The Use of Dispute Resolution to Resolve Intellectual Property Conflicts - A Survey of Emerging Trends and Practices

Abstract

Research and innovation are essential to address global challenges. Intellectual Property Rights are of fundamental importance to Research and Development (R&D) collaborations. Intellectual property rights are valuable business assets. The creation, protection and exploitation of IP rights continue to grow at an exponential rate globally. Such commercial or non-commercial transactions frequently involve cross-border transactions, parties from different backgrounds and different national laws. The complex nature of such transactions often results in multi-jurisdictional disputes involving parties from many different countries having different business, legal and cultural backgrounds, attitudes and expectations.‬ ‬ Such disputes are resolved efficiently by parties familiar with available alternative dispute resolution (ADR) options. Especially for parties of distinct nationalities, ADR uniquely provides parties with a single unified forum. Arbitration specifically provides a final and enforceable award binding across multiple jurisdictions. The determination of such disputes before different national courts can result in potentially conflicting and unsatisfactory outcomes, as well as high legal and other costs associated with litigating in different countries.‬ Therefore, increasingly, IP owners and users are turning to alternative dispute resolution (ADR) procedures such as arbitration and mediation to resolve their disputes. The World Intellectual Property Organization (WIPO) is at the forefront of IP ADR procedures. The main obstacle to using arbitration to resolve Intellectual Property disputes is the issue of its subject-matter ‘arbitrability’. Thinking carefully about the options available to resolve disputes may be central to the success or failure of research collaborations. In this context, Alternative Dispute Resolution (ADR) mechanisms, such as mediation, (expedited) arbitration and expert determination may be time- and cost-effective alternatives to court procedures. Thus, like any other emerging field of law, IP Dispute Resolution has a plethora of debatable questions. In this paper, I have made an endeavor to delve into these issues like whether or not the disputes over IP rights are 'arbitrable'? If so, whether the use of alternative dispute resolution methods presents the owner of the IP with any benefits? Also, whether the use of a private consensual mechanism like arbitration or mediation poses any threat to the resolution of such disputes?