Intellectual Property Licenses in Cross Border Insolvency: Lessons from In Re Qimonda
Hastings Business Law Journal, Vol. 18, No. 2 (Summer Issue)
IIMA Working Paper Series No. 2021-11-05 (Version 2)
33 Pages Posted: 23 Nov 2021 Last revised: 23 May 2022
Date Written: May 18, 2022
Introduced in 2016, the Insolvency and Bankruptcy Code overhauled the Indian insolvency regime. Five years young, the work in progress Code is now in the process of adopting the Cross-Border insolvency, which was omitted from its original mandate. In 2018, a legislatively appointed committee suggested that the Code should adopt the UNCITRAL Model Law on Cross Border Insolvency. However, the Committee overlooked a crucial jurisprudential guideline, which coloured the interpretation of the Model Law, which was delivered in a cross-border insolvency dispute between American and German regimes. An American bankruptcy court subjected the German administration of American Intellectual Property assets to a protection exclusively available within the American Bankruptcy Code. This paper studies the American judicial decisions in the Samsung v. Jaffe dispute to identify and underline the importance of its directive. The study reveals that there is virtually no guidance on how an intellectual property license is treated within the Indian insolvency regime. The authors underline the importance of such guidance considering the proposed adoption of the Model Law and suggest legislative inquiry in the issue.
Keywords: Cross-Border Insolvency, In Re Qimonda, Rejection, Disclaimer, intellectual property licenses, Insolvency and Bankruptcy Code, 2016.
JEL Classification: K21, K10, K2, F23
Suggested Citation: Suggested Citation