Transplanting Equitable Remedies in Contracts Governed by Civil Law?

This short article explores selected facets of legal transplants – more precisely contractual transplants – dealing with the availability of equitable remedies (as granted under common law systems) in contracts that are governed by civil law. The discussion focuses on certain clauses on equitable remedies that can be found in international intellectual property license agreements, including in the US McKesson Corp. v. Health Robotics, S.R. case relating to an international IP license agreement that provided for equitable remedies and that was however governed by Swiss law. Beyond this case, this article analyzes the legal relevance under Swiss law of contractual clauses by which the parties would acknowledge the existence of irreparable harm resulting from the breach of certain contractual provisions, specifically in case of breach of the terms of the license by the licensee or in case of breach of confidentiality obligations. The article concludes by recognizing the interest in harmonizing further IP contract law including by developing a common understanding of contractual practices that are standard in global IP transactions, such as contractual clauses relating to equitable remedies.