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Knowledge transfer litigation and arbitration in European Union – China relationships

Thesis

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Disciplines
KeywordsTriple Keywords
Evolution
Trade
Commerce
Business
Concepts
Concept formation
Communication
Mass communication
Communication, Primitive
Erudition
Learning and scholarship
Scholarship
Judiciary
Courts
Courts--Law and legislation
Legislative enactments
Laws (Statutes)
Enactments, Legislative
Statutes
Acts, Legislative
Legislative acts

Abstract

Facing the evolution of international trade and the development of intellectual proper ty trade between companies from different backgrounds, contractual model readjustments and a reordering of dispute resolution systems seems unavoidable. The unsettled legal status of secret knowledge in China and in the EU can be an obstacle to the formalization of their transfer and therefore inhibits the definition of a suitable framework for resolving disputes. Legislators and scholars are currently debating proposals of laws and directives to elaborate this concept and its regime, but only address issues liketor t and disclosure of secret information. Legal scholarship to date has mainly been focused on the voluntary transfer of knowledge and has taken intoaccount the damage caused to secrets. To meet the needs of business operators, these operations should not be limited to "know-how communication contracts” (contrats de communication de savoir - faire). The concepts of “ intellectual good” and " intellectual ownership" theoretically justifyother types of contracts, while Chinese and European laws refer to assignment and license of trade secret . These operations, often provided for in a complexs et of contracts between parties from different cultural backgrounds, can lead to a wide variety of disputes. When disputes occur, national courts do not always provide a level of protect ion of confidential information that meets parties’ expectations. Differences in procedural cultures as well as the Chinese culture of amicable dispute settlement prevent the parties from relying on national courts. The combinations between mediation and arbitration, by their procedural flexibility, can provide a suitable dispute resolution framework taking into account economic and cultural considerations. Therefore, this thesis proposes M² arb Rules that introduce a mediator-expert with a mission of securing knowledge confidentiality during the dispute resolution process.

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