Edited by Jacques de Werra
Chapter 15: Global policies for arbitrating intellectual property disputes
In addition to the general advantages of international arbitration (such as confidentiality, expertise,2 and the wider global enforceability of awards3),4 the difficulties of litigating international intellectual property disputes before state courts contribute to explain why commercial arbitration5 has emerged as an attractive alternative for solving international intellectual property disputes.6 The disadvantages of state court litigation can also explain measures that have been taken in order to promote other softer alternative dispute resolution methods such as mediation for solving intellectual property disputes.7 The creation of specialized intellectual property courts (in particular, for patent disputes) in certain jurisdictions may paradoxically also contribute to the growth of international arbitration as a means of resolving intellectual property disputes. The reason is that even such courts have been created for the very purpose of improving the efficiency of the court-based resolution of IP disputes, their limited jurisdiction prove quite problematic.8 There is consequently a strong interest that parties to an intellectual property agreement have the power to submit their disputes to arbitration, which may (subject to certain limitations, to be discussed below) allow them to solve all aspects of their dispute before one jurisdictional body. Arbitration can meet the needs of the parties to centralize proceedings and to avoid costly parallel court proceedings in various countries, which are particularly frequent in international intellectual property disputes.9 A typical scenario in this respect is a settlement agreement following global intellectual property litigation in different countries in which an arbitration clause may be included for the purpose of solving any future dispute in a centralized manner.
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