Originally from Arbitration of International Intellectual Property Disputes, Second Edition

A government’s monopoly on dispute resolution (or, said differently, a government’s status as default resolver of disputes) gives way to the arbitration process only when, and to the extent that, the government gives its consent.  Even in countries where there is a strong public policy favoring arbitration as the preferred method of dispute resolution, such consent—the acceptance of arbitration as a substitute for court resolution of disputes—is far from universal.  For example, no jurisdiction has been found in which either criminal or marital separation cases may be arbitrated.  It would appear to be universal public policy to reserve the resolution of such disputes to the state, and it would thus be pointless to seek an arbitral award in such cases.

Without state consent to arbitrate the claims, there is no enforceability of the outcome. Without enforceability, the efforts and expense of obtaining an arbitral award may prove largely futile.  The mechanisms of compelling acceptance of the findings and conclusions contained in an award and compliance with the relief granted remain exclusively within the province of government.  For this reason, great care must be taken at the outset of an arbitration proceeding to ensure that at the conclusion of the arbitral process, enforcement of the award is not precluded.

While the examples above—crimes and marital matters—demonstrate a bright line regarding arbitrability, for many areas of dispute the result is far less clear.  Such is the case with IP disputes.

With that backdrop, this chapter will examine the arbitrability of IP disputes.  It will focus on the concerns arising in an arbitrability analysis and the special significance of arbitrability to IP disputes.  The impact of public policy on the analysis will be briefly considered, as a more in-depth analysis of the impact of public policy on arbitration proceedings is presented in Chapter 9.  Finally, it will review the general arbitrability of types of IP disputes and survey the state of the arbitrability of IP disputes in a selection of jurisdictions worldwide.