An International Survey by World Intellectual Property Organization (WIPO) reveals the top 10 priorities in choice of dispute resolution clauses, which include cost, time, enforceability, quality outcome, neutral forum, confidentiality among others. Over 70% of the respondents cited cost as the top priority in both international and domestic contracts followed by time and enforceability.
WIPO Alternative Dispute Resolution (ADR) provides Mediation, Arbitration, Expert Determination as possible options for resolving intellectual property (IP) disputes outside the courts. On one hand, mediation refers to an informal consensual process in which a neutral intermediary, the mediator, assists the parties in reaching a settlement of their dispute, based on the parties’ respective interests. The mediator cannot impose a decision. The settlement agreement has force of contract. Mediation leaves open available court or agreed arbitration options. Arbitration, on the other hand, consensual procedure in which the parties submit their dispute to one or more chosen arbitrators, for a binding and final decision (award) based on the parties’ rights and obligations and enforceable internationally. Arbitration normally forecloses court options. Finally, expert determination refers to consensual procedure in which the parties submit a specific matter (e.g., technical question) to one or more experts who make a determination on the matter, which can be binding unless the parties have agreed otherwise.
There are several routes to WIPO ADR including the inclusion of an ADR contract clause electing WIPO Rules, ADR submission agreement electing WIPO Rules, e.g., in existing non-contractual disputes; Unilateral request for WIPO Mediation by one party; and Court referrals. Below is an example of a WIPO Model Clause on Mediation followed by Expedited Arbitration:
“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 noncontractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language]” If, and to the extent that, any such dispute, controversy or claim has not been settled pursuant to the mediation within  days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. Alternatively, if, before the expiration of the said period of  days, either party fails to participate or to continue to participate in the mediation, the dispute, controversy or claim shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim referred to arbitration shall be decided in accordance with [specify jurisdiction] law.”
The WIPO Arbitration and Mediation Center facilitates the resolution of commercial disputes between private parties involving IP and technology, through procedures other than court litigation (alternative dispute resolution: ADR). The Center has offices in Geneva and Singapore. ADR of IP disputes benefits from a specialized ADR provider with WIPO mediators, arbitrators and experts experienced in IP and technology – able to deliver informed results efficiently. Other benefits include competitive WIPO fees and international neutrality.
Sources: Adam Rattray, Presentation at WIPO-WTO Colloquium for Teachers of Intellectual Property, June 13-24, 2016