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Title: التحكيم والدفع بالنظام العام في منازعات براءة الاختراع في التشريع الليبي: دراسة تحليلية مقارنة ال بشريعة الإسلامية والاتفاقيات الدوليةة
Authors: جميلة إبراىيم المجريسي
El Mejresi Jamila Ibrahim
Keywords: ِArbitration
Arbitration and patent
Islamic law
Issue Date: Sep-2019
Publisher: Universiti Sains Islam Malaysia
Abstract: The guidance of God to his servant is to guide them through various ways to end disputes between them such as reconciliation, judiciary, and arbitration. The latter was adopted by the Libyan legislator as one of the means to settle disputes relating to investment, where inventions represent the basis of trade and investment. Despite that, the Libyan legislator did not pay attention to pass contemporary legislation related to arbitration, like the majority of countries, especially neighboring countries such as Egypt and Tunis. But was satisfied only by the provisions of the civil procedural law dealing with internal arbitration only, as well as the case of the patent law, which is the result of many practical and legal problems in patent disputes, which is often one of its parties is a foreign investor. Among these obstacles are the limits of the court's power to adjudicate these disputes. This study aims to clarify the arbitration system, its Shariah and legal basis, evaluating the rules contained in the Libyan legislation and comparing them to those of the Islamic legal system and the international convention, and clarifying its incapability. The purpose of this study is to clarify the legal nature of the patentability of the invention and the extent to which the disputes received are subject to arbitration. It also sheds light on the extent to which domestic and international public order can be applied before the courts in patent disputes and their compatibility with Islamic law. Therefore, the researcher sought to study, analyze and evaluate the arbitration texts contained in the civil procedure law and the patent law and compare them with the international conventions related to the subject matter of the study and the Islamic Sharia law. Based on the qualitative nature of this study, the researcher adopted the analytical method, and collected information and data from many written sources and interviewed some specialists in this field. This study found that there is a clear deficiency in the Libyan legislation in the issues of arbitration and patent, and it turns out that patent disputes often need specialists because they contain a high level of advanced technology, which makes the state's judiciary inappropriate way to resolve disputes that arose before it. This study has also found that there is a deficiency in the international laws and conventions that regulate arbitration and patents in general which did not take into account the legal nature of the patent. The study also shows that the concept of internal public order is no different from the concept of international public order and that raising it before the court in the arbitration judgment in some areas of the patent varies from state to state. It was also found that all countries that apply Islamic law do not have a difference in matters of public order.
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