Arbitrating International Intellectual Property Disputes: Time to Think Beyond the Issue of (Non-)Arbitrability
Jacques De Werra
University of Geneva; Harvard University - Berkman Center for Internet & Society
April 10, 2012
International Business Law Journal, 2012, Issue 3, p. 299, 2012
The numerous difficulties which can arise when litigating international intellectual property disputes before state courts have resulted in arbitration being widely established itself as an efficient dispute resolution mechanism for solving international intellectual property disputes.
The efficient use of arbitration however requires that certain specific questions have been duly identified, but experience shows that such questions are not always understood or even envisioned at the time when the use of arbitration is evoked.
On this basis, the goal of this article is to show that it is important that the parties and their counsel take time to assess in advance the implications of using arbitration effectively for solving international intellectual property disputes in a way that meets their needs and protects their interests. As shown in the paper, this requires moving beyond the threshold issue of arbitrability of intellectual property disputes (which must, of course, not be neglected, even if the scope of non-arbitrability progressively shrinks), in order to address the other relevant issues which may significantly affect the success of an arbitration in terms of cost, speed and efficiency, such as the substantive scope of the arbitration clause and the definition of the governing law.
Note: Downloadable document is in English and French.
Number of Pages in PDF File: 19
Keywords: intellectual property, alternative dispute resolution (ADR), arbitrationAccepted Paper Series
Date posted: September 21, 2012
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