IP and Debt Finance: Cross-Border Considerations

Abstract

Innovation in both technology and finance has greatly changed the definition of national borders in the past decades. This brings vibrant commercial possibilities as well as legal challenges to the age-old loan industry. One relevant question may be: how to stimulate innovative endeavor by providing a globally well-functioning financial infrastructure. As of today, however, not only is it true that national laws rarely address security rights in intellectual property rights (“IPRs”) , but also almost no provisions are provided on the international level to determine the law applicable to these kinds of security interests . On the other hand, the tension between the protecting state (i.e. the underpinning lex loci protectionis principal of traditional IPRs jurisprudence) and the efficiency goal of secured transaction law, has become stalemated. This paper digs into this complexity by exploring more than twenty variants of proposals after five major international meetings at UNCITRAL. The introduction session is divided into two parts: historical analysis and policy-debate review. The first part of the introduction section concentrates on the summarization of each proposal, while the second part provides detailed analysis of the rationales raised to support them. A comparative private international law analysis consisting of four jurisdictions follows in the next section to assist the understanding of the current legal status quo in different countries. Finally, the conclusion reflects what is missing in previous discussions, and proposes harmonization of reforms to solve the “self-duplicating” problem embedded in the current lex loci protectionis intellectual property system.