The Arbitrability of Disputes Concerning Unregistered Intellectual Property Rights

Growing involvement of intellectual assets in today’s international commerce has inevitably increased international disputes concerning intellectual property rights between private parties. Given that many of such disputes involve parties from different countries and intellectual properties arising under the laws of more than one country, the parties to the dispute may find it undesirable or cumbersome to recourse to national courts. In particular, the territorial nature of intellectual property renders these disputes incapable of being resolved on an international basis. The multiplicity of litigation proceedings is susceptible to serious inconsistencies coupled with uncertainty and expense of enforcing foreign judgments in certain jurisdictions.
International arbitration, as an interesting alternative to court litigation, can offer genuine advantages to settle intellectual property disputes. Yet, in many legal systems, the arbitrability of intellectual property disputes has been far from settled. Since Intellectual property rights are in fact monopolies granted by States and many of them must be registered with a State authority if they are to subsist, the question of whether parties can validly submit intellectual property disputes to arbitration has given rise to a historical national resistance to arbitration of intellectual property disputes in general and registered intellectual property disputes in particular. Today, national legal systems tend to take different approaches to this issue; from excluding arbitration on registered intellectual property disputes together with recognizing full arbitrability of all disputes concerning registered intellectual property rights. Nevertheless, a comparative study of modern legal systems and their developments shows that the prevailing trends are shifting toward making most intellectual property disputes arbitrable.