Introduction
In the nuanced domain of intellectual property, laws are in place and specifically designed to discourage the intent of violating them. Intellectual properties such as copyrights, trademarks, trade secrets, and patents are methodically constructed to protect their holders. Hence, in the event of infringement, aggrieved parties have the ability to defend their intellectual assets through legal action (such as IP Arbitration), thereby discouraging any illegal use by third parties in the present or in the foreseeable future.
This, in theory, is what IP enforcement is, and it takes the visage of enforcement steps to resolve disputes, such as:
- Negotiation
- Mediation
- Arbitration
- Litigation
- Settlement
What is Arbitration?
Arbitration is described as the premier non-court dispute resolution method available. The nature of initiating these proceedings can either be:
- Ad-hoc: Where the rules and procedures are tailored and jointly agreed upon by the parties involved.
- Under Arbitral Institute Administration: In this scenario, the disputing parties opt to conduct the proceedings under the oversight of a specialized arbitral tribunal affiliated with an arbitration institute.
Its notable attributes, in comparison to other legal actions, are:
- Consent: Arbitration begins with a mutual agreement between the parties, which is often entrenched in the terms of a relevant contract. If a contractual disagreement or infringement arises, arbitration can be invoked with the parties’ consent. Unlike mediation, once arbitration begins, all relevant parties cannot unilaterally withdraw from the process.
- Election of Specialized Arbitrator: Participating parties retain the autonomy to elect the arbitrator or an arbitral tribunal of their own accord. Conversely, esteemed arbitral institutions can offer suggestions for arbitrators possessing relevant expertise.
- Objective Neutrality: Parties hold the privilege to select arbitrators who embody impartiality and neutrality. Furthermore, they have the liberty to choose pivotal factors that reduce any potential advantage possessed by the opposing party, such as the applicable law, language, and location for the arbitration hearings.
- Confidentiality: One of the fundamental principles of arbitration is privacy, which is overseen by regulatory bodies. Parties to arbitration have the ability to put together their agreement with a focus on maintaining the confidentiality and integrity of sensitive material, including valuable trade secrets. This is a significant advantage of choosing arbitration over litigation, as court decisions and case records may become public domain depending on jurisdiction, as witnessed in countries such as the US. The ability to maintain anonymity about the outcome of the dispute and the use of commercially confidential information highlight arbitration’s appeal and remain a key factor for parties opting for this method over traditional litigation avenues.
- Absolute and Enforced Rulings: The relevant parties must swiftly comply with the arbitral tribunal’s final ruling once it is issued. The “New York Convention” permits local courts to recognize and uphold international arbitration rulings in circumstances that need cross-border enforcement.
What is an Arbitral Tribunal?
An Arbitral Tribunal, also referred to as an arbitration tribunal, arbitration commission, arbitration committee, or arbitration council, is a body of adjudicators known for their neutrality and unbiased stance. Tasked with convening and facilitating the resolution of arbitration-related conflicts, this tribunal may comprise a single arbitrator or multiple members. Typically, its members are seasoned experts with legal and mediation experience.
What are Arbitral Institutes?
Arbitral institutes are esteemed entities dedicated to facilitating the resolution of arbitral disputes. They achieve this by providing structured venues governed by administrative regulations, as opposed to the ad hoc nature of other dispute resolution approaches. Along with this principal duty, they frequently provide supplementary services similar to a court registry, such as handling filings and keeping records of relevant documents.
However, in most cases, these institutes refrain from direct involvement in the arbitral proceedings once they are set in motion. The extent of their supervision varies depending on the specific institute and its policies.
Although there are hundreds of arbitral institutions in existence today, a small number of well-known ones handle the majority of arbitral matters worldwide.
These include, but are not limited to:
- International Chamber of Commerce (ICC)
- London Court of International Arbitration (LCIA)
- Permanent Court of Arbitration (PCA)
- Stockholm Chamber of Commerce Arbitration Institute (SCC)
- Swiss Chambers’ Arbitration Institution (SCAI)
- The International Centre for Dispute Resolution (ICDR), in the international branch of the American Arbitration Association (AAA)
- Singapore International Arbitration Centre (SIAC)
- Hong Kong International Arbitration Centre (HKIAC)
- China International Economic and Trade Arbitration Commission (CIETAC)
- Arbitration Center of the World Intellectual Property Organization (WIPO)
What is the New York Convention?
The New York Convention, also known as the “New York Arbitration Convention,” was established in 1958 following a diplomatic assembly held under the aegis of the United Nations. Its major goal is to develop a consistent legislative framework for recognizing arbitration agreements and implementing consistent foreign and non-domestic arbitral rulings through judicial means. As a result, parties to arbitration are required to uphold the recognition of such awards, whether they transcend national borders or are domestic in nature.