Arbitration - Global Arbitration Review's Damages Symposium


 






Jane Lambert

On Thursday 8 Feb 2024 I shall take part in a panel discussion on damages issues in IP and life sciences disputes as part of the Global Arbitration Review's Damages symposium.   I share the platform with very distinguished practitioners.  There will also be talks on simplifying evidence for tribunals, a question time and plenty of networking opportunities.   Anyone who wishes to attend can register here,

There is growing interest in arbitration and other forms of ADR for the resolution of intellectual property and technology disputes. In WIPO Arbitration and Mediation Centre Report 2023 (19 Jan 2024 NIPC News), I noted that the World Intellectual Property ("WIPO") Arbitration and Mediation Centre reported that it had disposed of 679 disputes in 2023 which was a 24% increase over the previous year and a 280% increase in the last 5 years (see WIPO ADR Highlights 2023 18 Jan 2024).

There are several reasons for this growing interest in ADR for IP dispute resolution.   There are some types of dispute for which arbitration or other forms of ADR are particularly well suited.  Determining fair, reasonable and non-discriminatory ("FRAND") terms for licences to work a SEP  (a patent that is essential for compliance with telecommunications or other standards) is an example.   As I noted in Appeal - Nokia Technologies and another v Oneplus Technologies and others on 13 July 2022 in NIPC Law, the Court of Appeal appeared to encourage this form of dispute resolution in  Nokia Technologies OY and another v Oneplus Technology (Shenzhen) Co Ltd and others [2022] EWCA Civ 947.   The WIPO offers many options for the resolution of FRAND disputes (see WIPO ADR for FRAND Disputes and WIPO ADR Options for FRAND Dispute Management and Resolution on the WIPO website).

Since the Brussels Recast Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters no longer applies to the UK and the European Commission has objected to British accession to the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (see EU Commission rejects the UK's Application to rejoin Lugano 6 May 2022 IP After Brexit) there has been a renewed interest in arbitration for the resolution of all kinds of cross-border disputes as the UK and its former EU partners are all parties to The New York Arbitration Convention on the Recognition and Enforcement of Foreign Arbitral Awards,  

Despite the failure of Eli Lilly's claim against Canada ( Eli Lilly and Company v. Canada (ICSID Case No. UNCT/14/2) and Philip Morris's against Australia (Philip Morris Asia Limited v. The Commonwealth of Australia, UNCITRAL, PCA Case No. 2012-12) there are plenty of arbitration proceedings between investors and states under bilateral investment and free trade treaties.  There may well be more that involve the United Kingdom under the free trade agreements that the government has negotiated 31 Dec 2020.  For more information on the topic see my articles Bilateral Investment Treaties - A Remedy for SME? [2013] EIPR 759 and Falling to BITs: the Eli Lilly and Philip Morris Cases 8 April 2017 NIPC Law.

Anyone wishing to discuss this article may call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

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