Why Arbitration in Intellectual Property?

Intellectual property rights are as strong as the means to enforce them. In that context, arbitration, as a private and confidential procedure, is increasingly being used to resolve disputes involving intellectual property rights, especially when involving parties from different jurisdictions. Intellectual property disputes have a number of particular characteristics that may be better addressed by arbitration than by court litigation. Some of the main characteristics of intellectual property disputes and the results offered by domestic litigation and arbitration are summarized in the following table:

Common features of many IP disputesCourt litigationArbitration
International
  • Multiple proceedings under different laws, with risk of conflicting results
  • Possibility of actual or perceived home court advantage of party that litigates in its own country
  • A single proceeding under the law determined by parties
  • Arbitral procedure and nationality of arbitrator can be neutral to law, language and institutional culture of parties
Technical
  • Decision maker might not have relevant expertise
  • Parties can select arbitrator(s) with relevant expertise
Urgent
  • Procedures often drawn-out
  • Injunctive relief available in certain jurisdictions
  • Arbitrator(s) and parties can shorten the procedure
  • WIPO Arbitration may include provisional measures and does not preclude seeking court-ordered injunction
Require finality
  • Possibility of appeal
  • Limited appeal option
Confidential/trade secrets and risk to reputation
  • Public proceedings
  • Proceedings and award are confidential

Arbitration and Mediation Center

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