Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

Forum Shopping: Finding the Right Balance between the Enforcement of Competition Law and the Protection of Intellectual Property Rights

Authors Itumeleng Lesofe

ISSN: 1996-2185
Affiliations: Principal Analyst, Competition Commission SA
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 450 – 477

Abstract

Much has been said and written about forum shopping of late. Some courts and scholars have even recognised and, to some extent, endorsed the practice. This phenomenon also appears to have surfaced in disputes relating to the protection of intellectual property rights (IPRs). In this regard, there appears to be a growing trend among litigants with disputes relating to patents, to use forums and institutions that are not necessarily designed to resolve such disputes. This is notable in a recent decision by the Competition Commission of South Africa to prosecute two firms accused of abusing their dominant positions by enforcing IPRs beyond their period of protection. While there may be benefits associated with the practice, pervasive forum shopping can also lead to the concentration of cases in one or very few forums which, in the eyes of litigants, are likely to make favourable determinations. Thus, forum shopping may encourage litigants to make an outcome-determinative choice when selecting an appropriate forum. This in turn can create inefficiencies. The aim of this article is to determine how best to approach the quandary of forum shopping in cases relating to the protection of IPRs. The article focuses on the interplay between intellectual property law and competition law, and determines whether the intervention by competition agencies in intellectual property matters is necessary.

The Effect of the Moratorium on Property Owners during Business Rescue

by | Oct 23, 2019 | SAMLJ, SAMLJ V29 I3

The Effect of the Moratorium on Property Owners during Business Rescue

Authors Maleka Femida Cassim

ISSN: 1996-2185
Affiliations: Associate Professor, Mercantile Law Department, University of Pretoria; Attorney and Notary Public of the High Court of South Africa.
Source: South African Mercantile Law Journal, Volume 29 Issue 3, 2017, p. 419 – 449

Abstract

A burning issue in South African company law is the encroachment of the business rescue provisions of the new Companies Act 71 of 2008 on the rights of landlords and other property owners. A landlord who has concluded a contract of lease with a company, frequently finds himself in an unenviable position if the company goes into business rescue. The company often remains in occupation of the leased premises during business rescue and, if this is done without the payment of rent, the business rescue endeavour is effectively driven at the landlord’s expense. The focus of this two-part series of articles is on the two chief predicaments facing the property owner who finds its property in the possession of a company under business rescue, namely, the recovery of the property by the property owner; and the ongoing payment of rent and other recurring charges. This article discusses the moratorium in business rescue with a specific focus on its effect on the property owner. A critical analysis of recent judicial decisions on the moratorium is included, together with a discussion of the legal position in comparable foreign jurisdictions. The second article will focus on the safeguards and protective measures for property owners during the business rescue process. It will be published in the following issue of this journal.