Is international arbitration part of your IP protection and enforcement strategy?

Intellectual property (IP) is pervasive and often disruptive, and the protection and enforcement of IP rights are frequently top priorities for businesses and organizations across all sectors and industries.

For most companies, it is a business imperative to resolve IP-related disputes effectively and efficiently. In some circumstances, litigating IP-related disputes before national courts is the most viable (or indeed only) solution. However, international arbitration may offer an attractive alternative for commercial parties in appropriate circumstances, particularly for the resolution of cross-border, multijurisdictional IP disputes. Indeed, the number of disputes referred to the WIPO Arbitration and Mediation Center continues to increase year on year, with 679 disputes referred to the center in 2023, up from 548 in 2022 – a significant increase of almost 24 percent.

As such, companies are encouraged to take a proactive and strategic approach to creating an IP protection and enforcement strategy.

In evaluating whether international arbitration might be right for your matters, some potential advantages include the ability to:

• Better preserve confidentiality and privacy
• Select, or influence the selection of, arbitrators with particular experience or focus
• Limit document discovery
• Tailor the dispute resolution process, and
• Better enforce any arbitral awards across borders.

Of course, international arbitration may not always be available or advantageous. Some potential disadvantages include:

• Complications and limitations with third parties and/or non-signatories
• Availability of effective, urgent interim relief
• More limited opportunities to appeal or challenge awards than court judgments, and
• The absence of precedential value in arbitral awards.

The authors were pleased to contribute a practice note to Practical Law which considers the role of international arbitration in the resolution of IP disputes. The note looks at the common characteristics of IP transactions and related disputes, the arbitrability of IP-related disputes, and the potential advantages and disadvantages of choosing international arbitration as a method of dispute resolution for IP-related disputes. To read the practice note, please download the PDF below.

If you have any questions on this topic, please contact any of the authors above or your usual DLA Piper contact.

The authors would also like to acknowledge the valuable contributions made to the practice note from colleagues across the firm, including Federica Bocci, Josh Wan and Marc Jacob, Rebecca Lawrence, Valerie Li, Anna-Mira Brandau and Allen Xu among others.