les Nouvelles - December 2014

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  • les Nouvelles - December 2014 - Full Issue
  • PDF, 1.47 MB
  • Introduction: Legal And Practical Guidelines Worldwide
  • Sun R. Kim
    In 2009, there had been 60,530 business bankruptcy filings—a 41 percent year-over-year increase from 2008, and more than three times the number of cases filed in 2006 in the US. The number of business bankruptcies commenced worldwide since then has steadily fallen from its peak in 2009 and, while the continued struggles in Europe and Asia have caused many companies to seek insolvency relief, this downward trend in new failures has continued in most jurisdictions. For example, the challenges continue in the euro zone; 12,306 companies went bankrupt in 2013 and that such number is projected to increase in 2014 in Belgium, citing statistics published by the Ministry of Economic Affairs.
    PDF, 46.14 KB
  • Insolvency And IP License Agreements In Belgium
  • Jean-Christophe Troussel, Isabelle Dupuis and Cedric Berckmans
    Since the beginning of the economic crisis in 2008, the number of bankruptcies keeps rising by the day in Belgium and this upward trend does not seem to slow down. In 2013, 12.306 companies went bankrupt. That was an absolute record. Things do not get any easier in 2014, quite to the contrary: according to statistics published in July by the Ministry of Economic affairs, during the first six months of 2014, the number of bankrupted companies further increased by 4,9 percent compared to the same period in 2013.
    PDF, 99.49 KB
  • The Fate Of Licenses In Bankruptcy: A Canadian Perspective
  • François Painchaud and Justin Freedin
    In Canada, proceedings relating to bankruptcy are governed principally by the Bankruptcy and Insolvency Act1 (hereafter "BIA") and the Companies' Creditors Arrangement Act2 (hereafter "CCAA"). When faced with insolvency, a company may attempt to restructure by filing a proposal under the BIA, or by taking proceedings under the CCAA. Failing a successful restructure, the company can be liquidated either through assignment into bankruptcy, or through a private or court-ordered receivership.
    PDF, 70.02 KB
  • Insolvency Impact On Licensing In China
  • Christopher Shaowei and Shaojie Chi
    There is no well-established legal framework in China in regard with how to handle the executory licensing contracts in the proceeding of bankruptcy of either of the contractual parties. China does have its Bankruptcy Law though, it says little on how to fairly and properly treat an executory licensing contract to the mutual benefit of both the insolvent party and its counterparty in the licensing deal. As it is, what we are going to discuss is based primarily on our understanding on the prevailing Chinese law which may have influence upon an executory license concluded by an insolvent party.
    PDF, 59.21 KB
  • Insolvency And IP Licenses—The View From England And Wales—In The Context Of EU Laws
  • Jennifer Pierce and Roger Elford
    Insolvency most often impacts IP licences in the context of termination and assignment of rights. This is notoriously difficult to manage in the case of agreements where the governing law of the contract is different from the law governing the insolvency.
    PDF, 73.45 KB
  • Licensing In Insolvency—Finland
  • Bernt Juthström and Tomi Teinilä
    Finnish law recognizes two statutory forms of insolvency proceedings, i.e. bankruptcy (compulsory liquidation of an insolvent company in order to satisfy its creditors' claims) and company administration (restructuring/rehabilitation of an insolvent company in order to enable it to continue its operations as a going concern). A voluntary, contractual debt restructuring is also possible under Finnish law. Many of the provisions of Finnish bankruptcy and company administration laws are mandatory and protect the interests of the creditors.
    PDF, 68.31 KB
  • Intellectual Property Licensing Agreements And Insolvency: A French Viewpoint
  • Arnaud Michel and Tougane Loumeau
    In France, the legal framework for insolvency proceedings does not specifically address the issue of intellectual property rights and licenses, except as regards certain copyright agreements, namely publishing and audio visual production agreements,1 for which authors are offered some degree of protection in the event of the publisher's or producer's insolvency. It results from this, that bankruptcy rules will apply to IP licenses in exactly the same way as it applies to other contracts. After a brief overview of French bankruptcy rules (1), this article will focus on certain issues regarding the effects of such rules on intellectual property licensing agreements (2).
    PDF, 79.50 KB
  • Insolvency And IP Licenses Under German Law
  • Ralph Nack
    Under the current German insolvency law intellectual property licenses are not "insolvency proof." In case of an insolvency of the licensor licensees are at risk to lose not only their use right of the IPR but also their investments and in a worst case scenario even the foundation of their business.
    PDF, 84.81 KB
  • IP License In Insolvency—Japan
  • Naho Ebata
    IP License in Japanese Insolvency Proceedings(1) Overview In Japan, IP license is protected in the case of licensor's insolvency as explained below.(2) Termination of Executory Contract Under Bankruptcy Laws The Bankruptcy Act of Japan provides, if both the bankrupt and the counterparty under a bilateral contract have not yet completely performed their obligations by the time of commencement of bankruptcy proceedings, a bankruptcy trustee may terminate the contract or may perform the bankrupt's obligation and request the counterparty to perform his/her obligation.
    PDF, 63.40 KB
  • Management Of Intellectual Property Licenses In Insolvency Proceedings In Mexico: An Unclear Path
  • Hector E. Chagoya-Cortes
    In general, insolvency in Mexico is handled under the Federal Law on Insolvency Proceedings (FLIP) as of year 2000. Under such law, insolvency cases are managed through the so-called Commercial Tender (Mercantile Contest), which will be referred to herein after as an Insolvency Proceeding.The Mexican insolvency proceedings are complex. The entity in charge of managing insolvency proceedings is the Federal Institute of Specialists in Insolvency Proceedings (IFECOM, by the Spanish initials) under the jurisdiction of District Judges that receive the help of different experts through IFECOM.
    PDF, 67.54 KB
  • Addressing Bankruptcy Issues In IP Licensing Transactions In Taiwan
  • Dennis Huang
    Operating a high-tech business is often associated with a high degree of risk. With a series of global financial crises having led to an economic downturn, news about technology firms suffering from financial predicaments is now commonplace. When a company endures a fiscal crisis, in order to protect the interests of creditors and shareholders of the company, reorganization is often employed to rescue the company so that it can continue to operate. However, if a company is not viable, it will seek bankruptcy protection. The high-tech industry is the economic lifeblood of Taiwan, and transactions in technology licensing are regular. When it is necessary for one of the two parties to a technology licensing agreement to go into reorganization or bankruptcy, the contractual relationship could be unilaterally terminated, which may be detrimental to the interests of all parties involved.
    PDF, 65.59 KB
  • U.S. Bankruptcy Law Considerations For Licensing
  • D. Patrick O’Reilley
    Even the most formidable companies can become bankrupt or seek the protection of the bankruptcy court. Although small start-up companies are more likely to have financial difficulties, large multinational corporations, faced with apparently unlimited product liability claims or unanticipated changes in the market, have used bankruptcy to reorganize and avoid or limit liabilities. Thus, each party to a license agreement should consider the possible consequences of bankruptcy of the other party and should draft the agreement to minimize or make predictable the consequences of bankruptcy to the license agreement and the licensed rights.
    PDF, 98.29 KB
  • Patent Licensing And Cross-Border Insolvency
  • Kevin Nachtrab
    Patent licenses, like contracts, may be purely domestic, that is to say, they are limited to parties and patent rights that are all situated in the same country or they may have an international character, that is to say, they involve parties and/or patent rights that exist in more than one country. In this day and age, most patent contracts which we will find ourselves working on will be of the latter type: patent licenses that are international in scope, involving Patent Rights situated in many different countries and/or involving parties that are situated in different countries.
    PDF, 170.45 KB
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