Roles of Arbitration in International Intellectual Property Dispute Resolution

Abstract

This dissertation focuses on intellectual property disputes with a dual aim of proposing ways to improve time and cost efficiencies in existing dispute resolution processes, and to develop new systems. Litigation and arbitration are reviewed for their strengths and weaknesses. Arbitration has weaknesses including the mutual consent requirement, lack of appeal, absence of a system of case law, and jurisdictional variations relating to arbitrability of certain IP disputes. However, advantages of arbitration such as confidentiality, international applicability under the New York Convention, limited discovery, and use of specialized tribunals support a recommendation of arbitration as the better method. Multijurisdictional and internet disputes are highlighted. Comparative legal review and analysis is made, primarily pertaining Canada and the USA in order to clarify issues within NAFTA. Comparison of American and Canadian case law and statutes on patents, trademarks, copyrights, licensing, and trade secrets show similarities and differences between the nations. Lex loci and lex fori differences between nations like Canada and the USA make arbitration more appealing than litigation. National policies strongly favor arbitration. Despite minor differences, the Federal Arbitration Act is considered comparable to UNCITRAL Model Law implementing statutes in practice. Recognition and enforcement of foreign and domestic arbitral awards is available, and courts are most often unwilling to disturb awards rendered by tribunals. Rules of arbitration from UNCITRAL, LCIA, ICC, and WIPO are reviewed. Court cases, primarily from the USA and Canada, show interconnectedness between the FAA, Model Law, and rules of arbitration. WIPO is determined to offer the best services for IP disputes, although the degree of control over the arbitration process allows parties to tailor any proceedings to fit their particular needs. Lack of real remedies to internet piracy makes online dispute resolution a key aspect of the bright future of arbitration, which is more powerful than litigation in international disputes. Recommendations include that internet infringement disputes be referred to compulsory arbitration under a new UDRP-style system. Arbitration is recommended for the gamut of IP disputes. Parties to contracts are recommended to include clear and comprehensive provisions in contractual clauses. The continued evolution of private international trade dispute resolution is supported.