The World of Intellectual Property and the Decision to Arbitrate - WAMR 2013 Vol. 7, No. 1

DAVID D. CARON is Dean at the Dickson Poon School of Law, King’s College London. Prior to joining King’s College London, David was C. William Maxeiner Distinguished Professor of Law at the University of California at Berkeley. He has served as arbitrator, lead counsel and expert in both private and public international arbitral proceedings. He is included as a leading international arbitrator from the United States in CHAMBERS USA since its inaugural edition in 2005, and in THE INTERNATIONAL WHO’S WHO OF COMMERCIAL ARBITRATION. He served as Chair of the Advisory Board for the Institute of Transnational Arbitration of the Center for American and International Law from 2005 to 2009. From 1996 to 2003, he served as a Commissioner with the Precedent Panel (E2) of the United Nations Compensation Commission in Geneva resolving claims arising out of the 1990 Gulf War. Over a series of nine installments, the E(2) Panel addressed several thousand corporate claims in the construction, insurance, banking, transportation, export, tourist and aviation sectors. David Caron served as President of the American Society of International Law from 2010 to 2012, and is presently a member of the Executive Council of the American Bar Association Section on International Law. He also is a member of the Board of Editors of the AMERICAN JOURNAL OF INTERNATIONAL LAW and is a Co-Editor in Chief of WORLD ARBITRATION AND MEDIATION REVIEW. He serves as a member of the U.S. Department of State Advisory Committee on Public International Law, and is member of the group of Advisers to the American Law Institute on the Restatement 3rd of the U.S. Law of International Commercial Arbitration. He is a member of the Bars of the State of California and of England and Wales, and is a Barrister with Chambers at 20 Essex Street. Professor Caron can be reached at David.Caron@kcl.ac.uk.

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Originally from World Arbitration And Mediation Review (WAMR)

At least a decade ago, a discussion began in earnest about international arbitration of intellectual property (IP) disputes. Certainly, this discussion was ongoing before then, but the topic took on added significance as the number of transactions involving IP increased dramatically. IP represented a big sector of industry, and arbitration institutions and specialists were asking how arbitration might become part of this growing sector as it had become a part of other sectors. At that time, there were at least two perceptions about the IP sector and the arbitration of IP disputes. First, the IP sector preferred litigation to arbitration of its disputes. Secondly, the concerns of the IP sector turned on the assertion that IP disputes were fundamentally different from other disputes and that such differences were not particularly well served by the institutions of arbitration. What has followed is a decade-long effort by the arbitration community to address the special nature of IP disputes. Despite that decade of effort, it appears the IP world remains hesitant to choose arbitration. This article attempts to explain why this is the case.

I. THE DECADE OF EFFORTS TO MAKE ARBITRATION BETTER SUITED TO IP DISPUTES

The substantive effort to increase the appeal of arbitration for IP over this past decade has been threefold. First, given that a major advantage of arbitration is party control, it was thought that the special nature and needs of IP disputes might be addressed by special arbitration rules, and, indeed, the WIPO proceeded to prepare precisely just such a set of rules.