Introduction - Chapter 1 - Arbitration of International Intellectual Property Disputes, Second Edition
I. History and Overview
This book provides a thorough guide to those aspects of the arbitral process that are of particular significance to international IP disputes. It is not intended as a general overview of international arbitration for those unfamiliar with it. Rather, the book deals in detail with topics where the IP nature of the dispute gives rise to special, complicated or unique issues or concerns. This initial chapter explores the nature of international IP disputes and how and why arbitration can, in many circumstances, provide a better mechanism to resolve them than can court litigation. Later chapters cover drafting of effective arbitration provisions for IP agreements and the principal issues that can arise in an IP arbitration itself, from arbitrability and public policy concerns through choosing the tribunal, confidentiality, information disclosure or discovery, choice of law, provisional and final remedies and enforceability.
II. International IP Disputes
Before considering the reasons why international IP disputes are particularly well suited to resolution by arbitration, several things are worth noting about the nature of such disputes, wherever they might be resolved. As a threshold matter, it is important to note that the subject matter of this book is international arbitration of disputes in which IP issues are of importance; it is not about disputes pertaining to international IP. To a great extent the reason for this coverage is practical. While there are many types of IP that exist in countries across the world, and at least one form—copyright—has significant international uniformity by treaty, there is only one category—domain name rights—that exists even in part under anything that can be considered an international law regime. Thus, although the disputes may have many international aspects—the parties may be from different countries, the IP may arise under different countries’ laws, and so on—virtually all IP rights themselves are national and not international.
What then makes a given IP dispute international in nature?