Arbitration

Arbitration is an alternative method of dispute resolution. The parties entrust their dispute to one or more private persons, the arbitrators, rather than to a state court. It is often chosen for its speed and confidentiality. It also allows the parties to appoint arbitrators who know the field of the dispute.

How arbitration unfolds

The procedure follows three main stages. First, the parties appoint the arbitrators. Second, the proceedings allow each side to present its arguments. Third, the arbitrators render their decision, the arbitral award. From its issuance, the award has the authority of res judicata. Its forced execution however requires an exequatur decision from the state court.

The parties may moreover ask the arbitrators to apply rules of law. They may also empower them to rule in equity, according to the nature of the dispute and the terms of the arbitration agreement.

Arbitration in intellectual property

In intellectual property, arbitration makes it possible to resolve a dispute outside the courts, before one or more specialised arbitrators. It is often used in complex disputes over patents, trade marks, copyright or trade secrets. It offers several advantages:

1. Confidentiality: unlike court hearings, which are in principle public, arbitration protects sensitive information, such as industrial secrets or the detail of inventions.
2. Expertise of the arbitrators: the parties may choose intellectual property specialists, who decide technical or legal questions with greater precision.
3. Speed and flexibility: arbitration is often faster than a trial. The parties moreover choose the seat, the rules of procedure and even the applicable law. That control matters greatly where the economic stakes are high.
4. International reach: arbitration is particularly suited to disputes spanning several countries. The New York Convention of 1958 ensures the recognition and enforcement of awards in most states.

Arbitration in patent matters

In patent matters, companies often resort to arbitration for licence or infringement disputes. They thus avoid parallel proceedings before several national courts. It should however be borne in mind that the arbitrator rules on the validity of the patent only between the parties. The arbitrators are often attorneys specialised in intellectual property law.

See here our detailed article on arbitration in intellectual property.

See also our practice of arbitration and mediation in patent matters.