Umowy o korzystanie z cudzych rozwiązań technicznych w obrocie pomiędzy krajami RWPG (w świetle praktyki przedsiębiorstw polskich w latach 1981-1987)
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Date
1989
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Wydział Prawa i Administracji UAM
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Contracts for use of foreign technical works in relation between the CMEA countries (in the light of praxis of Polish enterprises in years 1981-1987)
Abstract
The article is based on empirical research conducted by the author in the
Ministry of Foreign Economic Relations. The research comprised licence agreements
(for both export and import), concluded between 1981 -1987 by Polish enterprises
with partners from the CMEA countries. Analysing the contents of the
contracts the author takes into account the stipulations of the CMEA documents
which in the form of "directives" regulate the circulation of so-called „.scientific
and technical works". Taken into account were the stipulations of Organizational,
Methodical, Economic and Legal Foundations for Scientific and Technological
Co-operation of the CMEA Member States of 1972 (in the 1986 version) and
the provisions of „model forms of licencing agreements" issued by the CMEA
Secretariat in 1975. The purpose of the analysis was to establish to what degree
the solutions recommended for application within the CMEA influence the praxis
of shaping the contents of contracts. It should be emphasized that licence relations
have not yet been regulated in the acts of the so-called „CMEA common '' law".
Besides, the author analyses the contents of particular clauses, especially those
of importation contracts, from the viewpoint of their agreement with Polish norms
regulating the transfer of technology contained in the 1986 Regulation on Principles
and Procedure of Exportation and Importation of Scientific and Technical
Achievements issued by the Minister of Foreign Trade. The author aims at establishing
to what degree Polish licencees are able to secure for themselves preferred
elements of the contents of contracts and to what degree contracts for importation
of technology from the CMEA countries are tainted with restrictive practices.
The author carries out a survey of typical licence clauses, in particular clauses
regulating the extent and character of a licence, the transfer of technical documentation,
the exchange of technological improvements, the licensor's legal and
technical protective measures and the liability for infringing them, technical assistance,
licence fees and their payments, measures to protect the secrecy of know-
-how, the clauses regulating the settling of disputes and the choice of applicable
law. Then, the author turns her attention to the areas of inadequate contractual
regulation (especially the problems of liability and the choice of applicable law).
She also discovers in importation contracts. concluded with the CMEA countries
the existence of practices restricting the economic activity of Polish licences. From among the restrictive clauses indicated in the Regulation of 1986 the author
finds the restrictions as to the right of granting sublicences, exportation restrictions
and interdictions to question the licensor's protective title. In that connection the
author deals with the character of Polish legal norms regulating the transfer of
technology and analyses the relation of these provisions to the norms of the Law
on Counteracting Monopolistic Practices. She concludes that restrictive licence
clauses may be subject to, sanctions provided for in the Law.
The last part of her article is devoted to the problem of transfer of technology
within joint ventures carried out with partners from the CMEA countries.
Legal foundations of such a form of co-operation and means of transfering the
technology within joint ventures have been discussed.
Description
Sponsor
Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
Keywords
Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 51, 1989, z. 2, s. 65-86.
Seria
ISBN
ISSN
0035-9629