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Avoiding the Pitfalls of Litigating International Intellectual Property Disputes before State Courts: Are Alternative Dispute Resolution (ADR) Methods a Useful Alternative?

Professor Jacques de Werra


Abstract

In today’s information society in which intellectual assets are used globally irrespective of any national or regional borders, the basic principle of territoriality which applies in intellectual property law appears obsolete. The strict application of this key historical intellectual property principle makes it difficult to solve efficiently cross-border intellectual property disputes because it often leads to the atomization of international intellectual property disputes and even to potentially conflicting court decisions which are rendered by different local state courts. These unsatisfactory circumstances particularly result from the application of principles of private international law which reflect the principle of territoriality.
In view of this situation, the goal of the paper is to explore whether alternative dispute resolution (ADR) methods can constitute a valid alternative for solving international intellectual property disputes. For this purpose, the paper will analyze under what circumstances ADR methods can be used in international intellectual property disputes and in what situations ADR methods could potentially be used in such context. The paper will also discuss the potential evolution of ADR methods from a contractually-based optional dispute resolution system into a regulatory-based obligatory dispute resolution system (by reference to the domain name dispute resolution system of the UDRP). This analysis will include the potential role of bilateral free trade agreements which can also contribute to regulate alternative dispute resolution systems. These treaties indeed appear to open interesting though challenging new perspectives and new spaces for the future development of international intellectual property dispute resolution systems.