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The Role of Arbitration in International Intellectual Property Defense PPT Slideshow

The Role of Arbitration in International Intellectual Property Defense PPT Slideshow

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Published by Adam R. Tanielian
This dissertation focuses on intellectual property disputes with a dual aim of proposing ways to improve time and cost efficiencies in existing dispute resolution processes, and to further the cause of development of new systems. Litigation and arbitration, the two major methods of binding resolution, are reviewed for their strengths and weaknesses. Arbitration has weaknesses including the mutual consent requirement, lack of appeal, absence of a system of case law, and jurisdictional variations relating to arbitrability of certain IP disputes. However, advantages of arbitration such as confidentiality, international applicability under the New York Convention, limited discovery, and use of specialized tribunals support a recommendation of arbitration as the better method.
Special attention is paid to multijurisdictional disputes and to internet infringement. Statutes from numerous nations are reviewed, although the bulk of the comparative research pertains to Canada and the USA. The objective is to clarify important strategic business issues for participants in NAFTA. Patents, trademarks, copyrights, licensing, and trade secrets court cases from the USA and Canada are reviewed alongside corresponding statutes, providing analyses of similarities and differences in IP law between the nations. Lex loci and lex fori differences between nations like Canada and the USA make arbitration more appealing than litigation.
Analyses of domestic arbitration laws and cases show national policies strongly favor arbitration. UNCITRAL Model Law nations such as Canada exhibit minor differences when compared to the USA, but the Federal Arbitration Act is considered comparable to Model Law implementing statutes in practice. Recognition and enforcement of foreign and domestic arbitral awards is available, and courts are most often unwilling to disturb awards rendered by tribunals.
Rules of arbitration from UNCITRAL, LCIA, ICC, and WIPO are reviewed. Court cases, primarily from the USA and Canada, are examined to show interconnectedness between the FAA, Model Law, and rules of arbitration. WIPO is determined to offer the best services for IP disputes, although the degree of control over the arbitration process allows parties to tailor any proceedings to fit their particular needs.
Online dispute resolution is considered a key aspect of the bright future of arbitration. Upon reviewing court cases, statutes, treaties, and expert opinions, I recommend that internet infringement disputes be referred to compulsory arbitration. Arbitration is recommended for any number of IP disputes, and thus parties to contracts are recommended to include clear and comprehensive provisions in contractual clauses. Greater harmonization of public policy is recommended, both within large nation-states such as the USA and internationally. The continued evolution of international trade dispute resolution is supported.
This dissertation focuses on intellectual property disputes with a dual aim of proposing ways to improve time and cost efficiencies in existing dispute resolution processes, and to further the cause of development of new systems. Litigation and arbitration, the two major methods of binding resolution, are reviewed for their strengths and weaknesses. Arbitration has weaknesses including the mutual consent requirement, lack of appeal, absence of a system of case law, and jurisdictional variations relating to arbitrability of certain IP disputes. However, advantages of arbitration such as confidentiality, international applicability under the New York Convention, limited discovery, and use of specialized tribunals support a recommendation of arbitration as the better method.
Special attention is paid to multijurisdictional disputes and to internet infringement. Statutes from numerous nations are reviewed, although the bulk of the comparative research pertains to Canada and the USA. The objective is to clarify important strategic business issues for participants in NAFTA. Patents, trademarks, copyrights, licensing, and trade secrets court cases from the USA and Canada are reviewed alongside corresponding statutes, providing analyses of similarities and differences in IP law between the nations. Lex loci and lex fori differences between nations like Canada and the USA make arbitration more appealing than litigation.
Analyses of domestic arbitration laws and cases show national policies strongly favor arbitration. UNCITRAL Model Law nations such as Canada exhibit minor differences when compared to the USA, but the Federal Arbitration Act is considered comparable to Model Law implementing statutes in practice. Recognition and enforcement of foreign and domestic arbitral awards is available, and courts are most often unwilling to disturb awards rendered by tribunals.
Rules of arbitration from UNCITRAL, LCIA, ICC, and WIPO are reviewed. Court cases, primarily from the USA and Canada, are examined to show interconnectedness between the FAA, Model Law, and rules of arbitration. WIPO is determined to offer the best services for IP disputes, although the degree of control over the arbitration process allows parties to tailor any proceedings to fit their particular needs.
Online dispute resolution is considered a key aspect of the bright future of arbitration. Upon reviewing court cases, statutes, treaties, and expert opinions, I recommend that internet infringement disputes be referred to compulsory arbitration. Arbitration is recommended for any number of IP disputes, and thus parties to contracts are recommended to include clear and comprehensive provisions in contractual clauses. Greater harmonization of public policy is recommended, both within large nation-states such as the USA and internationally. The continued evolution of international trade dispute resolution is supported.

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Categories:Business/Law
Published by: Adam R. Tanielian on Jul 12, 2013
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10/05/2013

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The Role of Arbitration inInternational IntellectualProperty Dispute Resolution
 Adam Richard Tanielian An oral presentation tothe Institute of International Studiesat Ramkhamhaeng Universityin partial fulfillment of therequirements for the degree of Doctor of LawsJuly 2013
 
 
Synopsis of Research
IP disputes have become excessively costly andtime consuming, especially when the scope is international Arbitration has emerged as a recommended methodof resolving international disputesComparison between arbitration and litigation on various
points can confirm arbitration’s strengths
 
Comparing and contrasting US and Canadian legislationand case law, along with that in other nations, helps explainwhy arbitration is an attractive optionOnline dispute resolution can help solve persistent problemswith jurisdiction and cooperation on internet infringement
 
Preliminary Questions of Law
Do sovereign nations have identical legal systems suchthat a single global litigation strategy may be used?Is there a binding alternative disputeresolution method available? Are arbitral awards internationally valid?Can all IP disputes be settled by arbitration?
 
 Answer:no. Answer:yes,arbitration. Answer:No. Answer:Yes. Answer:Yes.Have nations formally accepted arbitrationas a means of IP dispute resolution?

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