Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW -

law which be­comes ap­pli­ca­ble to a coun­try through ac­ces­sion to or rat­i­fi­ca­tion of an in­ter­na­tional treaty, for in­stance, au­to­mat­i­cally forms part of the laws that are na­tion­ally en­force­able with­out the need to amend na­tional leg­is­la­tion to recog­nise the ef­fects of the in­ter­na­tional treaty.

In a dual­ist sys­tem, le­gal prac­tice recog­nises that in­ter­na­tional and na­tional le­gal sys­tems are dis­tinctly sep­a­rate sys­tems and in­ter­na­tional law can only be con­sid­ered bind­ing once it has been prop­erly do­mes­ti­cated through the amend­ment of na­tional law to give proper force and ef­fect to the in­ter­na­tional law/treaty.

Ex­perts in in­ter­na­tional law will point out that such pro­vi­sions are not nec­es­sar­ily an iron-clad de­ter­min­ing fac­tor as to whether ev­ery in­ter­na­tional treaty that the rel­e­vant coun­try ac­cedes to will au­to­mat­i­cally form part of na­tional law — es­pe­cially treaties re­gard­ing in­tel­lec­tual prop­erty (IP) mat­ters. One of the core is­sues with the na­tional ap­pli­ca­bil­ity of IP treaties is that ad­di­tional di­rec­tion, pro­ce­dures and mech­a­nisms still have to be put into place on a na­tional level to en­sure that the na­tional IP of­fice knows how to deal with and process in­ter­na­tional regis­tra­tions and how to pro­ce­du­rally han­dle ob­jec­tions. Even na­tional trade­mark leg­is­la­tion is not con­sid­ered to be en­acted prop­erly un­til the en­abling reg­u­la­tions are en­acted which com-


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