The judgment delivered on 13 May 2026 by the Court of Appeal of England and Wales in Acer v Nokia ([2026] EWCA Civ 564) does not change the substance of FRAND law. It reassigns its enforcement mechanism:arbitration becomes a legitimate route for determining licence terms, no longer a mere boilerplate gesture in negotiations.
The case concerned Nokia's video codec portfolio, declared essential to the H.264/AVC and H.265/HEVC standards. Acer and ASUS had asked the English courts for RAND determinations, after Nokia had launched infringement actions in Germany, before the UPC, in the United States, Brazil and India. Nokia offered an immediate interim global licence, with final terms to be set by an arbitral tribunal constituted under the auspices of the ICC.
The Court of Appeal held that offer to be objectively RAND. The turn lies there: arbitration is no longer conceived against the judge, but as a mode of performing the contractual undertaking. This is what we call the contractual turn of FRAND arbitration.
Contractual performance, not compulsory arbitration
The court imposed arbitration on no one. It found that Nokia's offer, an immediate licence coupled with a final determination by an independent tribunal, was a valid way of performing the RAND undertaking. The implementer kept the choice: accept, or refuse and bear the commercial consequences of the continuing parallel infringement proceedings.
The nuance is decisive. This is not mandatory arbitration but arbitration embedded in contractual performance: the patentee proposes a credible determination route; the judge, rather than asserting his own rate-setting authority, may draw the consequences for his own proceedings.
What the judgment does not say
The judgment should not be overread. Four caveats delimit its reach:
- Nokia offered an immediate interim global licence; whether a bare offer to arbitrate, without immediate access to the technology, would suffice remains an open question;
- no substantive objection to the ICC mechanism had been raised; the treatment of legitimate objections (seat, institutional rules, confidentiality regime, tribunal constitution) remains to be decided;
- transparency remains unfinished: a FRAND arbitration operating as a black box would lose its legitimacy, and awards should be published at least in partially redacted form;
- the asymmetry persists between the patentee, who can sue for infringement, and the implementer, usually a declaratory claimant; the answer lies in procedural policing, not in rejecting arbitration.
From paranoia to procedure
The litigation landscape for standard essential patents had settled into what may be called a paranoid regime: parallel proceedings on four continents, injunctions and anti-injunctions, inconsistent rulings. Acer v Nokia offers a way out through procedure: where the patentee presents a credible, immediate and balanced arbitral route, the litigation spiral can be converted into an orderly determination. The same concern runs through the prior question of the characterisation of the FRAND undertaking : method first, the number second.
State courts do not vanish from the equation. The judgment simply adds a variable to the strategy: the English judge may stay his hand rather than set the rate himself, once an independent and enforceable determination is genuinely available.
The Mannheim signal
At the same moment, the Mannheim Local Division of the UPC sent the parties in Samsung v ZTE a quantified settlement proposal (a global cross-licence of 640 or 730 million dollars depending on the term retained) and suggested mediation under the auspices of the Patent Mediation and Arbitration Centre (PMAC), with a stay of proceedings upon mutual acceptance.
The device differs from Acer: no binding determination, no award, no forced referral. But the institutional intuition is identical: where the parties agree that a licence must exist and dispute only its price, the negotiated or arbitral route restores the contractual economy of the undertaking better than piling up lawsuits.
Choosing the institution
The judgment anoints no institution. The ICC, chosen in Nokia's offer, brings procedural robustness; WIPO administers a practice dedicated to SEP and FRAND disputes, with around 95 cases handled; PMAC, whose mediation and arbitration rules adopted in April 2026 expressly address FRAND disputes, brings patent specialisation within the UPC ecosystem.
More than the label, the architecture matters: neutrality of the tribunal, technical and economic expertise, framed disclosure of comparable licences, procedural economy, confidentiality confined to what is justified, enforceability of the award under the New York Convention, publishable reasoning. An arbitration proposal is judged by these criteria, and it is against them that one prepares a strategy ofpatent arbitration and mediation.
The contractual turn
Why can arbitration perform the FRAND undertaking? Because the undertaking is a contractual obligation to make access available on objective terms. Within the ETSI framework, governed by French law, it is analysed as a stipulation pour autrui: the organisation receives the promise, the patentee gives it, future implementers are its beneficiaries. Arbitration creates no new obligation; it determines the precise content of a pre-existing one. The UK Supreme Court has just confirmed the vitality of this contractual reading in Tesla v InterDigital, on the FRAND undertaking inside a patent pool.
Each side must draw its own discipline from this. The patentee must not weaponise arbitration: opaque offers, unbalanced institutions and injunctive pressure destroy the credibility of the proposal. The implementer must not ritually flee it: refusing a credible proposal, without a serious procedural counter-offer, increasingly looks like patent hold-out. Counter-proposing a credible forum, defining disclosure, requiring a reasoned award and preserving access during the determination: that is the conduct the judgment rewards. The full text is available on the website of the English judiciary.
Key takeaways
- Acer v Nokia ([2026] EWCA Civ 564, 13 May 2026): an offer of an immediate interim licence with final determination by arbitration can constitute a valid RAND offer.
- This is not compulsory arbitration but arbitration embedded in the performance of the contractual FRAND undertaking.
- Four caveats remain: immediate access required, legitimate objections to the mechanism, transparency requirement, structural asymmetry between patentee and implementer.
- The Mannheim proposal in Samsung v ZTE (PMAC mediation) reflects the same conversion of litigation into orderly determination.
- The institution matters less than the architecture: neutrality, expertise, disclosure, enforcement under the New York Convention, publishable reasoned awards.
- Refusing a credible arbitral route without procedural engagement exposes the implementer to a hold-out charge.
Frequently asked questions
Is FRAND arbitration now mandatory in the United Kingdom?
No. The judgment compels no one to arbitrate. It holds that an offer combining an immediate interim licence and a final arbitral determination can validly perform the RAND undertaking, which weighs on the strategy of an implementer who refuses it.
Would a bare offer to arbitrate, without an interim licence, be enough?
The question is expressly left open. In Acer v Nokia, immediate access to the technology was guaranteed during the determination; that was central to the validity of the offer.
Which institution should be chosen for a FRAND arbitration?
None is anointed. The ICC, WIPO and PMAC have distinct strengths; the choice turns on procedural architecture: neutrality, expertise, disclosure regime for comparables, controlled confidentiality, enforceability of the award.
May an implementer refuse an arbitration proposal?
Yes, but not silently. It must state its objections and counter-propose a credible mechanism, failing which its refusal may be read as a delaying strategy when its FRAND conduct is assessed.
The firm assists patentees and implementers in structuring and conducting FRAND arbitrations and mediations, as well as in FRAND undertaking litigation, through its practice asFRAND and standard essential patents counsel. Talk to us.
This article is an original and substantially updated adaptation of an analysis by Matthieu Dhenne first published on Kluwer Patent Blog on May 13, 2026: Come Together? Acer v Nokia and the Contractual Turn of FRAND Arbitration.