Choice of Arbitrator - Chapter 5 - Arbitration of International Intellectual Property Disputes

James Bridgeman is a Barrister at Law, FCIArb, Chartered Arbitrator, in general practice in Ireland and in England and Wales at Lamb Chambers, Temple, London with a special interest in arbitration, ADR, commercial law and intellectual property disputes. He is a graduate of Trinity College Dublin where he read history and political science and subsequently read Law at the Kings Inns, Dublin. Before commencing practice as a Barrister he qualified as a trademarks attorney. A former Chairman of the Irish Branch of the Chartered Institute of Arbitrators, he is a member of the ICC Commission on Arbitration. Mr. Bridgeman is a WIPO trained mediator and regularly acts as arbitrator and as panelist for Internet domain name disputes appointed by WIPO, NAF, Nominet UK and the Czech Arbitration Court. He is a lecturer in Law at ITT Dublin, a member of the Technology Committee of the CIArb and has initiated and directs the adreurope.com project.

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Originally from Arbitration of International Intellectual Property Disputes

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I. Introduction

The constitution of the arbitral tribunal is preceded by a process to identify, select, nominate and appoint the arbitrator or arbitrators. The arbitral tribunal has the responsibility to manage the arbitration, to make the ultimate decision and to draft and publish an effective and secure award. It follows that the selection and appointment of a competent and effective tribunal is critical for the security and success of the process. The tribunal must have the capacity to grasp the technical and legal issues in dispute and to make the correct determination following the hearing in the form of an effective and enforceable award. Additionally, the tribunal must have an understanding of the legal and ethical principles that govern the arbitral process, the case management skills required to move the procedure along in an efficient and expeditious manner, and, in the case of three member tribunals in particular, the personality and personal skills required to work as part of a team to deliberate on the issues, reach an agreement where possible and engage in the drafting of an effective award.

Even prior to entering into a transaction with an IP element, parties may anticipate the risk factors and potential fault lines in their relationship, but they are unlikely to have the prescience to foresee the nature and extent of any future disputes. The nature and extent of a dispute will in turn dictate the appropriate choice of arbitral tribunal. In contracts that involve the creation, license or assignment of intellectual property, conflicts can generally be categorized as legal, technical, logistical or financial, but disputes may be, and usually are, multifactorial.

The full extent of the issues in dispute may not even be apparent when the tribunal is appointed.1 When a dispute arises, the technical issues will often be clear. The legal issues are sometimes not so easily identified.2 The nature of intellectual property dictates that there is often an international element to the dispute; there may also be an anti-trust dimension.3

Table of Contents:

I. Introduction

II. The Constitution and Composition of the Tribunal
A. Number of Arbitrators
B. Arbitrator Selection Procedures

III. The Qualities and Qualifications of the Arbitrator
A. Party Choice
B. Mandatory Qualifications under the Law
C. Mandatory and Optional Qualifications under Arbitral Rules
D. Arbitrator Characteristics and Qualifications for IP Disputes
E. Identifying and Selecting the Tribunal

IV. The Principles of Independence and Impartiality
A. The Nature of the Requirement of Independence
B. Sources of Information and the Appointee’s Duty of Disclosure
C. Independence and Impartially Issues in IP Arbitrations

V. Conclusion