Frand ADR Case Management Guidelines
54 Pages Posted: 3 Aug 2018
Date Written: July 30, 2018
The present FRAND ADR Case Management Guidelines are a product of open exchange and discussions with international institutions, practitioners and scholars. Crafted in a process that was designed to incorporate arguments and experiences from SEP holders and standard implementers, lawyers and engineers, judges, arbitrators and mediators, standard-setting organizations and public offices, the Guidelines consolidate the input of various stakeholder's representatives from the telecommunication and automotive sectors, interest groups and standardization organizations. The Guidelines aim to provide orientation for parties that are looking to utilize the benefits of ADR in an ongoing or upcoming FRAND dispute. They take the interests of patent holders and patent users as well as public policy implications into consideration. Their intention is to enable parties to agree to efficient and mutually beneficial proceedings, without influencing the material positions of either side. To assist parties in deciding on whether and under which circumstances FRAND disputes might be resolved by reference to ADR mechanisms, the Guidelines illustrate procedural options that are available at different stages of the process. Following an overview on standardization and ADR, section I of the Guidelines contains an introduction to the specific issues associated with SEP and FRAND disputes. Section II summarizes how FRAND disputes can be submitted to mediation, arbitration, expert determination or hybrid ADR procedures. Section III sets out principles for case management and offers guidance to parties and neutrals on which aspects to take into account. The Annexes summarize case law on the determination of FRAND terms and conditions and existing ADR soft law. Further, specific clauses have been developed which can be referred to by parties in order to increase transparency in FRAND determination disputes and to provide for the option of appealing an arbitral award.
Keywords: SEP, standard-essential, technology standard, FRAND, Huawei, ZTE, TCL, dominance, patent, license offer, royalty, Art. 101 TFEU, Art. 102 TFEU, third party determination, ADR, arbitration, mediation, expert determination, carve out, transparency, ordre public, soft law, guidelines
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