Presentation on theme: "Dispute Settlement Services offered by the WIPO Arbitration and Mediation Center Heike Wollgast, WIPO Arbitration and Mediation Center."— Presentation transcript:
1 Dispute Settlement Services offered by the WIPO Arbitration and Mediation Center Heike Wollgast, WIPO Arbitration and Mediation Center
2 WIPO Arbitration and Mediation Center Offices in Geneva and SingaporeInternational dispute resolution service providerSpecialized in IP and related commercial disputesNot-for-profitCommitment to time and cost effective conduct of casesProcedural guidance, training programs
3 Why Alternative Dispute Resolution (ADR) for IP Disputes? Internationalization of creation/use of IPCalls for cross-border solutionsTechnical and specialized nature of IPCalls for specific expertise of the neutralShort product and market cyclesCalls for time-efficient proceduresConfidential nature of IPCalls for private proceduresCollaborative nature of IP creation and commercializationCalls for mechanisms that preserve relations
4 Limitations of IP ADR Consensual May be difficult to agree once dispute has arisen and where there is no contractual relationship between the partiesOutcome binding between parties only (inter partes)No public precedent or direct office action4
5 ADR: Mediation, Arbitration, Expert Determination Mediation: an informal procedure in which a neutral intermediary, the mediator, assists the parties in reaching a settlement of their dispute, based on the parties’ respective interests. The mediator cannot impose a decision. The settlement agreement has the force of a contract.Arbitration: a procedure in which the parties submit their dispute to one or more chosen arbitrators, for a binding and final decision (award) based on the parties’ respective rights and obligations and enforceable as an award under arbitral law.Expert Determination: a procedure in which the parties submit a specific matter (e.g. technical question) to one or more experts who make a determination on the matter, which can be binding unless the parties have agreed otherwise.JSIntroduced in 2007To accommodate expeditious resolution of disputes between parties, concerning a specific matter of limited scope (e.g. royalty rate dispute) or clarification of certain technical or scientific issues by a neutral expertMore informal, flexible and expeditious than arbitrationDetermination binding (unless parties agree otherwise)May be combined with other WIPO proceduresMay 2010 Expert Group meeting to discuss matters for expert determination5
7 WIPO Model Clause Example: Mediation followed by Expedited Arbitration "Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language]”If, and to the extent that, any such dispute, controversy or claim has not been settled pursuant to the mediation within  days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. Alternatively, if, before the expiration of the said period of  days, either party fails to participate or to continue to participate in the mediation, the dispute, controversy or claim shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim referred to arbitration shall be decided in accordance with [specify jurisdiction] law."7
8 Routes to ADR Domestic and international ADR contract clausesSubmission Agreements, e.g. in non-contractual disputesDomestic and internationalSometimes following prior court litigation between the partiesModel clauses:
12 Active WIPO Case Management «Good offices» servicesInitiation of procedure and subsequent case communication (option of WIPO Electronic Case Facility)Mediator/arbitrator appointment processOver 1,500 specialized neutrals100 nationalitiesMediators, arbitrators, technical expertsAll areas of IP/ITNew neutrals added in function of specific case needsSetting fees, financial managementAt request, hearing/meeting logistics assistance
13 Fees and Costs – Reduction for PCT Users and Holders under the Madrid/Hague Systems
14 Settlement in WIPO-Administered Cases Settlement in WIPO-Administered Cases
15 WIPO ADR Services for Specific Sectors Disputes arising in a specific industry sector or for a specific subject matter may benefit from ADR procedures tailored to specific types of disputes and attendant needsTailoring of:Clauses / submission agreementsRulesSchedule of fees and costsSpecialized panel of mediators, arbitrators, expertsExamples:Internet domain namesResearch and development / technology transferIntellectual property offices
16 WIPO ADR Services for IPOs Administration of disputes pending before IPOsWIPO panel of neutralsFrom around the world with IP expertiseParties are also free to select mediators, arbitrators or experts from outside the WIPO PanelProcedural Guidance and TrainingAdvice on ADR clauses and submission agreementsOrganizing training and workshops Establishment of Adapted ADR FrameworksGuidance in the establishment of adapted ADR frameworks including Rules, case administration services, etc.
17 Further InformationWIPO model clauses/submission agreements:Contact information, general queries and case filing:Information on procedures, neutrals and case examples:International Survey on Dispute Resolution in Technology Transactions
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