The first two stages of a private international law case, ie jurisdiction and choice of law, have already been examined. There is, though, a third stage, namely that of the recognition and enforcement of the judgment. It may be possible to enforce the judgment in the State in which the action was brought, but where this is not possible it is necessary to recognise and enforce the judgment in some other State in which the defendant has assets.
Intellectual property is exploited internationally in most cases. Infringement of parallel rights often takes place in more than one country at the same time and in the same way. If a single court is to deal with the infringement case, its judgment will often need to be recognised and enforced in all other countries concerned. The recognition and enforcement of interim orders can, in this respect, create particularly complicated problems. On top of these special situations, there are, obviously, those intellectual property related cases where a judgment needs to be recognised and enforced abroad in those countries where the defendant has assets, if no assets are to be found in the forum.
The national and territorial character of intellectual property rights may give rise to problems. National courts may see it as their exclusive prerogative to deal with national intellectual property rights, and especially with their validity, and they may refuse the recognition and enforcement of foreign judgments that dealt with their national rights.
The rules on recognition and enforcement of foreign judgments apply to all judgments. Judgments in relation to intellectual property are not subject to special rules. Most of the rules do not create specific problems for judgments in relation to intellectual property. However, it is fair to say that the rules on recognition and enforcement have, in the past, not been used extensively in relation to these judgments. As we discussed above, intellectual property lawyers experienced serious problems in relation to jurisdiction in relation to foreign intellectual property rights when bringing a case in the English courts. The impression was created that each intellectual property right was only dealt with in the country in which it had been created. That meant that few attempts were made to have foreign intellectual property related judgments recognised and enforced in any part of the United Kingdom. Hence the reduced importance of the rules on recognition and enforcement of foreign judgments in this context. It is submitted, though, that that importance will grow in the future. We have demonstrated, in the first two parts of this book, that many of the restrictions on jurisdiction and choice of law have been or ought to be removed.