WIPO

The World Intellectual Property Organisation ("WIPO"), based in Geneva, Switzerland, has developed and now administers its own ADR facilities and Rules with a special focus on the issues surrounding commercial disputes in international intellectual property.

The commercial attractiveness of WIPO-backed dispute resolution lies in the institution's sympathy for and expertise in IP.

Typically, WIPO arbitration is agreed where intellectual property is at the heart of the commercial arrangements - licenses of technical trade information, know-how, secrets, and patents; licenses of trade marks and copyrights; merchandising; and research and development focussed joint ventures where the product of the venture is valuable IP.

WIPO Options

WIPO offers and administers mediation, arbitration, expedited arbitration and expert determination. Updated arbitration and expedited arbitration rules were brought into force by WIPO on 1 July 2021 and, unless the parties have agreed otherwise, apply to WIPO arbitrations and expedited arbitrations commenced on or after that date (an additional modification to this rule exists in the case of certain provisions concerning emergency relief which, unless otherwise agreed, only apply to arbitrations or expedited arbitrations conducted under WIPO arbitration agreements entered into on or after 1 June 2014). Furthermore, updated mediation rules were also brought into force by WIPO on 1 July 2020 and WIPO also has expert determination rules which were also updated as of that date. WIPO promotes its own standard clauses for inclusion in new agreements, and also offers standard wording for the referral of existing disputes to WIPO ADR.

The arbitration clause provides:

"Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of [three arbitrators] [a sole arbitrator]. The place of arbitration shall be [ ]. The language to be used in the arbitral proceedings shall be [ ]. The dispute, controversy or claim shall be decided in accordance with the law of [ ]"

 WIPO Arbitration Rules

In most respects the WIPO Arbitration Rules are typical of institutional arbitration: they permit parties to attempt to agree the features of the arbitration (the language, the number of arbitrators, the governing law) but otherwise provide for default settings or for WIPO to intervene. New features introduced in 2014 included provisions on joinder, consolidation and emergency relief before constitution of the tribunal.

Updates to the WIPO Arbitration Rules introduced in July 2021 included provisions for electronic filing, express reference to (and encouragement of) remote hearings, and certain disclosure requirements concerning the identity of third-party funders at an early stage.

As an alternative to its standard arbitration rules, WIPO has a set of expedited Arbitration Rules which parties may choose. Expedited arbitration applies basically the same rules as a full arbitration, but abbreviates time-limits and aims to save costs. For example the pre-hearing period is circumscribed; the hearing itself is conducted by a sole arbitrator and limited to 3 days; and the stated objective is for the tribunal to reach a decision within 1 month (see WIPO's comparison table here). A speedy resolution of disputes is invariably desirable, but it is particularly pertinent to IP disputes where the race to release technology can be held up in disputes.

The same focus on the special interests of IP is reflected the Tribunal’s power under Article 48 of the WIPO Arbitration Rules to “issue any provisional orders or take other interim measures it deems necessary, including injunctions and measures for the conservation of goods which form part of the subject matter in dispute, such as an order for their deposit with a third person or for the sale of perishable goods”. Relevantly, such an order may take the form of an interim award.