The WIPO arbitration and mediation centre: opportunities for international arbitration of intellectual property disputes



This article examines the role and opportunities presented by the WIPO Arbitration and Mediation Centre in the international arbitration of intellectual property (IP) disputes. As a specialized institution, the WIPO Centre offers significant advantages, including expertise, efficiency, and confidentiality, which are crucial for resolving complex IP matters.

The Centre’s innovations, such as the WIPO eADR platform and stringent data protection measures, further enhance its appeal. However, there are areas for improvement, such as expanding outreach and education to increase user awareness and continuously refining its processes to stay ahead of evolving IP laws and technologies.

The article also emphasizes the importance of collaboration between the WIPO Centre, other arbitration institutions, and international stakeholders to foster a more integrated and harmonized approach to IP arbitration. By leveraging its strengths and addressing areas for growth, the WIPO Centre can continue to play a vital role in the effective resolution of IP disputes, thereby contributing to the global innovation ecosystem and the protection of intellectual property rights.

Keywords: international arbitration intellectual property, disputes, WIPO, Centre.

Arbitration is one of the most popular methods of dispute resolution in many countries worldwide. Many international commercial disputes are solved through international arbitration [1]. The international arbitration is the most preferred method of dispute resolution historically [2].

Disputes arising in the intellectual property sphere can also be arbitrated in most jurisdictions [3]. Arbitration can be seen as an alternative to court litigations [4] in regard of IP. Considering that intellectual property is referred not only to moral rights [5], but more importantly to economic rights [6] it is worth standing that disputes arise in this sphere. At the same time, it is worth noting that IP is easily moving internationally, crossing borders, which explains the transnational nature of IP.

The advantages of arbitration, especially in international cases, have led many states, including key IP jurisdictions, to allow arbitral tribunals to handle IP disputes despite traditional reservations. While state courts still typically handle the invalidation of registered IP titles, more jurisdictions now permit arbitral tribunals to decide such issues incidentally, with effects limited to the parties involved [7].

There are institutions which are dealing in general and specifically with intellectual property disputes. One of the most important organizations in the World Intellectual Property Organization and its Centre for Arbitration and Mediation. WIPO was created in 1967 as a specialized agency of the United Nations. Its establishment aimed to promote and protect IP across the world. WIPO became operational in 1970, and since then, it has been instrumental in developing a balanced and accessible international IP system to support innovation and creativity. There are 193 members of the WIPO [8].

WIPO offers among others alternative dispute resolution options, namely mediation, arbitration, expedited arbitration, and expert determination. These options allow private parties to settle their domestic or cross-border commercial disputes [9].

Alternative dispute resolution is possible through the WIPO Arbitration and Mediation Centre, an independent body of WIPO, which was established in 1994.

The Centre was established by individuals with extensive expertise and significant experience in dispute resolution [10], including seasoned arbitrators, legal scholars, and industry professionals. These experts bring a deep understanding of both the theoretical and practical aspects of dispute settlement, ensuring that the Centre offers top-tier arbitration services. Their collective background spans various fields such as international law, commercial arbitration, intellectual property, and cross-border litigation, making the Centre a trusted institution for resolving complex disputes effectively and efficiently.

It should be specifically mentioned that disputes considered by the WIPO Arbitration and Mediation Centre are growing annually. If only about 400 disputes solved by this Centre in 2014, in 2023 2,811 disputes referred to the Centre [11].

Researchers claim that the WIPO Centre is truly international and highly experienced in intellectual property, therefore it is an ideal solution for avoiding litigations internationally. It is mentioned that institutional administration should be given to the Centre [12].

In addition, the Centre offers online arbitration tools, like eADR [13]. WIPO eADR offers several key features designed to enhance security and efficiency in dispute resolution. The platform is protected by firewalls, encryption, and is ISO/IEC 27001 certified, ensuring robust security. User authentication requires a username, password, and one-time passcodes via a mobile app.

Parties and neutrals can securely submit electronic communications to an online docket in various formats, with email alerts notifying users of new submissions, which can be accessed at any time. The platform also includes a search facility that allows communications to be searched and sorted by categories, including free text.

The message board feature enables users to post messages, with email notifications sent to all participants in the case. The case overview function provides basic information about the case, such as the case number, parties, status, dispute resolution clause, governing law, and place of arbitration.

WIPO maintains confidentiality in accordance with WIPO Rules [14] and ensures the protection of personal data in eADR submissions. Additionally, WIPO eADR is available at no cost to parties involved in WIPO ADR proceedings, making it a cost-effective solution for dispute resolution.

In conclusion, the WIPO Arbitration and Mediation Centre stands as a premier institution for resolving international IP disputes, offering expertise, efficiency, and confidentiality. Its advancements, including the WIPO eADR platform and strong data protection measures, enhance its effectiveness.

To further improve, the Centre can expand outreach and education to attract more users and continuously refine its processes to adapt to evolving IP laws and technologies. Collaboration with other arbitration institutions and stakeholders is essential for a more integrated approach to IP arbitration.

By building on its strengths and addressing areas for growth, the WIPO Centre will continue to support effective IP dispute resolution and contribute to the global innovation ecosystem.

References:

1. Grantham, William. “The Arbitrability of International Intellectual Property Disputes.” Berkeley Journal of International Law 14 (1996). P. 177.
2. Julian D. M. Lew, Applicable Law in International Commercial Arbitration 1 (1978).
3. David H. Herrington, Zachary S. O’Dell and Leila Mgaloblishvili, ‘Why Arbitrate International IP Disputes?’, in Global Arbitration Review, The Guide to IP Arbitration (2021) (1st ed.)
4. Franc¸ois Dessemontet, ‘Intellectual Property and Arbitration’ in Estudios sobre propiedad industrial eintelectual y derecho de la competencia. (Barcelona Asociacio´n Internacional para la Proteccio´n de la Propiedad Industrial 2005) 375 ff.
5. Fisher, William W. «Theories of Intellectual Property». In New Essays in the Legal and Political Theory of Property, ed. Stephen Munzer. Cambridge, UK: Cambridge University Press, 2001.
6. Posner, R. A. (2002). The Law & Economics of Intellectual Property. Daedalus, 131(2). http://www.jstor.org/stable/20027754
7. Vicente, Dario. (2015). Arbitrability of intellectual property disputes: A comparative survey. Arbitration International. 31.
8. https://www.wipo.int/members/en/
9. https://www.wipo.int/amc/en/
10. Michael Woller, Michaela Pohl, IP arbitration on the Rise,1, Kluwer Arbitration Blog, 2019.
11. ‘WIPO Caseload Summary: WIPO Mediation, Arbitration, Expert Determination Cases and Good Offices Requests’ (available at https://www.wipo.int/amc/en/center/caseload.html)
12. Martin, Julia A. “Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution.” Stanford Law Review 49, no. 4 (1997).
13. Loukas A Mistelis & Stavros L Brekoulakis, Arbitrability: International & Comparative Perspective, 1 Kluwer Law International 52 (2009).
14. https://www.wipo.int/amc/en/rules/