WIPO Arbitration and Mediation

Transcription

1 WIPO Arbitration and Mediation The Services of the WIPO Arbitration and Mediation Center WIPO-MOST Training Course Geneva November 11, 2003 Ignacio de Castro WIPO Arbitration and Mediation Center

2 WIPO Arbitration and Mediation Center Estabished in 1995 as part of the Internationa bureau of the Word Inteectua Property Organization (WIPO) Purpose: to promote the resoution of IP/IT disputes through arbitration and mediation

3 WIPO Center Experience Domain Names Leading provider of domain name dispute resoution services UDRP.info Sunrise.biz STOP.name ERDRP Tota , , ,556 1, , ,208 13, ,087 20,133 Index:

4 WIPO Center Experience: Mediation and Arbitration Growing caseoad Varied subject matter

5 Mediation and Arbitration Appropriate for most IP/IT disputes Enhances party contro / autonomy Time / cost-effective Often ess adversaria than court itigation

6 Neutraity Internationa disputes: avoid home court advantage through choice of: arbitrator / mediator anguage aw venue

7 Enforceabiity Arbitration: New York Convention with imited exceptions, automatic enforcement of arbitra awards more than 130 signatories Mediation: Settement enforceabe under contract aw

8 Options WIPO CONTRACT CLAUSE / SUBMISSION MEDIATION SETTLEMENT ARBITRATION EXPEDITED ARBITRATION AWARD

9 WIPO Rues, Causes and Submission Agreements Mediation Arbitration Expedited Arbitration Mediation foowed by arbitration Avaiabe at "Any dispute, controversy or caim arising under, out of or reating to this contract and any subsequent amendments of this contract, incuding, without imitation, its formation, vaidity, binding effect, interpretation, performance, breach or termination, as we as non-contractua caims, sha be submitted to mediation in accordance with the WIPO Mediation Rues. The pace of mediation sha be [London] The anguage to be used in the mediation sha be [Engish] If, and to the extent that, any such dispute, controversy or caim has not been setted pursuant to the mediation within [60][90] days of the commencement of the mediation, it sha, upon the fiing of a Request for Arbitration by either party, be referred to and finay determined by arbitration in accordance with the WIPO Arbitration Rues. Aternativey, if, before the expiration of the said period of [60][90] days, either party fais to participate or to continue to participate in the mediation, the dispute, controversy or caim sha, upon the fiing of a Request for Arbitration by the other party, be referred to and finay determined by arbitration in accordance with the WIPO Arbitration Rues. The arbitra tribuna sha consist of [three arbitrators] [a soe arbitrator]. The pace of arbitration sha be [London] The anguage to be used in the arbitra proceedings sha be [Engish]. The dispute, controversy or caim referred to arbitration sha be decided in accordance with [Engish] aw."

10 Mediation: Minima Risk, Significant Benefits Non-binding / party contro Confidentia Low cost Based on interests of the parties Vaue creation In inteectua property disputes

11 The Mediation process COMMENCEMENT APPOINTMENT OF MEDIATOR ORGANIZATIONAL CONTACTS MEETINGS CONCLUSION

12 Commencement and Appointment of the Mediator COMMENCEMENT APPOINTMENT OF MEDIATOR Request for mediation Mechanics - Arts. 3-5 Administration fee - Art. 21 Appointment of the mediator Importance - Art. 13 Procedure - Art 6

13 WIPO List of Neutras ORGANISATION MONDIALE DE LA PROPRIÉTÉ INTELLECTUELLE Centre d arbitrage et de médiation de OMPI David W. PLANT, Esq. 215 Litte Lake Sunapee Road New London, NH United States of America LIST OF MEDIATORS AND ARBITRATORS BIOGRAPHICAL DATA WORLD INTELLECTUAL PROPERTY ORGANIZATION WIPO Arbitration and Mediation Center Teephone: (1-603) /2655 Facsimie: (1-603) E-mai: DPantADR@ao.com Date of Birth: Apri 22, 1931 Nationaity: USA EDUCATIONAL AND PROFESSIONAL QUALIFICATIONS Registered to practice before United States Patent & Trademark Office, 1982; Licensed to practice in United States Supreme Court, 1968; Licensed to practice aw, N.Y. State Bar, 1957; LLB, Corne University, 1957; BME, Corne University, ,000 experts 100 nationaities Broad range of ADR, IP, and technica backgrounds Mediator s fees Roe of the WIPO Center

14 Preparation / Organizationa Contacts COMMENCEMENT APPOINTMENT OF MEDIATOR ORGANIZATIONAL CONTACTS Preparation Initia conference Issues to be mediated Participants Submissions Scheduing / ogistics F Roe of the WIPO Center

15 Mediation Sessions COMMENCEMENT APPOINTMENT OF MEDIATOR ORGANIZATIONAL CONTACTS MEETINGS Party presentations Objectives Identify and accommodate interests of the parties Tone Format Caucuses? Impasses Roe of mediator

16 Concusion of the Mediation COMMENCEMENT APPOINTMENT OF MEDIATOR ORGANIZATIONAL CONTACTS MEETINGS Successfu mediation Settement agreement enforceabe under contract aw Unsuccessfu mediation Withdrawa by one or both parties after the first meeting Decision of the mediator Faiure to pay fees /deposits CONCLUSION

17 Mediation foowed by Arbitration Mediation Arbitration Expedited Arbitration Avaiabe at "Any dispute, controversy or caim arising under, out of or reating to this contract and any subsequent amendments of this contract, incuding, without imitation, its formation, vaidity, binding effect, interpretation, performance, breach or termination, as we as non-contractua caims, sha be submitted to mediation in accordance with the WIPO Mediation Rues. The pace of mediation sha be [London]. The anguage to be used in the mediation sha be [Engish] If, and to the extent that, any such dispute, controversy or caim has not been setted pursuant to the mediation within [60][90] days of the commencement of the mediation, it sha, upon the fiing of a Request for Arbitration by either party, be referred to and finay determined by arbitration in accordance with the WIPO Arbitration Rues. Aternativey, if, before the expiration of the said period of [60][90] days, either party fais to participate or to continue to participate in the mediation, the dispute, controversy or caim sha, upon the fiing of a Request for Arbitration by the other party, be referred to and finay determined by arbitration in accordance with the WIPO Arbitration Rues. The arbitra tribuna sha consist of [three arbitrators] [a soe arbitrator]. The pace of arbitration sha be [London]. The anguage to be used in the arbitra proceedings sha be [Engish]. The dispute, controversy or caim referred to arbitration sha be decided in accordance with [Engish] aw."

18 Arbitration Consensua Efficient Binding No appea

19 Pace of arbitration (Art. 39 WIPO Arbitration Rues) Arbitra aw Arbitrabiity Eements to be considered Venue of hearings

20 Laws appicabe to the Arbitration (Art. 59) Agreement to arbitrate Substance of the dispute Enforcement of the award

21 WIPO ARBITRATION Request for Arbitration Answer to Request for Arbitration (30 days) Appointment of Arbitrator(s) Statement of Caim (30 days) Statement of Defense WIPO EXPEDITED ARBITRATION Request for Arbitration and Statement of Caim Answer to Request for Arbitration and Statement of Defense (20 days) Appointment of Arbitrator Hearing (maximum 3 days) Further Written Statements and Witness Statements Hearings Cosure of Proceedings Fina Award (1 month) Cosure of Proceedings Fina Award (3 months)

22 Arbitration Proceedings Request for Arbitration Answer to Request for Arbitration (30 days) Testing the water Interim measures Registration and administration fees

23 Arbitration Proceedings Schedue of Fees (A amounts are in United States doars) Amount in dispute Expedited Arbitration Arbitration Registration Fee Any Amount $1,000 $2,000 Administration Fee * Up to $2.5 M $1,000 $2,000 Over $2.5 M and up $5,000 $10,000 to $10 M Over $10 M $ 5, % of amount over $10 M up to a maximum fee of $15,000 $10, % of amount over $10 M up to a maximum fee of $25,000 Arbitrator(s) Fees * Up to $2.5 M $20,000 (fixed fee) Over $2.5 M and up to $10 M Over $10 M $40,000 (fixed fee) As agreed by the Center in consutation with the parties and the arbitrator As agreed by the Center in consutation with the parties and the arbitrator(s) Indicative rate(s) $ 300 to $ 600 per hour

24 Arbitration Proceedings Request for Arbitration Answer to Request for Arbitration (30 days) Appointment of Arbitrator(s) Party contro WIPO List Impartiaity and independence Defaut Jurisdiction of the tribuna

25 Arbitration Proceedings Request for Arbitration Answer to Request for Arbitration (30 days) Further written statements Preparatory conference Appointment of Arbitrator(s) Statement of Caim ( 30 days) Statement of Defense (30 days)

26 Arbitration Proceedings Request for Arbitration Answer to Request for Arbitration (30 days) Appointment of Arbitrator(s) Statement of Caim ( 30 days) Statement of Defense Further Written Statements and Witness Statements Presentation of evidence tribuna s contro admissibiity, discosure Witnesses Experiments Primers and modes Experts Hearings

27 Request for Arbitration Arbitration Proceedings Answer to Request for Arbitration (30 days) Appointment of Arbitrator(s) Statement of Caim (30 days) Award No appea Enforcement Statement of Defense Further Written Statements and Witness Statements Hearings Cosure of Proceedings Fina Award (3 months)

28 Expedited Arbitration When is it appropriate? Statement of Caim fied with Request for Arbitration and Statement of Defense with Answer to the Request Soe arbitrator Fixed arbitrator s fees for disputes up to USD 10 miion Shorter hearings Time imits shortened

29 The Roe of the WIPO Arbitration and Mediation Center Certainty Efficient and cost-effective administration List of Neutras and institutiona knowedge Other resources

30 Information Maiing ists