, London: University of …” „… and Intellectual Property Rights London: University of London Press, 1994, 43-67.Osunbor, Oserheimen A …”

Titelei/Inhaltsverzeichnis S. 2-16

„… 1999 Constitution 311.2.1. Right to Acquire and Own Immovable Property 321.2.2. Constitutional Concept …” „… . Applicable Standard of Compensation 441.3. Conclusion 46Chapter TwoThe Right of Property under International …” „… Law 482.1 Introduction 482.2 Concept of Property 482.3. The Right to Own Property 492.4. Property …”

Conclusion S. 58-59

„… Parliament.«133 2.6. ConclusionClearly the foregoing is not an exhaustive analysis of the right to property …” „… and service contract with the Nigerian National Petroleum Companyacquires a property right protected …” „… of roads, airports,power generating and communication facilities acquires a property right protected …”

Expropriation and Nationalization S. 61-62

„… fundamental rights of ownership of theirproperty.146 The core incidents of ownership or property rights …” „… the fruits of the property) and absus (the right to exclude and dispose ofthe property).147 Although …” „… Expropriation may bedefined as a small-scale taking of the shares, estates, factories or any other property …”

Nationalization S. 95-99

„… Kingdom333, where the European Court of Human Rights stated that:»The taking of property without payment …” „… . The applicants’ complaint was that they were deprived of the property rights in their estates by the …” „… Protocol to the European Convention on Human Rights as follows:»Especially as regards a taking of property …”

Definition of Investment S. 164-165

„… Act covers:a) Property in movable, immovable property and rights derived therefrom;b) Intellectual …” „… property rights (copyrights, patents, trademarks);c) Right derived from shares, stock, debentures and other …” „… . Sodipo & B. Fagbemi (eds.), Nigeria’s Foreign Investment Laws and Intellectual Property Rights, 1994 …”

Conclusion S. 46-47

„… of revocation on a property holder the need forthe revoking authority to ensure that the right to a …” „… 46for unexhausted improvements on land following the revocation of the right of occupancy over such …” „… of the 1999 Constitution doesnot extend the constitutional property guarantee to intangible property …”

Discrete Expropriation S. 90-95

„… . CompensationThe precise standard of compensation under customary international law for thetaking of the property …” „… – as the question of the standard for payment of compensation when foreign property is expropriated …” „… limitation on a State’s power to expropriate the property of aliens.«286Therefore, this is an area of …”

Conclusion S. 85-86

„… governmental measures short of outright expropriation of the property rights of foreign investors constitute …” „… measures that a Statemay take in order to implement its policies: where property is expropriated even for …” „… the property of a Costa Rican company owned largely by U.S. nationals for the purpose of establishing …”

Introduction S. 87

„… right of States to take the property of foreign investorsis subject to the requirement that it serves a …” „… 87Chapter FourThe Legal Conditions for Taking the Property of Foreign Investors4.1 …” „… . IntroductionThis chapter examines the conditions for the taking the property of foreign investors and in exploring …”

The Scope of the NIPC Act S. 162-164

„… definition of »investment« under the NIPC Act covers:a) Property in movable, immovable property and rights …” „… derived therefrom;b) Intellectual property rights (copyrights, patents, trademarks);c) Right derived from …” „… broad-based, and it extends to any assetof economic value, whether tangible or intangible property, except …”

Deprivation of Managerial Control S. 67-69

„… caninterfere with property rights to such an extent that these rights are rendered so useless thatthey must be …” „… rights of DESONA contrary to Article 1110of NAFTA. It was found by the ICSID Tribunal that Global Waste …” „… presumed that the taking of property of a foreign investor has occurredwhere a host State ousts the …”

Environmental Regulation S. 80-85

„… with the property rights of foreign investors or todisregard its obligations under an investment treaty …” „… the property rights of foreign investors constitute taking under international law. It also considered …” „… para. 363.241 Ibid., at para. 365.81ronmental measures has been undercut by the investment rights of …”

Nigeria-U.K. BIT of 11 December, 1990 S. 325-332

„… exclusively,includes: (i) movable and immovable property as well as any other property rights such as mortgages, liens …” „… performance under contract having a financial value; (iv) intellectual property rights, technical processes …” „… exclusively:(a) movable and immovable property as well as any other rights in rem, such as mortgages,liens and …”

Scope and Structure of the Study S. 27-29

„… of property rights under international law, includingthe relevance of the African Charter on Human …” „… and Peoples’ Rights to property11 Tejuoso and Sobowale, supra note 10, at 400.28guarantee and the …” „… academic minefield by addressing the following controversial issues:1) Whether the property guarantee …”

Taxation S. 76-78

„… ofthese risks materialized does not necessarily mean that property rights affected by suchevents can be …” „… Ibid., at 170.227 G. Schuppert, »The Right to Property«, in U. Karpen (ed.), The Constitution of the …” „… Lawful Regulation The right of States to regulate their economies and provide security to their nationals …”

Compensation for Losses caused by War or Civil Disturbances S. 144-146

„… guarantees investors of either ContractingParty to the BIT the right not to be discriminated against in …” „… host State for damages to the property offoreign investors. One agrees completely with Asante’s …” „… Republic of Zaire has never claimed that the property of SINZA was never damaged.But ZINSA has been …”

Resolutions of the U.N. General Assembly S. 99-102

„… 99man Rights. The applicants’ complaint was that they were deprived of the property rights in their …” „… distinction between the right of nationals and the right of non-nationals to compensation for taking under …” „… Article 1 ofthe First Protocol to the European Convention on Human Rights as follows:»Especially as …”

Material Scope S. 111-114

„… , though not exclusively:a) movable and immovable property and any other property rights such as mortgages …” „… performance under contract having financial value;d) intellectual property rights, technical process, know-how …” „… bothtangible (corporeal) property and intangible (incorporeal) property. Like most406 Dolzer and Stevens, supra …”

Protection against Expropriation, Nationalization and Indirect Taking S. 146-148

„… authorities of the host State employ his property in dealing with anarmed conflict or civil disturbances …” „… the property of an alien. This is probably the reason why the Nigeria-Germany BIT omitted the …” „… destruction of property did not occur during hostilities, but more precisely bythe governmental forces or …”

Non-discrimination S. 89-90

„… thereunder [...] . Further,the taking by the Respondent, of the property, rights and the interests of the …” „… taking of his property by the host State is arbitrary and unrelated to the economic or social policiesof …” „… , Lagergren, found unlawful Libya’s nationalization of the property of British Exploration Company in Libya as …”

Defence of Rule of Law S. 189-191

„… Nigerian courts to enforce the fundamental human rights enshrined in the1999 Constitution and to guarantee …” „… his application, Ojukwu deposed to the fact that the property at issueinherited by him originally …” „… rejected the applicationon the ground that Ojukwu abandoned the property when he left Nigeria on exileafter …”

Attributability S. 71-76

„… materialized does not necessarily mean that property rights affected by suchevents can be deemed to have been …” „… the claimant.193 3.4. AttributabilityOnce the interference with the property of a foreign investor has …” „… government is not responsible for damages that an insurrectional movement inflictson the property of a …”

Forced Sale and Involuntary Transaction S. 69-71

„… precipitated the loss of the company’s right to manage and controlits orderly liquidation. Thus, Italy …” „… creditors; the stakeholders no longer had the right ofcontrol and management protected under the FCN Treaty …” „… orderly liquidation under its own management, andmay indeed have forfeited any right to do so under …”

Introduction S. 200-201

„… maximizeshareholder value and demand respect for their contractual and property rights, ahost State tries to police …” „… legacy of State ownership of property.741 Pursuant to thefirst statute on mineral oil in Nigeria, the …” „… this Section, the entire property in the andcontrol of all minerals and natural gas in, under or upon …”

The Effect of Bilateral Investment Treaties S. 102-103

„… abstract theoretical discussion. Moreover, the Charter of theEconomic Rights and Duties of States, even in …” „… compensation for taking the property of the affected foreigners.360 The acceptance of a lump-sum settlement by …” „… compensation« made up of cash and other arrangements granted to foreigners deprived of their property.362 …”

Autonomy of the Will versus Permanent Sovereignty over Natural Resources S. 205-211

„… terms:»Most publicists today uphold the sovereign rights of a State to nationalize foreign property, in the …” „… power:a) to hold, manage and alienate movable and immovable property;b) to purchase and otherwise acquire …” „… or take over all or any of the assets, businesses, properties, privileges, contracts, rights …”

State Ownership of Petroleum S. 201-204

„… legacy of State ownership of property.741 Pursuant to thefirst statute on mineral oil in Nigeria, the …” „… this Section, the entire property in the andcontrol of all minerals and natural gas in, under or upon …” „… presently in force in the country confirm thatpetroleum is the exclusive property of the FGN. The Petroleum …”

The Preamble of Bilateral Investment Treaties S. 110-111

„… themselves. In addition, the right of each Contracting Partyto create the legal framework for foreign …” „… bothtangible (corporeal) property and intangible (incorporeal) property. Like most406 Dolzer and Stevens, supra …”

Nigeria-Germany BIT of 28 March, 2000 S. 332-340

„… exclusively:(a) movable and immovable property as well as any other rights in rem, such as mortgages,liens and …” „… and financial value;(d) rights arising out of a leasing agreement;333(e) intellectual property rights …” „… into Special Drawing Rights shall apply.ARTICLE 7 SUBROGATIONIf either Contracting Party makes a …”

Introduction S. 182-183

„… administration of justice in the country. Issues such as the right of access to court, the right of a foreign …” „… corporation to suein Nigeria, the right to make claims in foreign currencies, the constitutionality …” „… Justice: Essays in Honour of Justice EzeOzobu, Enugu, 1996, 195-211.1837.2. Right of Access to …”

Guarantees against Expropriation and Nationalization S. 173-174

„… where the political risks affecting their property and contractual rights are high, the NIPC Act, to a …” „… ) Guarantee against currency riskc) Right to due process of lawd) Delocalized dispute settlement mechanismThe …” „… law which makes provision for: a) payment of fair and adequate compensation; and b) a right of access …”

Conclusion S. 198-199

„… quasi-judicial bodies when they challenge interferences withtheir property and contractual rights. The other …” „… of Estonia’s Credit InstitutionsAct did not guarantee EIB the right to be heard before its banking …”

Post-Independence (1960-1971) S. 157-158

„… . Sodipo & B. Fagbemi (eds.), Nigeria’s Foreign Investment Laws and Intellectual Property Rights, London …” „… TheImmigration Act, which is still in force in Nigeria, subjects the rights of aliens toemployment in the private …” „… sector and their right to practice any profession or toestablish or to take over any limited liability …”

Recognition of ICSID Awards for Enforcement S. 251-252

„… Intellectual Property Rights, London, 1994, 70.945 See for instance S. 1(2) of the Arbitration International …” „… ICSID Convention does not prejudice the right of its Contracting States toapply their national laws …” „… right of sovereign immunity relating to the appearance of the relevant Contracting State before the …”

Conclusion S. 242-243

„… property,which the above decision supports, forms the corpus of the international minimum standard under …” „… establish the right of foreign investors, whose investments in Nigeria have been approved by the NIPC to …” „… . Theessential conditions on this right include two important issues. First, there mustbe a good faith effort on …”

Introduction S. 107-108

„… the treaties contained various property rights’ provisions, which indirectly protected investments of …” „… Rights, 2000, 816. 374 J. Siqueiros, »Bilateral Treaties on the Reciprocal Protection of Foreign …”

Exceptions and Limitations to the MFN and NT Standards S. 143-144

„… , and for the purpose of the treaties under review, Nigeria. The exercise of this right must be fair and …” „… clause is a residuary provision that guarantees investors of either ContractingParty to the BIT the right …” „… international responsibility to a host State for damages to the property offoreign investors. One agrees …”

Expropriation and Nationalization S. 174-175

„… compensation; and b) a right of access to the courts for the determination of the investor’s interest or right …” „… chapter three of this work.175amount to a taking of property, if the circumstances of the breach suggest …”

Material Jurisdiction S. 241-242

„… existence or scope of a legal right or obligation, or the nature or extent of the reparation to be made for …” „… relating to the rights and obligationsof the disputants. It has been stated elsewhere in this work that the …” „… their property,which the above decision supports, forms the corpus of the international minimum standard …”

Methodology S. 25

„… ) 40 ICLQ 323-4.7 T. Allen, The Right to Property in Commonwealth Constitutions, Cambridge, 2000, 2-3. …”

Currency Transfer S. 178-180

„… 178pensation presupposes full compensation assessed by the actual market value ofthe property in …” „… spells out the right of a foreign investor to currency transfer, Section15(4) pertains to the right of …” „… currency imported into the country.Therefore, the right of currency transfer under Nigerian law extends …”

Competent Authority S. 204-205

„… and alienate movable and immovable property;b) to purchase and otherwise acquire or take over all or …” „… any of the assets, businesses, properties, privileges, contracts, rights, obligations and liabilities …”

The Emergence and Growth of Investment Treaties S. 108-110

„… facilitate internationaltrade and navigation, but the treaties contained various property rights’ provisions …” „… themselves. In addition, the right of each Contracting Partyto create the legal framework for foreign …”

Most-favoured-nation Treatment S. 134-138

„… Contracting Party for expropriating his property. The factthat the State did not pay compensation to similarly …” „… direct infringement of rights of shareholders of a company and pecuniary losses that shareholders will …” „… confercertain rights on shareholders of a company that are distinct from the rights of thecompany itself such as …”

Administrative Justice S. 194-198

„… may affect the civil rights and obligations of any person if such law –a) provides for an opportunity …” „… for the person whose rights and obligations may be affectedto make representation to the administering …” „… must be satisfied when a quasi-judicial body determines the proprietary rights of any person. The …”

The Relevance of Source of Investment S. 165-166

„… Property Rights, 1994, London, 49-50.622 Tradex, supra note 204.623 Ibid., paras. 109 & 110 (emphasis added …”

Conclusion S. 255-256

„… of governmental functions protected by the U.S.FSIA as sovereign property.960 The Court also …” „… the ICSIDConvention preserves the right of its Contracting States to apply the provisionsof their …”

Can Abdication of Jurisdiction Constitute Manifest Excess Power? S. 250-251

„… and B. Fagbemi (eds.), Nigeria’s Foreign Investment Laws and Intellectual Property Rights, London …”

Business Permits, Expatriate Quotas, Resident Permits and other Services S. 170-173

„… countries where the political risks affecting their property and contractual rights are high, the NIPC Act …” „… ) Guarantee against currency riskc) Right to due process of lawd) Delocalized dispute settlement mechanismThe …”

The Period from 1972 to 1978 S. 158-160

„… Intellectual Property Rights, London, 1994, 30.159clusively reserved for Nigerians. The business activities …”

Taking and Compensation S. 286-288

„… 286right to give domestic assistance should then be checked through the policy review mechanism of …” „… See p. 95 above for the opinion of Professor Schachter on compensation for the taking ofthe property …”

Appellate Review S. 288-290

„… See p. 95 above for the opinion of Professor Schachter on compensation for the taking ofthe property …” „… Act guarantee foreign investors the right to institute international arbitration for the settlement of …”

Enforcement of Monetary Orders of Court against the Government S. 192-194

„… government fromthe execution of court orders was provided for in the petition of rights laws in Nigeria …” „… the power to consent to the attachment of government property in satisfaction of private debts. One …”

Performance Requirements S. 281-284

„… socialprogress […] a Member has the right to take any appropriate safeguards necessary to ensure that foreign …” „… violation of competition laws, orconcerns the transfer of intellectual property and is undertaken in a …”

General Standard – Fair and Equitable Treatment and Full Protection and Constant Security S. 122-134

„… phrase»fair and equitable treatment« from the phrase »full protection and security«, andopined that:»The right …” „… to fair and equitable treatment goes more further than the right to the most-favoured-nation and to …” „… the same law, which granted a right of refund for all the VAT paid in local acquisitions or the …”

doi.org/10.5771/9783845202907

Marc Bungenberg, Jörn Griebel, Stephan Hobe, August Reinisch - International Investment Law

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Marc Bungenberg (ed.), Jörn Griebel (ed.), Stephan Hobe (ed.), August Reinisch (ed.)

International Investment Law

Series: Kooperationswerke Beck - Hart – Nomos

Volume 2015

Results in this title

Henning Grosse Ruse-Khan VI. Investment Law and Intellectual Property Rights S. 1692-1713

„… VI. Investment Law and Intellectual Property Rights Henning Grosse Ruse-Khan A. Introduction …” „… Global Standards for the Protection of Intellectual Property Rights?, GRAIN Study, August 2004; Henning …” „… völkerrechtliche Investitionsschutzverträge (Carl Heymanns, 2011); Lahra Liberti, ‘Intellectual Property Rights in …”

Giorgio Sacerdoti, Matilde Recanati XIII. Approaches to Investment Protection outside of Specific International Investment Agreements and Investor-State Settlement S. 1839-1862

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 1. The Dispute between Italy and Switzerland (1990–1992): the Right to acquire Property under the …” „… The Dispute between Italy and Switzerland (1990–1992): the Right to acquire Property under the 1868 …” „… protect property once acquired, but includes a right to market access and the making of investments …”

Burkhard Schöbener IV. Outlook on the Developments in Public International Law and the Law Relating to Aliens S. 64-79

„… ), but also by customary international law and by the human rights-based protection of property. Against …” „… IIAs, the human rights-based protection of property and the international minimum standard found in …” „… international minimum standard and the human rights-based protection of property, however, are becoming more …”

Ursula Kriebaum VIII. Expropriation S. 959-1030

„… Property of Aliens – Measures Affecting Acquired Rights’ (1959) 2 YBILC 1–37; Green H. Hackworth, Digest of …” „… Kriebaum, ‘The Concept of Property in Human Rights Law and International Investment Law’ in Stephan …” „… scope of property rights as such, are governed by the law of the State in which the claimant alleges to …”

Chester Brown I. The Evolution of the Regime of International Investment Agreements: History, Economics and Politics S. 153-185

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 2. International Convention for the Mutual Protection of Private Property Rights in Foreign …” „… These general economic treaties typically focussed on ‘the protection of property rights and the …” „… Protection of Private Property Rights in Foreign Countries (1957) Introduction Hermann Abs had first broached …”

Stephan Hobe I. The Development of the Law of Aliens and the Emergence of General Principles of Protection under Public International Law Stephan HobeThe Development of the Law of Aliens S. 6-22

„… compensation’ for the taking of property rights. Very important were the judgements of the PCIJ. In the famous …” „… law that respect basic property right of individuals as well as of foreigners. Therefore one can say …” „… The Iran–US Claims Tribunal held that measures taken by a state can interfere with property rights to …”

Irmgard Marboe III. Valuation in Cases of Expropriation S. 1057-1081

„… Under international law, a State has the right to expropriate private property due to its territorial …” „… Rights (ICESCR) do not contain a human right to property. Only regional instruments, such as the European …” „… , Protection of Property Rights within the European Convention on Human Rights (Ashgate, 2004); Angela Collier …”

Jan Asmus Bischoff, Richard Happ A. The Notion of Investment S. 495-544

„… ) Intellectual Property Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146 7 …” „… ) 51 BYIL 123–161; Rachel A. Lavery, ‘Coverage of Intellectual Property Rights in International …” „… Free Trade Agreements’ (2009) 6 TDM 1–49; Lahra Liberti, ‘Intellectual Property Rights in International …”

John P. Gaffney, Zeynep Akçay A. European Bilateral Approaches S. 186-201

„… ) Copyrights and Industrial Property Rights . . . . . . . . . . . . . . 23 (b) Fair and Equitable Treatment …” „… , traditional property rights, rights in companies, monetary claims, copyrights, industrial property rights, etc …” „… Property Rights French and German BITs cover copyrights, industrial property rights, technical processes …”

Sabine Konrad C. Protection for Non-Profit Organisations S. 555-565

„… protection type rights (Article 7),29 protection of Church property, including against expropriation …” „… on Fundamental Rights, ‘Opinion No. 4-2005: The Right to Conscientious Objection and the Conclusion …” „… Political Rights (NP Engel Verlag, 2005); Christoph Schreuer, Loretta Malintoppi, August Reinisch and …”

Index S. 1913-1952

„… Mutual Protection of Private Property Rights in Foreign Countries Chapter 4 I 17 – dispute settlement …” „… Foreign Property Chapter 4 II B 14 1974 Charter of Economic Rights and Duties of States Chapter 4 II B 8 …” „… invest Chapter 7 II 10; Chapter 13 II 8 Index 1924 – right to property Chapter 13 II 8 – transfer of …”

Irmgard Marboe I. The System of Reparation and Questions of Terminology S. 1031-1044

„… international law, it is generally recognised that a State has the right to expropriate private property in the …” „… , where the right to property is regarded as a human right (see Art. 1, Protocol No 1 to the Convention …” „… law that every invasion of a private right imports an injury and that for every such injury the law …”

Pierre-Marie Dupuy, Jorge E. Viñuales VIII. Human Rights and Investment Disciplines: Integration in Progress S. 1739-1767

„… human rights reasoning in the assessment of a taking of property by a host State8 or of management of a …” „… basic human rights, including the right to property, the right to a fair trial and many others would …” „… including, under some conditions, private property rights. Yet, due diligence also plays a role in …”

Kaj Hobér, Joshua Fellenbaum I. Political Risk Insurance and Investment Treaty Protection S. 1517-1551

„… well as the situation where the State can be said to have expropriated contractual rights by …” „… laws, taxation, labour regulations, intellectual property and anti-trust legislation; it also includes …” „… , inter alia, shares or ownership interests in a corporation established in the host country, rights …”

Rainer Hofmann III. The Protection of Individuals under Public International Law S. 46-63

„… holders of human rights, such as the right to a fair trial or the right to property, but also as bearers …” „… such procedural rights, also for substantive rights such as, in particular, the right to property …” „… . Insofar it is important to note that the right to property48 is only protected on the regional level, i.e …”

Stephan Wittich II. State Responsibility S. 23-45

„… very idea of being a subject of the law as a holder of rights and obligations. This common …” „… of a wrongful act. The latter comprise new legal relationships (rights and obligations) between the …” „… home State of the individual in enforcing its international rights against the host State. At the same …”

Stephan Wittich V. Investment Arbitration: Remedies S. 1391-1430

„… with a view to the construction of the wall.114 In cases relating to the right of property the …” „… means of enforcing a right or of preventing or redressing a wrong. This also means that judicial …” „… remedies are the judicial relief which a legal system provides for the enforcement of substantive rights …”

Michael Hahn I. WTO Rules and Obligations Related to Investment S. 653-670

„… resulted in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)) but also put …” „… Property The importance of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS …” „… protection of intellectual property rights (IPRs). In sum, there is little doubt, that a host country’s …”

Titelei/Inhaltsverzeichnis

„… .......................................................V. 1677 Arno Gildemeister Investment Law and Intellectual Property Rights …” „… Measures TRIPS Agreement on Trade-Related Aspects of Intellectual Property Rights U. Miami Int.-Am. L. Rev …” „… is subject to copyright. All rights are reserved, whether the whole or part of the material is …”

August Reinisch V. National Treatment S. 846-869

„… property rights and to fiscal treatment. It may have been this experience which made attempts to codify …” „… Agreement on Trade-Related Aspects of Intellectual Property Rights (1994), Marrakesh Agreement Establishing …” „… Human Rights and Investment Law’ in Stephan Schill (ed), International Investment Law and Comparative …”

Joachim Karl F. The Negotiations on the OECD Multilateral Agreement on Investment S. 342-360

„… each contracting party had the right to designate sectors, industries or economic activities, in regard …” „… Membership of Self-Regulatory Bodies Intellectual Property Public Debt Corporate Practices Technology R&D Not …” „… , Schools 348 Joachim Karl 17 and the right to speak in the MAI Negotiating Group and the various working …”

Andreas R. Ziegler X. Investment Law in Conflict with WTO Law? S. 1784-1801

„… International Property Rights (TRIPS) Agreement. This practice exists also in other IIAs and RTAs.41 Certain …” „… Intellectual Property Rights.’ See on this issue in detail Christopher Gibson, ‘A Look at the Compulsory …” „… intellectual property rights according to the TRIPs can easily be construed as treatment that is not fair and …”

Andrew Newcombe B. The Americas S. 202-220

„… included the promotion of FDI and the enforcement of property rights. Countries that were previously …” „… . Ironically, it could be argued that China’s current BITs provide greater property rights protections than …” „… Charter of Economic Rights and Duties of States.15 A key objective of the US BIT programme was the ‘legal …”

Stefan Kroll VII. Enforcement of Awards S. 1482-1504

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 4. Attachment of Property of State-Owned Companies . . . . . . . . . . . . . . . . 68 G …” „… . 27(1) of the ICSID Convention such a right to diplomatic protection, excluded during the arbitration …” „… in relation to rights granted by them are considered to be ‘commercial disputes’ in the sense of the …”

Ralph Alexander Lorz II. Protection and Security (Including the NAFTA Approach) S. 764-789

„… duty to physically protect the personal integrity as well as the property of aliens within its …” „… customary international law usually concern the physical impairment of rights of foreign nationals and the …” „… standard, and do[es] not create additional substantive rights’. A formulation like this one, which is …”

Irmgard Marboe V. Valuation in Cases of Breach of Contract S. 1103-1114

„… produce reciprocal rights and obligations between the contracting parties and have the force of law in …” „… Between States and Foreign Nationals’ in The Southwestern Legal Foundation (ed), Rights and Duties of …” „… , 1099. The arbitrator rejected the argument of the respondent State that it had a sovereign right to …”

André von Walter I. Investor-State Contracts in the Context of International Investment Law S. 80-92

„… ) Rev. Arb. 3–43; Alfred Verdross, ‘Protection of Private Property under Quasi-International Agreements …” „… whether it was possible for a State, through a special contractual commitment, to renounce its right to …” „… protection for contractual rights also remains subject to debate. 1 For examples of early State contracts …”

Marc Jacob, Stephan W. Schill I. Fair and Equitable Treatment: Content, Practice, Method S. 700-763

„… the OECD Draft Convention on the Protection of Foreign Property (1968) 7 ILM 117. See Stephen …” „… , more attention has been paid to what the claimants have considered the scope of their rights than what …” „… interpretations and try to rebalance more clearly investor rights and public interests, thus adding further …”

August Reinisch II. The Interpretation of International Investment Agreements S. 372-410

„… regulatory activity that may significantly interfere with an investor’s property rights. The Tribunal deems …” „… ) 719–735; Bruno Simma and Theodore Kill, ‘Harmonizing Investment Protection and International Human Rights …” „… and that the ‘ordinary meaning’ of the term ‘treatment’ included the rights and privileges granted by …”

Christina Knahr F. The Territorial Nexus between an Investment and the Host State S. 590-597

„… difficult in others. In cases of immovable property it will be hardly controversial to determine where the …” „… Agreement, such as the acquisition of interests in immovable property, companies and the like, a transfer of …” „… SGS the right to carry out pre-shipment inspection services, gave rise to ‘claims to money;’ secondly …”

Richard Happ A. The Energy Charter Treaty S. 240-260

„… any property rights such as leases, mortgages, liens, and pledges; (b) a company or business …” „… Property; (e) Returns; (f) any right conferred by law or contract or by virtue of any licences and permits …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 (1) Requirements to Exercise the Right . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 (2 …”

Jörn Griebel D. The New EU Investment Policy Approach S. 304-325

„… their investments, intellectual property rights included, whether the investment is made before or after …” „… intellectual property rights are included in the scope of the investment agreement (…) the provisions should …” „… . As intellectual property rights are usually protected within investment agreements, it will be …”

Andrea K. Bjorklund B. NAFTA’s Contributions to Investor-State Dispute Settlement S. 261-282

„… outcome-determinative. Though NAFTA undisputedly gives the Commission the right to issue binding notes of interpretation …” „… argument that investors’ rights, on which they might have relied in making an investment, would be …” „… curtailed. Yet to the extent investors were accorded individual rights they were always subject to the …”

Ulrich Klemm III. Financing of Foreign Direct Investment by Development Finance InstitutionsThis contribution is current as of July 2012. S. 1569-1584

„… contracts, to acquire and dispose of property and to institute legal proceedings. These attributions of …” „… , because they give them the right to institute legal proceedings against non-performing borrowers under …” „… multilateral DFIs21 provide the principle that actions may be brought against them. However, the property and …”

Marc Bungenberg, Stephan Hobe II. The Relationship of International Investment Law and European Union Law S. 1602-1628

„… of Property’ in Dirk Ehlers (ed), European Fundamental Rights and Freedoms (de Gruyter, 2007) 448–465 …” „… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 1. Court of Justice of the European Union and European Court of Human Rights …” „… – are subject to a system of multilevel protection, comprising the European Convention on Human Rights …”

Michael Waibel II. Investment Arbitration: Jurisdiction and Admissibility S. 1212-1287

„… contours of property rights are found in the domestic law creating the property right; the existence of a …” „… dispute settlement is also found in other areas of international law, most notably in human rights law. In …” „… the European system of human rights protection, the commitment to dispute settlement is embedded in a …”

Marc Bungenberg, Jörn Griebel, Stephan Hobe, August Reinisch Chapter 1: General Introduction to International Investment Law S. 1-5

„… law principles governing the status and rights of foreigners and their property, are addressed and …” „… private investors extensive subjective rights and direct access to international dispute resolution. This …” „… Hobe/August Reinisch 1 1 2 3 4 obligations as subjective rights by individual ‘market participants’ stands out …”

Joachim Steffens II. Excursus: German Political Risk Insurance S. 1552-1568

„… property rights, including indemnification commensurate with the value of damaged or expropriated property …” „… – other rights qualifying as assets such as production sharing agreements for crude oil and natural gas …” „… for investors such as the right to fair and equitable treatment, the prohibition of arbitrary and …”

Katharina Diel-Gligor, Rudolf Hennecke D. Investment in Accordance with the Law S. 566-576

„… investors of the other Contracting Party. Subject to its right to exercise powers conferred by its laws or …” „… clause, the host State reserves the right to engage in an active and selective screening process in each …” „… with respect to “investment” relate not only to the physical property (…), but also to the business …”

Stephan W. Schill XII. Multilateralization: An Ordering Paradigm for International Investment Law S. 1817-1838

„… Convention on the Protection of Foreign Property28 had, although it never resulted in a binding instrument, a …” „… ) 170. 28 Draft Convention on the Protection of Foreign Property and Resolution of the Council of the …” „… , para. 77; cf. also Rights of Nationals of the United States of America in Morocco (France v. United …”

Anthony Sinclair VII. Umbrella Clause S. 887-958

„… Anthony Sinclair 889 4 5 6 Umbrella clauses are also distinct from so-called ‘preservation of rights …” „… the rights and obligations found in separate legal instruments, but does not create any enforceable …” „… enforceable treaty right to the observance of the obligations in State contracts. B. Overview of Arbitral …”

Morris Besch II. Typical Questions Arising within Negotiations S. 93-152

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138 (1) General Negotiation Obligations of the Parties. . . . . . . . . . . . . . 139 (2) Right to …” „… right of intervention of the host State in the investment project and the associated risk of abuse …” „… commitments’ (1996) 31 Tex. Int’l L. J. 215–268, 216; Andrea Shemberg, ‘Stabilization Clauses and Human Rights …”

Borzu Sabahi, Kabir Duggal, Nicholas Birch VI. Limits on Compensation for Internationally Wrongful Acts S. 1115-1129

„… its business without having been affected by that act. With respect to the value of contractual rights …” „… ) paras. 196–199 (where the tribunal noted that the right to extension of a licence is ‘conditional and …” „… claimant’s property, it had to take into account the terms of the claimant’s contract which provided that, in …”

Sabine Konrad B. Protection of Investments Owned by States S. 545-554

„… Chorzów Factory case, related to the expropriation of property of a Statecontrolled company nearly 100 …” „… European Convention on Human Rights see European Court of Human Rights, The Holy Monasteries v. Greece …” „… article on treatment. US BITs are unique in this respect and restrict the host State’s right to make …”

James Crawford, Simon Olleson III. The Application of the Rules of State Responsibility S. 411-441

„… Treasury’ when exercising the State’s rights of property or ownership: see the summary of the expert …” „… circumstances in which the right to invoke responsibility may be lost (ARSIWA, Art. 45). 5 See e.g. ECT Part III …” „… directly endowed with rights under international law,7 and even more exceptional for them to have standing …”

Yun-I Kim I. Investment Law and the Individual S. 1585-1601

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 B. Individual Rights in the Course of Development of International Law 5 1. General Outline of …” „… Law and General International Law (Nomos, 2011) 161–199; Ole Spiermann, ‘Individual Rights, State …” „… public international law. As one of its key elements, investors’ rights can be en- Yun-I Kim 1585 1 …”

Patrick Dumberry VII. Moral Damages S. 1130-1141

„… . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22 Literature: Conway Blake, ‘Moral Damages in Investment Arbitration: a Role for Human Rights …” „… Commission (UNCC), the Ethiopian–Eritrea Claims Commission, as well as different human rights bodies and …” „… procedure.’23 The tribunal acknowledged that BITs’ ‘primarily aim’ at ‘protecting property and economic …”

Irmgard Marboe IV. Valuation in Cases of Breaches of International Law Unrelated to Expropriation S. 1082-1102

„… right to a rebate of taxes applied to exported cigarettes.14 The tribunal referred to the awards in S. D …” „… of the treaty standard had, in fact, led to the total destruction of the property. The view that …” „… the unlawful act.80 The tribunal in El Paso v. Argentina also emphasised that the property has to be …”

Arno Gildemeister V. Investment Law and Taxation S. 1677-1691

„… Consequently, claims based on rights and obligations arising under general rules of domestic law, such as tax …” „… rights and obligations that are applicable to legal or natural persons who are within the reach of a host …” „… State’s jurisdiction, as a matter of general law; and rights and obligations that are applicable to an …”

Gabriel Bottini, Veronica Lavista, Mariana Lozza E. MERCOSUR and CAFTA S. 326-341

„… , for instance through the reference to Chapter Fifteen (Intellectual Property Rights) in Art. 10.7.5 …” „… right to bring a treaty claim. 69 The benefits of this chapter may be denied when persons of a non-State …” „… ” and not to “investors” the importation of procedural rights would be logically impossible’. Noah …”

Ursula Kriebaum III. Arbitrary/Unreasonable or Discriminatory Measures S. 790-806

„… , Ernst-Ulrich Petersmann (eds), Human Rights in International Investment Law and Arbitration (Oxford University …” „… (JurisNet, 2008) 63–100; Olivier De Schutter, International Human Rights Law (Cambridge University Press …” „… international law if it arbitrarily impairs the acquired rights of aliens, (...) All that international law …”

August Reinisch IV. The Likely Content of Future EU Investment Agreements S. 1884-1903

„… and services, and the commercial aspects of intellectual property, foreign direct investment, the …” „… state is protecting the public interest in a non-discriminatory way, the right of the state to regulate …” „… intention, expressed in the November 2013 Commission Fact sheet, to ‘reaffirm the right of the Parties to …”

Lars Markert, Helene Bubrowski B. National Setting Aside Proceedings in Investment Arbitration S. 1460-1481

„… agreement and that certain – usually constitutionally guaranteed – procedural principles, such as the right …” „… inability to present one’s case, which will often be formulated as a violation of the right to be heard …” „… . Poland, the Swiss Supreme Court noted that a party loses its right to object to a violation of the right …”

Christina Binder IV. Circumstances Precluding Wrongfulness S. 442-480

„… law, especially in older State practice, necessity was viewed as inherent in the ‘right to self …” „… the international community as a whole”, supports the conclusion that rights and interests of …” „… that any other State’s rights were seriously impaired by the measures taken by Argentina during the …”

August Reinisch IV. Most Favoured Nation Treatment S. 807-845

„… juridical persons, their personal rights and obligations, international taxation or the protection of …” „… intellectual and industrial property. C. The Functioning and Basic Concepts of MFN Clauses International …” „… give rise to the beneficiary’s rights. Rather, it is the basic treaty that forms the legal basis for an …”

doi.org/10.5771/9783845258997

Jacob M. Held - Dr. Seuss and Philosophy

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Jacob M. Held (ed.)

Dr. Seuss and Philosophy

2011

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CHAPTER THIRTEEN: Thidwick the Big-Hearted Bearer of Property Rights S. 159-166

„… something about the nature of property rights.Would You, Could You, Get off My Head?The plot follows the …” „… Big-Hearted Bearer of Property RightsAeon J. Skoble9781442203112_Print.indb 159 5/12/11 1:35 PM160 Aeon …” „… have formed a community, with an entitlement to property rights on Thidwick’s horns. Their exercise of …”

CHAPTER FIFTEEN: Whose Egg Is It, Really? Property Rights and Distributive Justice S. 179-190

„… Egg Is It, Really? Property Rights and Distributive JusticeHenry Cribbs9781442203112_Print.indb 179 …” „… rather than birdnapped, indicating that for her it’s a question of property rights, not parental rights …” „… . Taken this way, Horton Hatches the Egg raises a fundamental question of property rights: How should we …”

CHAPTER FOUR T E E N: Rebellion in Sala-ma-Sond: The Social Contract and a Turtle Named Mack S. 167-178

„… the state of nature and the creation of civil society. We have a natural right to our property and …” „… , but it is a contract designed for the protection of private property, and thus our natural rights …” „… the contractors’ lives, liberty, and property, the contractors have a right—perhaps even an …”

Notes S. 231-248

„… , “Whose Egg Is It, Really? Property Rights and Distributive Justice” in the present volume. 9. Locke …” „… Thidwick and property rights, especially the right over one’s own body, see Aeon J. Skoble, “Thidwick the …” „… Big-Hearted Bearer of Property Rights,” in the present volume.13. Locke, Second Treatise of Government, 751.14 …”

Preface

„… Thidwick the Big-Hearted Bearer of Property Rights 159Aeon J. SkobleChapter 14 Rebellion in Sala-ma-Sond …” „… rights reserved. No part of this book may be reproduced in any form or by any electronic or mechanical …” „… : The Social Contract and a Turtle Named Mack 167Ron NovyChapter 15 Whose Egg Is It, Really? Property …”

CHAPTER SIX T E E NL It’s Not Personal . . . It’s Just Bizzyneuss: Business Ethics, the Company, and Its Stakeholders S. 191-206

„… property right. If I own something, I am free to use it as I wish, provided my use doesn’t in-terfere with …” „… balanced. Property rights are one important consideration but don’t necessarily trump the variety of other …” „… exploited because one class uses its property rights to profit from the labor of another class that has no …”

CHAPTER SIX: McElligot’s Pool: Epistemology (with Fish!) S. 65-78

„… right actions (in this case, treating the actual cause of the migraine) increases as mere belief is …” „… right man, you also must have the evidence.39781442203112_Print.indb 66 5/12/11 1:35 PMMcElligot’s …” „… books,Connected to one of those underground brooks!An underground river that starts here and flowsRight under the …”

CHAPTER THREE: Gertrude McFuzz Should’ve Read Marx, or Sneetches of the World Unite S. 29-40

„… capital-ism. Why? Short answer: He was morally opposed to the capitalist way of distributing property since it …” „… 1:35 PM30 Jacob M. HeldCapitalism is an economic system. It’s a way to distribute property. As a …” „… when they decide to be capitalists?First, capitalism is a way of distributing property, specifically …”

Index S. 249-256

„… , 107–8, 110–11, 126–27, 129–31, 141, 150, 152, 154, 172, 195, 201, 204, 240rights, 101, 159–65, 172–73 …” „… , 175–76, 183–85, 187–89, 192, 217, 238; natural, 162, 172; property, 159–61, 163, 170, 181–83, 188–90 …” „… truthiness, 235Umbus, 87Uncle Doctor Dake, 35, 112Universal Declaration of Human Rights, 101, 238 …”

CHAPTER EIGHT E E N: Dr. Seuss Meets Philosophical Aesthetics S. 219-230

„… , almost-translucent headpiece on her grayish-blue hair. Thick, vibrant lines take up the entire right side of the …” „… background. We are surprised by the nondescript, naked girl riding a unicorn in the lower right-hand corner …” „… well-done forgeries are artworks in their own right. Yet sometimes forgeries appear to be works of art in …”

doi.org/10.5771/9781442203129

Kristina Janusauskaite - Implementation of the EU Enforcement Directive in the Baltic Countries

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Kristina Janusauskaite

Implementation of the EU Enforcement Directive in the Baltic Countries

Series: Munich Intellectual Property Law Center - MIPLC Studies

Volume 7 2010

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Titelei/Inhaltsverzeichnis S. 2-16

„… Property Rights Nomos 1. Auflage 2010 © Nomos Verlagsgesellschaft, Baden-Baden 2010. Printed in Germany …” „… Baltic countries regarding enforcement of intellectual property rights. As it can already be seen from …” „… areas” under the national legislation 122 (1) Non-property rights, firm names, commercial …”

Application of corrective and alternative measures S. 205-210

„… on industrial property rights, embody provisions regarding corrective measures862, as set out in …” „… Intellectual Property Rights Protection: Material Remedies without Compensatory Effect, p. 69. 208 …” „… argued in Mizaras, Novelties on Regulation of Intellectual Property Rights Protection: Material Remedies …”

Legal standing in civil proceedings (locus standi) S. 142-148

„… c) IP collective rights-management bodies; and d) professional defence bodies which are regularly …” „… Directive, locus standi is similarly to define for collective rights-management bodies and professional …” „… informed611. c) Rights-management collective societies and professional defence bodies By virtue of …”

Bibliography S. 231-240

„… Property Rights Through Border Measures, Oxford, 2006, pp. 3 – 20, also 29 – 34 (cited: Blakeney …” „… ) 232 Bonadio, Enrico: Remedies and Sanctions for the Infringement of Intellectual Property Rights under …” „… Intellectual Property Rights. A Commentary on the TRIPS Agreement, Oxford University Press, Oxford, 2007 …”

Subject-matter and objectives of the research S. 21-25

„… and solutions which are related to the actual enforcement of intellectual property rights2, the …” „… of intellectual property rights by implementing, inter alia, the EU Enforcement Directive3, cannot …” „… existence of intellectual property rights during the Soviet Union occupation7 – should be distinguished as …”

Legislative (formal) implementation 108 1. Prior-to-implementation provisions on IP enforcement, duration of the implementation and the implementing provisions S. 108-118

„… provisions on civil enforcement remedies in both copyright and related rights as well as industrial property …” „… infringements of industrial property rights, especially patents or industrial designs468. As far as damage …” „… 2004 on the Enforcement of Intellectual Property Rights (hereinafter – the “National Execution …”

Interpretation of the “subject-matter” under Article 1 of the Directive S. 119-126

„… Directive, the term “intellectual property rights” also comprises industrial property rights502. However, a …” „… Directive, does not make any distinction in terms of any substantive intellectual property rights, be they …” „… could be treated as being inherent for industrial property506, but not for all IP rights, though. This …”

Before World War II (1918 – 1940): the origins of modern national IP legislation S. 31-36

„… property rights in Lithuania55 were regulated according to the 1812 Manifest of Privileges to Inventions …” „… in Heiss (Hrsg.), Zivilrechtsreform im Baltikum, p. 9. 55 The term “industrial property rights“, as …” „… property rights. On the other hand, during the last decade of the first independence of the Baltic …”

The period of substantial changes of IP rights protection (1990/1991 – 1994) S. 39-46

„… Estonian Constitution provides that “the property rights of everyone are inviolable and enjoy equal …” „… the inalienable right to their work” and that “the state shall protect intellectual property rights …” „… Constitution “property shall be inviolable” and “the rights of ownership shall be protected by law”. Art. 42 …”

Structure of this study S. 25-28

„… Post-Soviet legal system26, the actual enforcement system of intellectual property rights in the Baltic …” „… improvements in relation to regional intellectual property rights enforcement issues are to be viewed in terms …” „… administrative institutions competent to enforce intellectual property rights, which are closely related to …”

European Union Legislation and Preparatory Acts S. 241-242

„… Agreement on Trade Related Aspects of Intellectual Property Rights: (WTO, 1994) WIPO Copyright Treaty: as …” „… Relations and Intellectual Property Rights Protection: as of July 6, 1994, at http://tcc.export.gov …” „… Council of 29 April 2004 on the Enforcement of Intellectual Property Rights, at …”

International Treaties S. 241

„… Agreement on Trade Related Aspects of Intellectual Property Rights: (WTO, 1994) WIPO Copyright Treaty: as …” „… Relations and Intellectual Property Rights Protection: as of July 6, 1994, at http://tcc.export.gov …” „… Council of 29 April 2004 on the Enforcement of Intellectual Property Rights, at …”

Abbreviations S. 17-20

„… Association Inc. incorporated IP Intellectual Property IPR(s) intellectual property right(s) IT …” „… Property Rights UAB uždaroji akcinė bendrovė (lt.) (Private limited liability company) UCC Universal …” „… Lithuanian Neighbouring Rights Association AKKA/LAA Latvia’s Copyright Collection Society approx …”

Brief review on the adoption of the Directive S. 83-93

„… the Council on Measures and Procedures to Ensure the Enforcement of Intellectual Property Rights: COM …” „… enforcement of intellectual property rights” was actively advocated on the basis of the Commission’s Green …” „… in the EU: Overview, pp. 10-14. 354 See also WIPO, the Enforcement of Intellectual Property Rights …”

Competence and functions of the main national IP institutions S. 51-54

„… related to industrial property rights taken by the national patent offices are to be firstly resolved by …” „… functioned from 1919/1920 until 1940 by registering industrial property rights. 186 Starting with Estonia …” „… Governments in the field of copyright and neighbouring rights, namely, the national Governments and the …”

The Soviet occupation (1940 – 1990/1991): the strained existence of IP rights S. 36-39

„… typical for intellectual property regulation in the Soviet Union87. The rights of right holders were …” „… also reflected the ideology of dominant state ownership of any type of intellectual property rights …” „… property rights during the Soviet occupation96, it should be noted that even the Soviet Civil and Civil …”

Provisional measures under the national legislation in view of Article 9 of the Enforcement Directive S. 174-183

„… industrial property rights, the court may, among other, seize the goods concerning alleged infringement of …” „… , Novelties on Regulation of Intellectual Property Rights Protection: Material Remedies without Compensatory …” „… industrial property laws750. The implementing Latvian and Estonian legislation also constitutes a right to …”

Social changes in the Baltic countries in view of the accession into the European Union S. 67-69

„… intellectual property rights protection and enforcement in the Baltics, features of the rapid and at the same …” „… protection of IP rights and their effective enforcement can help to economically benefit from such property …” „… long-history of the suppressed protection of intellectual property rights during the Soviet occupation when …”

Review of the catalogue of enforcement measures, procedures and remedies under the Enforcement Directive: “grandfather” provisions and novelties S. 93-107

„… observed in Mizaras, Novelties on Regulation of Intellectual Property Rights Protection: Material Remedies …” „… of an intellectual property right, the judicial authorities may issue against the infringer an …” „… also argued in Mizaras, Novelties on Regulation of Intellectual Property Rights Protection: Material …”

Other sanctions for IP infringements in view of Article 16 of the Directive S. 213-222

„… Council on criminal measures aimed at ensuring the enforcement of intellectual property rights (presented …” „… related rights technical protection measures, and (5) infringement of industrial property rights are …” „… Supreme Court Information (2008). 901 See also WIPO, the Enforcement of Intellectual Property Rights by …”

Concluding remarks S. 118-119

„… rights” also comprises industrial property rights502. However, a certain uncertainty or, at least, a …” „… terms of any substantive intellectual property rights, be they national IP rights or IP rights deriving …” „… 118 fringements of design rights. This particularly refers to the newly amended provision on …”

General remarks S. 71-72

„… enforcement of intellectual property rights thus protects local commercial and industrial innovation, as well …” „… property-orientated research and teaching in the Baltic countries played a very modest role. It could be conditioned …” „… legislative provisions on enforcement of IP rights are further analysed …”

Adjudication of damages in IP rights infringement cases in view of Article 13 of the Directive S. 184-203

„… industrial property rights cases, were established …” „… provisions, the Latvian laws on industrial property rights embody the reimbursement of damages769 …” „… property and expenses related to infringement of rights. Thus, in order to calculate damages, a value of …”

The scope of the application of the Enforcement Directive S. 126-134

„… regarding the substantive law on intellectual property, namely, the rights on processing of personal data …” „… applicable to any infringement of intellectual property rights. Due to the suggested amendments by the …” „… the Baltic legislation on the issue, while observing civil remedies in “grey area” rights, the …”

Local research and innovation S. 74-77

„… seminars (covering all IP rights) are contained in the curriculum of the local universities, shortage of IP …” „… was additionally enacted, as reported in Mizaras, Current Key Aspects of Intellectual Property in …” „… countries can also be reflected in the means by which the companies protect their IP rights. For this …”

IP piracy in the Baltics: prevailing tendencies and impact on the national IP rights enforcement legislation S. 69-71

„… long-history of the suppressed protection of intellectual property rights during the Soviet occupation when …” „… I. General remarks As rightly referred, “the enforcement of intellectual property rights thus …” „… national IP rights enforcement legislation In view of the overall IP products piracy rate in the EU in …”

Concluding remarks S. 183-184

„… Intellectual Property Rights Protection: Material Remedies without Compensatory Effect, p. 64. 184 cient …” „… industrial property rights cases, were established …” „… an injunction to prevent any acts because of which the rights may be actually infringed or damage …”

Evidence and measures to preserve evidence in IP rights infringement cases in view of Articles 6 and 7 of the Enforcement Directive S. 150-168

„… safeguard evidence, if a person substantiates that the copyright and related rights, or industrial property …” „… of industrial property rights cases reported, it can be presumed that in those cases, when requests …” „… 150 D. Preserving evidence in IP infringement cases and right of information under the national …”

Concluding remarks S. 211-213

„… ). 889 See in Mizaras, Novelties on Regulation of Intellectual Property Rights Protection: Material …” „… intellectual property rights (presented by the Commission): COM (2006) 168 final, April 26, 2006 (hereinafter …” „… activities and to prevent against further infringements of IP rights. It is assumed that such measure can …”

Substantial reforms in the field of enforcement of IP rights regarding the implementation of acquis communautaire S. 46-48

„… infringing certain intellectual property rights and the measures to be taken against goods found to have …” „… certain intellectual property rights and the measures to be taken against goods found to have infringed …” „… Agreement, which Section III directly embodies the provisions concerning the enforcement of IP rights148 …”

Specificity of the geopolitical situation of the Baltic countries: the general context S. 29-31

„… 29 § 3 Protection of IP rights in the Baltic countries: retrospective observations and the …” „… general context It is hardly possible to conceptualize the legal intellectual property traditions of the …” „… , consequently, the tradition of IP rights protection and enforcement of such rights schemes as well. The …”

Border measures under the EC Regulation 1383/2003 S. 222-225

„… intellectual property rights through border measures (2006), pp. 368-369, 686. 934 The number of requests …” „… , Schneider (ed.), Enforcement of intellectual property rights through border measures (2006), pp. 76, 77 …” „… reason why IP right holders did not submit requests for adjudication of pecuniary damage in criminal …”

The national judicial systems in view of IP rights enforcement S. 57-63

„… counterclaim requesting the invalidation of industrial property rights, also for cases filed by foreigners …” „… cases relating to industrial property rights in the Supreme Court of Estonia224. In Latvia, in 2007 …” „… 57 right holders must also provide very detailed and specific information to the customs …”

Factors promoting the local research and innovation S. 77-80

„… with the protection of intellectual property rights in order to tackle infringements of IP rights in …” „… rights in 2007 in Lithuania (patents, trademarks, etc.) also refers to Vilnius County, as provided in …” „… that universities are not holders, but trustees of their IP rights in Lithuania. Main part of …”

Right of information under the national legislation in view of Article 8 of the Directive S. 168-172

„… property laws which did not embody the provisions on right of information before the implementation of the …” „… , confidential information covers the attorney-client privilege as well699. II. Right of information under …” „… certain circumstances which are relevant to IP infringement cases in question. Right of information, as …”

Concluding remarks S. 107-108

„… Directive. The Directive is applicable to all IP rights, including industrial property rights, by not …” „… rights as well as industrial property legislation, which were constituted before the adoption of the …” „… addressing essence and nature of the latter rights due to their specific subjectmatter. The same applies to …”

Concluding remarks S. 48-49

„… goods suspected of infringing certain intellectual property rights and the measures to be taken against …” „… certain intellectual property rights and the measures to be taken against goods found to have infringed …” „… Copyright and Related Rights, which came into force in Lithuania on 12 October 2006, implemented the …”

IP teaching: a role of the national educational institutions and a level of the scientific research S. 72-74

„… and could be spread in a circle of further innovative activities taking the intellectual property …” „… creative innovations as well as intellectual property protection in this particular field275. As …” „… , Current Key Aspects of Intellectual Property in Lithuania (ATRIP Congress (2008)), p. 2. 274 Report of …”

Concluding remarks S. 172-174

„… 172 tween the various fundamental rights protected by the Community legal order, the principle of …” „… proportionality and protection of IP rights. Neither Article 8 and Article 9 of the Enforcement Directive nor …” „… Article 8 of the Copyright Directive provide an obligation for ISPs to report to IP right holders about …”

Publication of judicial decisions in view of Article 15 of the Directive S. 210-211

„… Property Rights Protection: Material Remedies without Compensatory Effect, p. 72. 887 As follows from …” „… publication of judicial decisions, in full or in part, on the infringements of IP rights only. Other forms …” „… the infringement of the rights can be announced in full or in part in the mass media or in any other …”

IP practitioners and their role in IP enforcement-related processes: professionalism as the key factor S. 63-65

„… property rights such as patents or designs242, do not illustrate a need to have more IP practitioners in …” „… 63 3. Common judiciary in the framework of community rights: Baltic perspective The possibility …” „… discussing the adjudication of cases regarding community rights233 as well as European patents. After some …”

Concluding remarks S. 80-82

„… virtue of the procedure set out in the national legislations, interested parties have a right to …” „… adequate and effective protection of IP rights by applying the European as well as worldwide standards of …” „… indicated in Mizaras, Current Key Aspects of Intellectual Property in Lithuania (ATRIP Congress (2008)), p …”

Lithuania S. 242-243

„… suspected of infringing certain intellectual property rights and the measures to be taken against goods …” „… found to have infringed such rights: OJ 2003, L 196/7 Directive 2001/29/EC of the European Parliament …” „… rights in the information society, OJ 2001, L 167/10 Directive 2000/31/EC of the European Parliament …”

Index S. 257-262

„… national judicial systems 8, 55 non-pecuniary damages 13, 201, 202, 203 non-property rights 123, 124 …” „… societies 7, 49, 50, 51, 192 commercial (industrial) secrets 122 common judiciary 23 community rights 8 …” „… duration of the implementation 10, 108, 113, 118 economic rights 10, 37, 41, 78, 120, 121, 138, 140 …”

Adoption of national IP legislation: some procedural aspects S. 49-51

„… rights to market economies with strong protection of IP rights and the Soviet “IP-mentality” of the …” „… the enforcement of IP rights I. Adoption of national IP legislation: some procedural aspects Under …” „… contemporary IP legislation. As far as the enforcement of IP rights were concerned, the qualitative legal …”

Legal costs as an important procedural factor in view of Article 14 of the Directive S. 203-205

„… Lithuania, both national copyright law and laws on industrial property rights, embody provisions regarding …” „… referring to civil IP litigation. Practical relevance of this aspect for civil enforcement of IP rights is …” „… unquestioned. Before starting any legal action against an infringer of IP rights, be it pre-trial measures or …”

doi.org/10.5771/9783845226934

Michael Lysander Fremuth, Jörn Griebel, Robert Heinsch - Natural Resources and International Law – Developments and Challenges

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Michael Lysander Fremuth (ed.), Jörn Griebel (ed.), Robert Heinsch (ed.)

Natural Resources and International Law – Developments and Challenges

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Irmgard Marboe Space Resources and Property Rights – Unilateral and Multilateral Approaches S. 231-256

„… Space Resources and Property Rights – Unilateral and Multilateral Approaches Irmgard Marboe …” „… , entered into force 15 September 1976, 1023 UNTS 15. Space Resources and Property Rights 233 Agreement …” „… for example von der Dunk et al., Surreal Estate: Addressing the Issue of “Immovable Property Rights on …”

Thilo Marauhn, Barry de Vries Natural Resources in Times of Occupation S. 57-74

„… property rights, in particular not title to property. The occupying power can only act as usufructuary. It …” „… usufructuary with regard to these water sources. Israel has the right to use the fruits of the property, but it …” „… does not gain the right to ownership and does not have the right to cause harm to the property. While …”

Michael Lysander Fremuth Resource Mining and Human Rights S. 145-196

„… . Resource Mining and Human Rights 153 public-private and common.35 Human rights-based property titles might …” „… . 149 The Individual Dimension: Property Rights to Resource Mining2. 153 The Relation between Human …” „… correlates to a human rights guarantee. 5 Ezirigwe, Human rights and property rights in natural resources …”

Leopold von Carlowitz Extractives for Development: Orientation and Activities of German Development Cooperation in the Mining Sector S. 93-124

„… Katz-Lavigne, Property rights and large-scale mining: overlapping claims at and around mining sites at the …” „… and to private business. For the State this includes human rights-related recommendations concerning …” „… development cooperation. He also analyses the most relevant human rights due diligence instruments relating to …”

Marc Bungenberg Natural Resources and Investment Law, in particular Investor-State Contracts S. 257-272

„… – with a lot of emphasis on sovereignty and little on property rights – as well as the need of an …” „… specific content of stabilisation clauses – not to be in contradiction to the right to regulate – has …” „… industries is based on the right of the sovereignty of nations, such as exercised by other governments …”

Titelei/Inhaltsverzeichnis S. 1-10

„… Indian State Practice 221 Bimal N. Patel 7 Space Resources and Property Rights – Unilateral and …” „… Verlagsgesellschaft mbH & Co. KG. This work is subject to copyright. All rights reserved. No part of this …” „… Trade Law 125 Hans-Georg Dederer Resource Mining and Human Rights 145 Michael Lysander Fremuth Crimes …”

Hans-Georg Dederer Resources and Trade Law S. 125-144

„… 21, services22 and intellectual property rights23. V. 1. 20 Of course, FTAs are going to play an …” „… Aspects of Intellectual Property Rights). Resources and Trade Law 131 Specifically with regard to natural …” „… that world trade law, when applied in harmony with environmental, human rights and developmental …”

Steven Freeland Crimes against the Environment? The Deliberate Destruction of the Natural Environment and Natural Resources during War S. 197-220

„… estimated by Human Rights Watch that, during the course of the 2003 invasion of Iraq, United States and …” „… Conflict (2006), p. 18. 7 See United Nations Commission on Human Rights, Report of the United Nations High …” „… Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Situation of Human Rights …”

Nico Schrijver Integrating Sustainable Management of Mineral Resources into International Mining Law S. 75-92

„… individual right to health, life, family life, property, cultural rights and the right to religion may also …” „… mining and several different branches such as international trade law, law of the sea, human rights law …” „… , including Sovereignty over Natural Resources. Balancing Rights and Duties (Cambridge, 1997), Sustainable …”

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