DL Arbitration and Mediation

Question 1

What is the UDRP?

Answer 1

The Uniform Domain Name Dispute Resolution Process was adopted by ICANN in 1999 on
the basis of recommendations made by WIPO in the First WIPO Internet Domain Name
Process.

Usually cases of:

• bad-faith
• abusive registration
• use of domain names
• cybersquatting

Question 2

How many cases have been processed?

Answer 2

35000 UDRP cases have been processed

Question 3

APPLICABILITY OF THE UDRP

Answer 3

The UDRP applies to registrations in generic top-level domains (gTLDs), such as .com, .net
and .org

Question 4

RIGHTS ACTIONABLE UNDER THE UDRP

Answer 4

The UDRP requires a complainant to have rights in a trade or service mark

Question 5

-

Answer 5

Personal names, descriptive terms
and geographical identifiers (though not actionable as such) may be actionable to the extent
that they have acquired secondary meaning (through appropriately evidenced use) as a
mark.

Question 6

How it works?

Answer 6

1. the rights-holding complainant submits its electronic complaint to the provider, (which has 5 days to conclude an administrative compliance review of the complaint.)

Typically, this will
include registrar verification of relevant registrant name and contact information, along with a request for confirmation that the
disputed domain name has been locked pending resolution of the dispute. In the event that any
administrative deficiencies are identified in the complaint, the Complainant has five days within which to correct these. On
successful conclusion of the
administrative compliance check, the provider proceeds to formally
commence the proceedings by forwarding a copy of the Complaint (including any Annexes) to the Respondent by email. The provider
also sends written notice of the dispute to the Respondent to any
available postal address and/or fax number.

The respondent has 20 days to file a response from the date the Provider notifies the respondent of a filed complaint. The Provider then appoints an independent
single- or three-member panel to decide the case.

A reasoned decision is taken within two weeks by the panel. If the panel orders the transfer or cancellation of the domain name (these are the sole remedies available, with monetary damages, in particular, being excluded), the registrar is obliged to implement the decision, except if the losing domain name registrant files a case concerning the disputed domain name in a competent court against the complainant within 10 business days of notification of the panel decision. The UDRP Provider posts notice of the filing of a case and the full text of decisions on its website.

Question 7

UDRP SUBSTANTIVE ELEMENTS

Answer 7

the complainant must establish that the following three
cumulative criteria are met:
(i) the domain name is identical or confusingly similar to a trademark or service mark in
which the complainant has rights; and
(ii) the registrant of the domain name has no rights or legitimate interests in respect of
the domain name; and
(iii) the domain name has been registered and is being used in bad faith.

Question 8

Identity or Confusing Similarity under the UDRP

Answer 8

this element is a standing requirement. he threshold test for confusing similarity under the UDRP to
involve a direct comparison between the trademark and the alphanumeric string of the
domain name at issue to assess likelihood of Internet-user confusion. The test is usually
applied without regard to website content, or to the relevant gTLD

to satisfy the UDRP test:

• the addition of common
• dictionary
• descriptive
• negative terms

Question 9

What is pejorative term in a domain name ?

Answer 9

{trademark}sucks.com and will be considered confusingly similar to the complainant’s trademark.

Question 10

the lack of Rights and Legitimate Interests when there are no: ?

Answer 10

• the domain name in connection with a bona fide offering of goods or services,
• legitimate non-commercial use
• fair use

Question 11

On who falls burden of proof under UDRP ?

Answer 11

on the Complainant,
where a Complainant makes an initial prima facie case that
the Respondent lacks rights or legitimate interests in a disputed domain name, the burden of
production on this element generally passes to the Respondent.

Question 12

How to defined the rights and legitimate interests ?

Answer 12

in order to find rights or legitimate interests in a domain name
based on the generic or dictionary meaning of a word or phrase contained therein, the
domain name would need to be genuinely used or at least demonstrably intended for such
use in connection with the relied-upon meaning (and not, for example, to trade off third-party
rights in such word or phrase). (e.g. a respondent may well have a right to a domain name
“apple” if it uses it for a genuine site for apples, but not if the site is aimed at selling
computers or MP3 players, for example, or an inappropriate other purpose).

Question 13

Bad faith for UDRP is ?

Answer 13

The requirement under the UDRP for registration and use in bad faith has, for the most part,
been interpreted by Panels as imposing a cumulative (or conjunctive) requirement.

Question 14

Examples of the bad faith?

Answer 14

indications that the
domain name has been registered for the purpose of selling it to the complaining trademark
owner or their competitor, or used for attracting visitors to the registrant’s site for commercial
gain by creating a likelihood of confusion with complainant’s trademark.

Question 15

Precedent?

Answer 15

The UDRP does not use a doctrine of precedent, but still consider decisions with similar fact situations.

Question 16

Appeals and Refilings

Answer 16

The UDRP does not include an appeals process as such - parties who wish to do so may pursue a matter de novo in court.

Question 17

What is objectives and the main areas of activity of WIPO?

Answer 17

WIPO’s principal objective is to promote the protection of intellectual property throughout
the world through cooperation among States, and, where appropriate, in collaboration
with other international organizations.

Question 18

What kind of ADR procedures offered by the WIPO AnM center?

Answer 18

§

Question 19

What is the advantages of ADR procedures ?

Answer 19

§

Question 20

What kind of disputes may be submitted to ADR by WIPO AnM Center?

Answer 20

§

Question 21

What is WIPO?

Answer 21

is an independent, intergovernmental organization established by a Convention signed in Stockholm on 14 July, 1967 and entered into force in 1970. it forms part of the
United Nations system of organizations and has its headquarters in Geneva,
Switzerland. WIPO comprises 188 Member States. The executive head of WIPO is the Director
General, who is elected by WIPO’s Member States. The secretariat of WIPO is the
International Bureau comprising over 1,000 staff members.

Question 22

What WIPO promotes ?

Answer 22

• innovation and creativity throughout protection IP rights. protection is means to encourage creative activity, industrialization, investment and honest trade. They support and encourages technological innovation and artistic creativity.

Question 23

What is the main areas of activity of WIPO?

Answer 23

• promote the protection of IPR
• encourages the conclusion of new international treaties and the modernization of national statutes.
• provides technical assistance to developing countries, assembles and disseminates information, and maintains services that facilitate the obtaining of protection for inventions, trademarks and industrial designs.
• promotes other administrative cooperation among Member States

Question 24

How much WIPO administrate of treaties ?

Answer 24

more than 20 treaties and conventions, e.g Paris, Bern, Madrid, PCT treaties.

Question 25

What is WIPOs cooperation for development ?

Answer 25

• promoting the protection of creative intellectual activity
• facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate their economic, social and cultural development, and organizing easier access to the scientific and technological information contained in millions of patent documents around the word

Question 26

Who funds WIPO?

Answer 26

• WIPO provides its services to its Members States and to individuals and enterprises who are constituents of those States

Question 27

What are the main objectives and areas of activity of WIPO?

Answer 27

• providing protection to IPR worldwide through cooperation among States and with other International organization.
• administering more than 20 international treaties
• provides technical assistance to developing countries
• assembles and disseminates IP information
• maintains services that facilitate the obtaining of protection for inventions, trademarks and industrial designs
• provides alternative dispute resolution services AnM Center

Question 28

What kind of procedure WIPO Center offers?

Answer 28

• Meditation
• Arbitration
• Expedited Arbitration
• Mediation followed by arbitration
• Expert Determination ??

Question 29

what is Mediation?

Answer 29

is a consensual process in which a neutral person facilitates discussion and negotiation between the parties so that the parties themselves can solve their problem. The
parties design both the process and the terms and conditions of their solution to their
problem. In contrast to adversarial procedures, such as litigation or arbitration, a mediator
cannot impose a settlement on the parties. Also, any party can abandon the mediation at
virtually any time before signing a settlement agreement.

Question 30

What is Arbitration ?

Answer 30

Arbitration is a consensual procedure in which a neutral person or persons impose a
binding decision on the parties. Whereas the parties may design the procedure, the
arbitrator designs the terms and conditions of the decision. Also, after a party has agreed to
arbitrate, the party cannot unilaterally withdraw from the arbitration process without risking
an adverse decision on substantive issues.

Question 31

What is Expedited arbitration?

Answer 31

Expedited arbitration is a consensual procedure in which the rendering of a decision by
the arbitrator is accelerated. In the WIPO expedited arbitration model, only one
arbitrator serves. Also, time periods are shortened, and evidentiary hearings are
condensed.

Question 32

What is Mediation followed by arbitration ?

Answer 32

In mediation followed by arbitration (sometimes known as “med-arb”) mediation is
undertaken first. If the dispute is not entirely settled by way of mediation, arbitration
ensues to resolve remaining issues.

Question 33

What is Expert determination?

Answer 33

Expert determination is a consensual procedure in which a technical, scientific or related
business issue between the parties is submitted, by agreement of the parties, to an expert
who makes a determination on the matter referred to it. The determination is binding,
unless the parties agreed otherwise.

Question 34

Which dispute resolution procedures are offered by the Center?

Answer 34

The alternative dispute resolution (ADR) procedures offered by the Center are mediation,
arbitration, expedited arbitration, mediation followed by (expedited) arbitration and expert
determination.
1. Mediation is a non-binding procedure in which a neutral intermediary, the mediator,
assists the parties in reaching a mutually satisfactory settlement of the dispute.
2. Arbitration is a neutral procedure in which the dispute is submitted to one or more
arbitrators who make a binding decision (an “award”) on the dispute.
3. Expedited arbitration is a form of arbitration that is carried out in a short time and at
reduced cost.
4. Mediation followed by (expedited) arbitration is a procedure that combines mediation
and, where the dispute is not settled through the mediation within a period of time agreed
by the parties, (expedited) arbitration.
5. Expert determination is a consensual procedure in which a technical, scientific or
related business issue between the parties is submitted, by agreement of the parties, to an
expert who makes a determination on the matter referred to it. The determination is
binding, unless the parties agreed otherwise.

Question 35

What is Good offices ?

Answer 35

the Center will provide its “good offices” whereby it will endeavor to act as intermediary in convening discussions between the parties to a dispute to submit their dispute to a WIPO DRP.

Question 36

How and with what WIPO Center facilitate the administration of cases?

Answer 36

• assisting parties to select mediators, arbitrators, and experts from the Centre database
• advising on the application of the relevant rules,
• setting the neutral’s fees
• administering the financial aspects of the proceedings,
• coordinating case communications,
  providing free meeting rooms when the proceedings take place in Geneva or arranging meeting rooms when they place elsewhere
• ensuring that procedures are conducted efficiently

Question 37

What is the WIPOs List of Neutrals ?

Answer 37

it is the generalist where contains highly specialized practitioners and experts, covering the entire legal and technical spectrum of intellectual property. 1500 independent WIPO arbitrators and mediators from a hundreds countries.

Question 38

What is Tailor-made procedures?

Answer 38

The Center is involved in the development and implementation of various tailor-made
procedures. Such procedures, which may be based on or be different from arbitration
and mediation, are designed for particular categories of intellectual property disputes. e.g UDRP - (certain abusive practices in the domain name system)

Question 39

List the services provided by the Center

Answer 39

The Center provides the following services:

1. Drafting of contract clauses
2. “Good Offices”
3. Administration of cases
4. WIPO List of Neutrals
5. Tailor-made procedures
6. Conferences and training
7. Publications

Question 40

In the absence of a prior contractual clause which refers future disputes to the WIPO
Rules, can parties submit an existing dispute to WIPO Mediation, WIPO Arbitration
or WIPO Expedited Arbitration?

Answer 40

Yes, for existing disputes, parties may conclude a submission agreement providing for the
referral of the dispute to one of the WIPO dispute resolution procedures. The Center
provides recommended submission agreements (for existing disputes), in addition to
recommended contract clauses (for future disputes). See the Center’s web site at
http://www.wipo.int/amc/en/clauses/index.html.

Question 41

Advantages of Dispute Resolution Procedures Offered by the Center ?

Answer 41

• Cost saving
• Flexibility
• Confidentiality
• Expertise
• Single forum

Question 42

Types of Disputes that May be Submitted to Arbitration or Mediation ?

Answer 42

contractual disputes (e.g. patent licensing
agreements, trademark co-existence agreements, software licences, distribution agreements
for pharmaceutical products and research and development agreements) and noncontractual
disputes (e.g. patent infringement).

Question 43

Can the dispute resolution procedures administered by the Center be used when the
dispute relates to issues other than intellectual property?

Answer 43

The Rules governing the WIPO dispute resolution procedures contain features that are
especially suitable for disputes involving intellectual property, such as licensing
agreements or other forms of transaction relating to patents, trademarks, copyright or
know-how. However, the WIPO procedures can be used for the resolution of any type of
commercial disputes, including those not involving intellectual property.

Question 44

Who May Refer Disputes to the Center?

Answer 44

The dispute resolution procedures and resources of the Center are open to all persons
and entities regardless of national affiliation. A submitting party (or parties) need not be
connected in any way with a Member State or a State that is a party to any treaty or convention administered by WIPO.

Private entities
Individuals, enterprises, and other entities having a recognized legal personality may
submit disputes to the procedures administered by the Center. Also, they may seek the
good offices services of the Center.
States
When a State enters into a contract, it may be a party to a dispute subject to a procedure
administered by the Center if the State has validly expressed its consent in writing to
refer any dispute arising from that contract to the procedure.

Question 45

Can a State be party to a procedure administered by the Center?

Answer 45

The WIPO dispute resolution procedures are open to any person or entity, regardless of
nationality or domicile. Normally, WIPO dispute clauses are included by corporations in
their intellectual property contracts. However, a State may also be a party to a WIPO
arbitration or mediation procedure, if that State has validly expressed its consent in
writing to refer the dispute to such WIPO procedure.

Question 46

Summary of module 1

Answer 46

WIPO provides dispute resolution services through its Arbitration and
Mediation Center.
· The Center administers alternatives to court litigation for the resolution
of commercial disputes between private parties with a focus on
intellectual property.
· The dispute resolution procedures offered by the Center are mediation,
arbitration, expedited arbitration, mediation followed by arbitration,
expert determination and variations on these procedures.
· Parties can draw upon the Center’s list of arbitrators and mediators
specialized in intellectual property.
· Benefits of WIPO arbitration and mediation procedures over court
litigation include: the possibility of resolving multiple disputes in a
single forum, flexibility and confidentiality of the proceedings, the
possibility to appoint an expert neutral and the opportunity for cost
savings.

Question 47

What is the main features of mediation ?

Answer 47

§

Question 48

List the main steps in a WIPO mediation ?

Answer 48

§

Question 49

What is the role of mediation ?

Answer 49

§

Question 50

What is the role of the WIPO AnM Center in a mediation ?

Answer 50

§

Question 51

Is Mediation is consensual ?

Answer 51

so Mediation is process, agreed to by the parties, in which a neutral mediator facilitates communication, negotiation and dispute resolution by the parties themselves.

Question 52

What is the parties process?

Answer 52

• the parties design the process
• choose the mediator
• define the problem
• select the issues
• consider each other’s real interests and needs
• explore and evaluate options
• find a solution to their problem

it is not constrained by pleadings, rigid rules, selected items of evidence, lawyers eloquence or limited forms of relief.

Question 53

is it mediation is a binding processes ?

Answer 53

no it is not. the mediator cannot impose a solution on the parties. the only binding aspect consists in the terms and conditions of the ultimate settlement agreement. The settlement agreement is as binding as any other contract.

Question 54

Who is the participants in the process of the mediation ?

Answer 54

mediation is the parties process, all parties participate - not merely their lawyers.

individual parties and senior representatives of organizations who are parties participate. e.g: insurers, indemnities, principal investors, controlling shareholders, principal lenders, licensors, principal vendors and principal customers.

Question 55

What is mediation?

Answer 55

Mediation is a one of the several process in alternative dispute resolution provided by WIPO AnM Centre. In mediation process you have a mediator who helps to solve the issue between the parties through guiding them to find the best solution. Decision of the mediator is not biding but the settlement agreement between parties is equally binding as contract.

Question 56

What is mediation?

Answer 56

Mediation is a non-binding procedure in which a neutral intermediary, the mediator, assists
the parties in reaching a settlement of the dispute. This means that, even though parties have
agreed to submit a dispute to mediation, they are not obliged to continue with the mediation
process after the first meeting. The non-binding nature of mediation means also that a
decision will not be imposed on the parties. In order for any settlement to be concluded, the
parties must voluntarily agree to accept it. By comparison to other more formal dispute
resolution procedures, mediation offers parties the option to reach an interest-based settlement
that will help to preserve future relationships.

Question 57

Who should participate in the mediation? Should the business representatives of the
parties attend the mediation sessions? If so, why?

Answer 57

of course the mediation is a parties process all relevant players should participate in the mediation. Participation by, in particular, senior business representatives who are authorized
to settle and bind their respective companies, often facilitates reaching a settlement. It is
frequently the person-to-person meetings of business people that are key to the resolution of
difficult issues.

Question 58

What is the benefits of Mediation ?

Answer 58

• Creating value
• Bringing parties together
• Intellectual property disputes
• International disputes

Question 59

How mediation creates a value ?

Answer 59

• jointly control the process and the substantive resolution of their problem
• explicitly address their real interests and needs, not merely their factual and legal positions
• jointly explore creating or repairing various relationships
• deal together with related disagreements and other complexities

Question 60

How mediation bring parties together ?

Answer 60

the proceedings polarize parties to become more like a partners rather than protagonists

Question 61

What kind of disputes arise in mediation practice?

Answer 61

injunctive relief
lost profits
enhanced damages equitably and expeditiously

it is DR procedure of choice

disputes as to licensing, inventor-ship, 
authorship,
ownership, 
technology transfer,
validity, 
enforceability, 
infringement, misappropriation, 
monetary relief and equitable relief.

Question 62

Is mediation an appropriate dispute resolution procedure for all disputes? Identify
disputes for which mediation is particularly appropriate or inappropriate.

Answer 62

Mediation is not a suitable procedure for settling disputes in all cases. Where deliberate,
bad-faith counterfeiting or piracy is involved, mediation, which requires the cooperation of
both sides, is unlikely to be appropriate. By way of further examples, where a party is certain
that it has a clear-cut case, or where the objective of the parties or one of them is to obtain a
neutral opinion on a question of genuine difference, to establish a precedent or to be
vindicated publicly on an issue in dispute, mediation may not be the appropriate procedure.
On the other hand, mediation is an attractive alternative where any of the following are
important priorities of either or both of the parties:
• Minimizing cost-exposure;
• Maintenance of control over the dispute-settlement process;
• Speedy settlement;
• Maintenance of confidentiality concerning the dispute;
• Preservation or development of an underlying business relationship between the parties to
the dispute.
The above benefits are especially evident in cross-border and cross-cultural disputes.

Question 63

What is the two agreeing phases of mediation?

Answer 63

• considering whether mediation is appropriate

- agreeing in writing to mediate

Question 64

Is mediation appropriate?

Answer 64

the logic in solving disputes early, expeditiously and inexpensively ought to help business people consider alternatives to litigation.

Question 65

suspension of running of limitation periods

Answer 65

To the extent permitted by law, this agreement may create a more hospitable atmosphere for negotiating a settlement. from another point an awareness of an imminent lawsuit may fo wonders in concentrating the minds of the parties on settlement.

Question 66

Does the pendency of the mediation process suspend the running of the statute of
limitations in the jurisdiction of your country?

Answer 66

Article 28 of the WIPO Mediation Rules provides that, to the extent permitted by applicable
law, the parties agree that the running of the applicable period for the filing of a formal claim
be suspended during the pendency of the mediation. In certain jurisdictions such suspension
may not be possible under law.

Question 67

is it possible to use Video and telephone conferencing in face to face negotiations?

Answer 67

yes it has been used in successful mediations. telephone conferencing has been used not only in preliminary organizational discussions, but also in substantive negotiating sessions. – for example, with principals
meeting face to face and the mediator participating by telephone, and with all principals and
the mediator participating by telephone.

Question 68

what article 3 and 4 states ? (Request for mediation)

Answer 68

• submit a Request for Mediation to the Center
• send a copy to another party
• to include the particulars regarding the parties and their representatives, a copy of the mediation agreement, and a brief statement of the nature of the dispute.

A party that wishes to propose submitting a dispute to mediation may submit a unilateral
Request for Mediation to the Center under Article 4(a) of the WIPO Mediation Rules

Question 69

Article 5 (Data of commencement)

Answer 69

provides that the
date of commencement of the mediation is the date the Request is received by the
Center.

Question 70

Article 6 (Data of commencement)

Answer 70

provides
that the Center shall inform the parties forthwith of its receipt of the Request and of the date
of commencement.

Question 71

Article 7 (Parties choice and list procedure)

Answer 71

of the WIPO Mediation
Rules provides that, unless the parties have agreed on the mediator or another procedure for
selecting the mediator, the appointment shall take place in accordance with the following
procedure:

• send identical list of candidates to parties.
• shall have the right to delete the name of any candidate
• shall return the market list to the Center

if parties did not accepted the right person. the center will appoint the mediator.

Question 72

Article 7 (Acceptance)

Answer 72

provides, that by accepting the appointment, the mediator undertakes to make sufficient time available to conduct the mediation expeditiously..

Question 73

Article 14 (a)(Promoting settlement)

Answer 73

Provides that the mediator shall promote settlement in any manner that the mediator believes to be appropriate, but shall have no authority to impose a settlement on the parties. Two significant parameters emerge from this provision

Question 74

What is the mediator’s authority?

Answer 74

• the mediator is authorized by the parties to conduct the mediation in any manner which the mediator believes will best promote settlement.
• the mediator is not a decision maker with regard to the substantive issues facing the parties.

the mediator’s principal role is to facilitate settlement discussions between the parties, and resolution by the parties.

Question 75

Article 14 (b)

Answer 75

provides that the mediator may propose other dispute resolution techniques in the event he believes any issue is not susceptible to resolution through mediation.

it is imperative that the parties select
a mediator who is
(i) able to determine whether or not a substantive issue is susceptible to
resolution by mediation; and
(ii) familiar with the many other dispute resolution techniques
from which one or more apposite procedures may be suggested.

sets out three examples of other
techniques that may be suggested:
1. Expert determination;
2. Arbitration; and
3. Last offer arbitration

Question 76

Article 10

Answer 76

provides that the mediation “shall be conducted in the manner agreed by the parties,” and if the parties
have not made such an agreement, the mediator “shall, in accordance with these Rules, determine the manner in
which the mediation shall be conducted.” In practice, parties seldom agree on all specifics as to scheduling,
presentations, issues to be mediated, participants, and the like before retaining a mediator. Even if previously
agreed to, these details are generally worked out with the mediator. Given the fluid nature of the mediation
process, such details are hardly ever cast in stone and often are the subject of continuing negotiation. Thus, in
practice, the mediator has substantial control over the process from the moment he or she is retained until the
mediation ends.

Question 77

Article 19 (ii) Power to terminate

Answer 77

provides that mediator has a power to end the mediation .

Question 78

What is the number of mediators can be applied??

Answer 78

refer to only one mediator, however, circumstances may suggest that two mediators participate in the mediation. It is not unusual for intellectual property and other commercial disputes to entail
more than one substantive subject of material importance. Also, it may be important
to have a mediator who is skilled with respect to the mediation process work with a second
mediator who is skilled in the technology or the business that is the subject of the mediation.
In practice, it is far more typical for only one mediator – a person skilled, at minimum, in the
mediation process – to serve as the neutral who facilitates the parties’ settlement discussions.

Question 79

How is the mediator selected in a WIPO mediation?

Answer 79

Article 7(a) of the WIPO Mediation Rules provides that unless the parties have agreed
themselves on the person of the mediator or on another procedure for appointing the mediator,
the mediator shall be appointed in accordance with the list procedure described in such article.
The Center shall send to each party an identical list of candidates. The list shall normally
comprise the names of at least three candidates in alphabetical order. The list shall include or
be accompanied by a statement of each candidate’s qualifications. If the parties have agreed
on any particular qualifications, the list shall contain the names of candidates that satisfy
those qualifications. Each party shall have the right to delete the name of any candidate or
candidates to whose appointment it objects and shall number any remaining candidates in
order of preference. Each party shall return the marked list to the Center within seven days
after the date on which the list is received by it. Any party failing to return a marked list
within that period of time shall be deemed to have assented to all candidates appearing on the
list. As soon as possible after receipt by it of the lists from the parties, or failing this, after the
expiration of the period of time specified in the previous subparagraph, the Center shall,
taking into account the preferences and objections expressed by the parties, appoint a person
from the list as mediator.
The mediator must enjoy the confidence of both parties and it is crucial, therefore, that both
parties be in full agreement with the appointment of the person proposed as mediator.

Question 80

Summary ?

Answer 80

Mediation is a consensual and non-binding process.
∙ Parties and their lawyers participate in the mediation process.
∙ In mediation, parties cooperate, with the help of a mediator, in finding a mutually
beneficial solution, which might not be available in court proceedings.
∙ The Center makes available clauses to submit to mediation both existing and
future disputes, and assists parties in identifying a mediator.
∙ The mediation process is controlled by the parties.
∙ Either party may cease to participate after a first discussion.
∙ The mediator cannot force the parties to participate in the process, nor can the
mediator render a binding decision. The primary role of the mediator is to
facilitate settlement discussions between the parties.

Question 81

Conducting the Mediation. Article 10 (mediator guidance)

Answer 81

mediation is the parties process. and thus its conduct is subject to agreement of the parties.

Step in the mediation:

1. Preparing for mediation;
2. Commencing the mediation;
3. Appointing the mediator;
4. Initial conference with the mediator and party representatives;
5. Mediation sessions in which ground rules are reviewed, information is gathered,
   issues are identified, interests and needs of the parties are identified and
   explored, options are listed, options are evaluated, impasses are dealt with, and
   an agreement to resolve some or all of the issues or to continue to disagree is
   entered into; and
6. Subsequent communications between the mediator and one or more parties.

Question 82

What are the principal steps in a mediation?

Answer 82

Preparing for mediation

Commencement
(Request for Mediation)

Appointment of the mediator
Initial Contacts between the Mediator and the Parties
 Set up the first meeting
 Agree on preliminary exchange of documents, if any

Mediation sessions
 Agree on ground rules of the process
 Gather information and identify issues
 Explore the interests of the parties
 Develop options for settlement
 Evaluate options

Conclusion

Question 83

Preparation must include understanding, inter alia:

Answer 83

1. The relevant facts (in contrast to assumptions and speculations);
2. The substantive issues between the parties;
3. The real interests and needs of each of the parties;
4. Market, technology and other relevant factors;
5. All likely participants and their modi operandi, including each party’s decisionmaking
   structure and processes;
6. Who, in addition to the formal parties to the dispute, may be a necessary
   participant in order to reach a durable settlement;
7. The results of a rigorous litigation risk analysis;
8. The costs and rewards of alternatives to settlement (e.g. litigation or arbitration),
   including the cost of obtaining, and likelihood of enforcing, any judgment or
   award; and
9. Terms and conditions of an arrangement that might satisfy all the parties

Question 84

What issues should be discussed at the initial conference?

Answer 84

The initial conference deals mainly with organizational matters and typically includes a
discussion on the following issues:
1. Participants;
2. Confidentiality;
3. Schedule for the mediation process;
4. Submissions to be made;
5. Outline of substantive issues to be mediated;
6. Need to understand and explore real interests and needs;
7. Cost arrangements

Question 85

What is the criteria for an appropriate business representative to attend and participate in the mediation?

Answer 85

(i) the
business person must have full authority to settle and bind his or her party; and (ii) the
business person should not have a direct stake in the problem and its outcome, i.e., the
business person should not “own” the problem. In intellectual property disputes, it is often
counterproductive to have the inventor serve as the only business representative of a party, or
the designer of an infringing product, or the marketing person who authorized the selection of
an arguably infringing trademark, or the person accused of misappropriating confidential
information. Those persons may appropriately attend mediation sessions, but the ultimate
decision-making authority should rest in another business representative from their
organization.

Question 86

What is the role of business people during the mediation process?

Answer 86

The business people are the ones who, ultimately, will agree to a settlement and execute a
written agreement, and therefore their participation in a mediation is essential to the success
of the mediation.

Question 87

What is caucuses?

Answer 87

a group of people with shared concerns

Question 88

What are the advantages and disadvantages of caucuses?

Answer 88

Caucuses, i.e., private meetings between the mediator and one party (without the other parties
present), frequently take place in mediation. Caucuses may be used to disclose a party’s
confidential information and also provide the opportunity for a party to discuss an issue with
the mediator more openly. Repeated rounds of private caucuses, with the mediator shuttling
between the parties, may appeal to the parties and may succeed in bringing the parties
together. Caucuses may, however, also engender concern on the part of the parties who are
not caucusing as to what the discussion is about and whether the mediation is being “infected”
by the caucusing party. Most mediators are not adversely affected as a result of private
caucuses, but the non-caucusing parties may perceive the situation differently

Question 89

A mediator’s attempt to resolve an impasse is likely to include reality testing. That is, the
mediator may,

Answer 89

1. Explore options, even those that may initially seem impracticable;
2. Explore the soundness of a party’s position;
3. Inquire as to the cost of settling compared to the cost of litigation or other
   alternatives to settling;
4. Ask the parties to compare the real rewards of litigation with the cost of
   settling;
5. Ask a party to tabulate the pros and cons of other alternatives to settling;
6. Ask a party to consider and explain the party’s best alternative to a
   negotiated settlement;
7. Take a party through a rigorous litigation risk analysis;
8. Explore creating other relationships between the parties, or relationships
   that exist or may exist between affiliates of the parties;
9. Ask each party what it would do if it owned all sides of the dispute;
10. Explore with each party what that party can give up that is of little value to it
    but of large value to another party;
11. Explore with each party a short-term solution to at least some issues,
    followed by further negotiation or continued monitoring of the situation;
12. Propose a solution or express an opinion;
13. Propose that an expert provide an opinion with regard to a dispositive issue
    (see WIPO Mediation Rules, Article 14(b)(i)
    (http://www.wipo.int/amc/en/mediation/rules/#14a));
14. Propose that the mediator or another person serve as arbitrator with respect
    to a deal-breaking issue (see WIPO Mediation Rules, Article 14(b)(iii)
    (http://www.wipo.int/amc/en/mediation/rules/#14a)).

Question 90

What is baseball arbitration?

Answer 90

“Baseball” arbitration is a process that may be used to break an impasse in a mediation where
the disputed issue is typically an amount to be paid by a party. In baseball arbitration, each
party will submit to the mediator ex parte the party’s last and best number. The mediator is
authorized to select only one of the numbers submitted – not a number in between, the
average of the numbers, or some other number the mediator regards as fair. This format tends
to cause the parties’ numbers to converge.

Question 91

Should the mediator evaluate or make suggestions on ways of resolving the dispute, and
if so, at what stage of the process?

Answer 91

A mediator may provide a non-binding evaluation of the dispute, which the parties may then
accept as settlement of the dispute or reject. However, mediator evaluations and suggestions
for resolving disputes are best reserved for later stages of the mediation, after the parties have
developed trust and confidence in the mediator, and after the mediator has become fully
familiar with the parties, their idiosyncrasies, their interests and needs, and the material facts.
The parties’ solution to their problem is more likely to be a durable solution than a solution
tabled early on by the mediator.

Question 92

The end of the game written agreement?

Answer 92

Whatever the putcome of the mediation, the parties should not leave the mediation without some writing, endorsed by the parties, summarizing the situation. the memorandum of understanding should expressly state it is binding on all parties. Also, often as the lawyers prepare more complete
documentation, new issues arise. The mediation is not over until all issues are resolved.

Question 93

At the end of the mediation, the mediator should ensure that the parties execute a
document. What is the purpose of such a document?

Answer 93

Such a document serves to summarize the position of the parties at the end of the mediation.
If at the end of the mediation, the parties have settled their differences, the agreement
executed by the parties will serve to render the settlement binding, and allow the lawyers to
prepare later a more complete agreement. If at the end of the mediation the parties fail to
reach a settlement, the document would serve to record the parties’ understanding that they
disagree on various issues and permit them to reflect on events, to gather further information,
and to consider and explore any newly-surfaced options.

Question 94

Summary

Answer 94

A successful mediation requires careful preparation on the part of all participants.
∙ While parties and their legal representatives participate in the mediation sessions,
the mediator might have to meet with parties’ business or legal representatives
alone.
∙ If impasses arise, the mediator may explore options through “reality testing.”
∙ Whatever the outcome of the mediation, parties should not leave the mediation
without an agreed document summarizing the position.

Question 95

Confidentiality in mediation embraces three distinct concepts:

Answer 95

1. Confidentiality around the entire process.
2. The proprietary information of a party.
3. The so-called settlement privilege.

Question 96

article 15, 16

Answer 96

No recording of any kind shall be made of any meetings of the parties with the mediator.

Parties can be expected to make notes as the mediation progresses. in the end they need to prepare memoranda, outlines or complete documentation of any agreement they reach during the mediation.

Question 97

Are there exceptions to confidentiality?

Answer 97

Articles 15-18 of the WIPO Mediation Rules provide for, inter alia, confidentiality of the
entire mediation process and the proprietary information of a party, and privileged status of
statements made during a mediation.
However, there are exceptions to confidentiality, such as disclosure by party agreement, by
requirement to disclose under law, or the information falling into the public domain through
no fault of any participant. Furthermore, most confidentiality undertakings expire by their
own terms after a stated period of time or upon the occurrence of specific events.

Question 98

Article 17

Answer 98

person involved in the mediation” shall return to the party providing it “any brief,
document or other materials supplied by a party, without retaining a copy thereof.”
Also, any notes “taken by a person concerning the meetings of the parties with the
mediator shall be destroyed on the termination of the mediation.”

Question 99

Article

Answer 99

“Unless otherwise agreed by the parties, the mediator and the parties shall not
introduce as evidence or in any manner whatsoever in any judicial or arbitration
proceeding:
(i) any views expressed or suggestions made by a party with respect to a possible
settlement of the dispute;
(ii) any admissions made by a party in the course of the mediation;
(iii) any proposals made or views expressed by the mediator;
(iv) the fact that a party had or had not indicated willingness to accept any
proposal for settlement made by the mediator or by the other party.”

Question 100

Summary

Answer 100

The entire mediation process is confidential.
∙ Meetings between the mediator and the parties should not be recorded.
∙ Documents should be returned or destroyed.
∙ Statements made during a mediation enjoy settlement privileged status.

Question 101

Why is confidentiality important in mediation?

Answer 101

Confidentiality is important in mediation because, in order to reach a durable settlement,
parties must feel free to discuss their views, interests, needs, risks, rewards and options,
without concern that these would be held against them, especially in any subsequent
proceedings.

Question 102

Article 19 (termination of the Mediation)

Answer 102

There are three circumstances under which a mediation pursuant to those rules may be terminated:

1. The signing of a settlement agreement by the parties “covering any or all of
   the issues in dispute.”
2. The “decision of the mediator if, in the mediator’s judgment, further efforts at
   mediation are unlikely to lead to a resolution of the dispute.”
3. The “written declaration of a party, at any time after a first discussion of the
   parties with the mediator.”

Question 103

How we can to terminate the mediation ?

Answer 103

Settlement agreement
Termination by mediator
Unilateral termination

Question 104

Article 24(c) Failure to pay deposit

Answer 104

if the party fail to pay the required deposit to the Center, the mediation terminates in effect before it begins.

Question 105

Article 22

Answer 105

non-refundable administration fee to be paid

Question 106

A dispute in which the amount at issue is US$ 5 million is referred to WIPO Mediation;
calculate the administration fee.

Answer 106

Paragraph 1 of the Schedule of Fees and Costs annexed to the WIPO Mediation Rules
provides that the amount of the administration fee shall be 0.10% of the value of the
mediation, subject to a maximum administration fee of $10,000.
Therefore if the amount in dispute is US$ 5 million, the administration fee shall be 0.10% of
US$ 5 million, which is US$ 5,000.

Question 107

Article 23

Answer 107

provides for the fees for the mediator. mediator’s hourly rate. the mediator and parties should agree on such rate.

a mediator’s hourly rate may range from US$ 300 to US$ 600, and the per diem
rate may range from US$ 1,500 to US$ 3,500.

Question 108

Who pays? Article 24

Answer 108

provides that the Center may require each party to deposit an equal amount as an advance for the costs of the mediation, including, in particular the estimated fees of the mediator and the other expenses of the mediation.

Question 109

What fees and costs should be considered to determine the amount of the deposit to be
paid by the parties?

Answer 109

In determining the amount of the deposit to be paid by the parties, the following factors
should be considered:
• estimated fees of the mediator (the hourly/daily rate of the mediator is fixed by the Center,
after consultation with the mediator and the parties, taking into account the amount in
dispute, the complexity of the subject matter of the dispute, any other relevant
circumstances of the case, and the experience of the mediator);
• other expenses of the mediation (e.g. interpretation/translation fees, mediator travel costs,
etc.).

Question 110

Summary

Answer 110

∙ A mediation is terminated by a settlement agreement, a termination decision of
the mediator, or a declaration by either party.
∙ The parties pay to the Center a non-refundable administration fee.
∙ The fees of the mediator are fixed by the Center, after consultation with the
mediator and the parties.
∙ The parties must deposit moneys with the Center to cover the costs of the
mediation.

Question 111

Article 26 (liability)

Answer 111

provides : “except in respect of deliberate wrongdoing,” neither the mediator, WIPO, nor the
Center shall be liable to any party for “any act or omission in connection with any
mediation conducted under these Rules.”

Question 112

Discuss relevant criteria for the selection of a suitable mediator.

Answer 112

The following factors should be considered to select a mediator suitable to the dispute:
• What role the parties want the mediator to play: evaluator or facilitator
• Area of intellectual property law
• Technical or business area
• Applicable law, if any
• Nationality of the parties and their representatives
• Language of the proceedings
• Venue of the proceedings
• Amount in dispute

Question 113

What is the role of the Center as administering authority of a mediation?

Answer 113

The Center performs the following functions as administering authority of a mediation:
• Where applicable and useful, it assists the parties to agree on mediation;
• It assists the parties in selecting and appointing the mediator;
• It fixes, in consultation with the parties and the mediator, the fees of the mediator;
• It administers the financial aspects of the mediation;
• Where the mediation takes place in Geneva or in Singapore, it may provide a meeting
room and party retiring rooms; where the mediation takes place elsewhere, it assists the
parties in organizing appropriate meeting rooms;
• It assists the parties in organizing any other support services that may be needed, such as
translation, interpretation or secretarial services.

Question 114

What are the main functions of the WIPO Mediation Rules?

Answer 114

The WIPO Mediation Rules have the following main functions:
• They establish the non-binding nature of the procedure (Articles 14(a) and 19(iii))
• They define the way in which the mediator will be appointed (Article 7)
• They set out the way in which the mediator’s fees will be determined (Article 23)
• They guide the parties as to the way in which the mediation can be commenced and the
process can be established (Articles 3 to 6 and 13)
• They provide the parties with assurances about the confidentiality of the process and the
disclosures made during the process (Articles 15 to 18)
• They determine how the costs of the procedure will be borne by the parties (Article 25)

Question 115

Summary

Answer 115

Except in respect of deliberate wrongdoing, neither the mediator, WIPO nor the
Center are liable in connection with a mediation conducted under the WIPO
Rules.
∙ The Center assists parties to identify potential mediators with the necessary
expertise, deals with financial issues and provides general organizational support.

Question 116

Examples of the Mediation cases

Answer 116

WIPO mediations have involved patent, software/IT, copyright, trademark, domain name,
employment in an intellectual property context, consultancy, and engineering issues. The vast
majority of WIPO mediations were based on contract clauses, with only a few resulting from
submission agreements after the dispute had arisen. WIPO mediations have involved parties
based in different jurisdictions, such as China, France, Germany, Indonesia, Ireland, Israel,
Japan, Malaysia, the Netherlands, Singapore, Spain, Switzerland, the United Kingdom and the
United States of America.

Amounts in dispute have varied between Euro 20,000 to several hundred million USD.

Question 117

Some of the benefits for the parties are that they can:

Answer 117

1. Choose the arbitrator(s);
2. Choose the issues to be arbitrated;
3. Choose the place of the arbitration;
4. Choose the substantive law that will control the merits of the dispute;
5. Choose the procedural rules;
6. Choose the schedule;
7. Choose exhibits, witnesses and other evidence to be adduced including arranging
   for tests and site visits;
8. Choose the form of relief to be awarded;
9. Choose the form of the award; and
10. Agree to facilitate enforcement of the award. In contrast to litigation in national
    courts, these features may afford substantial advantages.

Question 118

What are the principal advantages of arbitration? Which of those advantages apply
especially to intellectual property disputes?

Answer 118

The principal advantages of arbitration are:
 Party autonomy
Because of the private nature of arbitration, parties may exercise greater control over the
way their dispute is resolved. Parties may choose, inter alia, the arbitrator, issues to be
arbitrated, place of arbitration, applicable law, language, form of relief, form of award and
schedule of proceedings.
 Final, enforceable award
Arbitral awards are not normally subject to appeal, and enforcement of awards across
borders is greatly facilitated by the Convention on the Recognition and Enforcement of
Foreign Arbitral Awards (New York Convention), which provides for recognition of
awards on a par with domestic court judgments without review on the merits.
 A single, neutral procedure
Through arbitration, parties can resolve their dispute in a single forum, which may be
neutral to the law, language and institutional culture of parties.
 Expertise
The parties can select arbitrators who have special expertise in the legal, technical or
business area relevant to the resolution of their dispute.
 Confidentiality
In arbitration, the parties can in principle keep the proceedings and any results
confidential.
The following table lists the advantages of using arbitration in light of the common features of intellectual property disputes.

Question 119

What is the common features of Court litigation:

• Internatonal
• Technical
• Urgent
• Require finality
• Confidential/trade secrets and risk to reputation

Answer 119

Court litigation: 
-Internatonal:
  Multiple proceedings under
different laws, with risk of
conflicting results
 Possibility of actual or
perceived home court
advantage of party litigating
in its own country

-Technical:
 Decision maker might not
have relevant expertise

-Urgent
 Procedures often drawn-out
 Injunctive relief available in certain jurisdictions

-Require finality
 Possibility of appeal

-Confidential/trade secrets and risk to reputation
 Public proceedings

Question 120

What is the common features of Arbitration:

Answer 120

International 
 Single proceeding under
the law determined by
parties
 Arbitral procedure and
nationality of arbitrator
can be neutral to law,
language and institutional
culture of parties 

Technical
 Parties can select
arbitrator(s) with relevant
expertise

Urgent 
 Arbitrator(s) and parties
can shorten procedure
 Arbitrators may render
provisional measures,
parties not precluded
from seeking court
injunctions 

Require finality
 Limited appeal option

Confidential/trade secrets
and risk to reputation
 Proceedings and awards
are confidential

Question 121

Is it advisable to include in an arbitration clause details as to the identity of the
arbitrator(s)?

Answer 121

In general, it is not advisable to specify the identity of the arbitrator(s) in a pre-dispute
arbitration clause, as it is difficult to predict, when drafting the clause, the shape and
complexion of potential future disputes. A similar consideration applies to the suitability and
availability of candidates for appointment. The parties can negotiate the details of the
arbitrator(s) to be appointed at the time the arbitration clause is invoked, in light of the
circumstances then relevant.

Question 122

What is the legal relevance of the “place of arbitration”? Must hearings and meetings be
conducted at the place of arbitration?

Answer 122

The “place of arbitration” usually determines the law applicable to the arbitration. For
example, if the place of arbitration is Geneva, the arbitration will be subject to Swiss
arbitration law. Hearings and meetings need not be conducted at the place of arbitration.
Article 38(b) of the WIPO Arbitration Rules provides that the arbitral tribunal may, after
consultation with the parties, conduct hearings at any place that it considers appropriate.

Question 123

Summary

Answer 123

Arbitration is a consensual adjudicative process.
· An arbitral award rendered in a country that is signatory to the New York Convention
may be enforced in any one of the more than 150 signatory countries to the Convention.
· Arbitration is based on an agreement by the parties to refer to arbitration a dispute at the
time when they concluded their contract or after a dispute arises.
· The place of arbitration normally determines the applicable arbitral law controlling the
procedure. Separate laws might apply to the underlying arbitration agreement, the
substance of the dispute and the enforcement of the award.

Question 124

What are the consequences of a party’s failure to pay the administration fee?

Answer 124

In accordance with Article 70(e) of the WIPO Arbitration Rules, if a party fails to pay any
administration fee due, it shall be deemed to have withdrawn its claim or counter-claim.

Question 125

Summary

Answer 125

The date of commencement of the arbitration is the date on which the Center
receives the Request for Arbitration from the Claimant.
· The Answer to the Request for Arbitration must be filed with the Center within
30 days of the Respondent’s receipt of the Request for Arbitration.
· Parties may be represented by persons of their choice.

Question 126

Sole arbitrator

Answer 126

One arbitrator can more sufficient and cost effective. He can be enough experienced and well familiar with issue matter to be arbitrated.

Question 127

Three arbitrators

Answer 127

when the subject complex - three arbitrator is better choice. it of course will be expensive but in return will receive more wise decision.

Question 128

Three arbitrators

Answer 128

when the subject complex - three arbitrator is better choice. it of course will be expensive but in return will receive more wise decision. the decision will cover all relevant issues objectively.

Question 129

Describe the appointment of arbitrators through the list procedure provided for under
the WIPO Arbitration Rules.

Answer 129

The list procedure described in Article 19 of the WIPO Arbitration Rules combines
party-input with efficiency and safeguards against recalcitrance and breakdowns in the
appointment process. The list procedure runs as follows:

The Center sends a shortlist of potential candidates to each
party, with detailed profiles setting out their qualifications.&raquo_space;>

Each party may delete names of candidates it objects to and
rank the remaining candidates in the order of preference.&raquo_space;>

The rankings must be returned to the Center within 20 days,
failing which all candidates are deemed acceptable. &raquo_space;>

The Center makes the appointment from the shortlist, taking
into account the preferences and objections expressed by
the parties.&raquo_space;>

If no candidate is acceptable to both
parties, or if no acceptable candidate is
available, the Center makes the
appointment from outside the shortlist.

Question 130

How do the WIPO Arbitration Rules address the impartiality and independence of the
arbitrator(s)?

Answer 130

The WIPO Arbitration Rules reflect the value which the Center places on the professional
integrity of arbitrators appointed under the Rules. Article 22 of the Rules (and Article 17 of
the WIPO Expedited Arbitration Rules) provides that each arbitrator, including any
party-appointed arbitrator, is required to be impartial and independent. A prospective
arbitrator must, before accepting appointment, disclose any matter that might give the
appearance of lack of impartiality or independence, and this obligation continues to apply
throughout the course of the arbitration.

Question 131

Who decides on a challenge to an arbitrator under the WIPO Arbitration Rules?

Answer 131

If circumstances exist that give rise to justifiable doubts as to an arbitrator’s impartiality or
independence, either party may challenge the arbitrator at any time during the procedure. To
avoid obstruction, a party which has appointed the arbitrator or concurred in the arbitrator’s
appointment can only bring a challenge for reasons of which the party has become aware after
the appointment (WIPO Arbitration Rules, Article 24). Challenges are decided by the Center.
Where both parties agree on the challenge or the concerned arbitrator withdraws voluntarily,
the latter is replaced without implication that the grounds for the challenge are valid (WIPO
Arbitration Rules, Article 28).

Question 132

Who decides on a challenge to the jurisdiction of the arbitral tribunal under the WIPO
Arbitration Rules?

Answer 132

Article 36 of the WIPO Arbitration Rules provides that the arbitral tribunal decides, either as
a preliminary matter or in the final award, challenges to its own jurisdiction.

Question 133

How does arbitration differ from mediation?

Answer 133

The main differences between mediation and arbitration stem from the fact that, in a
mediation, the parties retain responsibility for and control over the dispute, whereas in an
arbitration, the decision-making power is transferred to the arbitrator(s). In concrete terms,
this means two things principally:
1. In an arbitration, the outcome is determined in accordance with an objective legal
standard. In a mediation, any outcome is determined by the will of the parties, on the basis
of their respective interests.
2. In an arbitration, a party’s task is to convince the arbitral tribunal of its case. In a
mediation, since the outcome must be accepted by both parties and is not decided by the
mediator, a party’s task is to convince, or to negotiate with, the other side.
In view of these differences, mediation is a more informal procedure than arbitration.

Question 134

Summary

Answer 134

The arbitral tribunal shall consist of the number of arbitrators agreed by the
parties.
· If the parties have agreed upon an appointment procedure, that procedure shall be
followed, otherwise, a list procedure will be followed.
· Each arbitrator shall be impartial and independent.
· By accepting appointment, each arbitrator is deemed to make available sufficient
time to enable the arbitration to be conducted expeditiously.

Question 135

Which of the following is not a benefit of arbitration?

Answer 135

§

Question 136

Which of the following is not a benefit of arbitration?

Answer 136

Parties can obtain a precedent setting erga omnes decision

Question 137

Which of the following elements is not generally recommended for inclusion in a WIPO
arbitration clause?

Answer 137

The identity of the arbitrator(s)

Question 138

Which of the following is false about the place of arbitration under the WIPO Arbitration
Rules?

Answer 138

Hearings must be held at the place of arbitration

Question 139

Under the WIPO Arbitration Rules, the Answer to the Request for Arbitration must be filed
with the Center within ( ) of the Respondent’s receipt of the Request for Arbitration.

Answer 139

30 days

Question 140

A party who appointed the arbitrator or concurred in the arbitrator’s appointment may
challenge such arbitrator,

Answer 140

Only for reasons of which it becomes aware after the appointment

Question 141

The enforcement of a foreign arbitral award is frequently

easier than the enforcement of a foreign court judgment.

Answer 141

Yes

Question 142

Under the WIPO Arbitration Rules, for an arbitral award
to be enforceable, the hearings must have been conducted
at the place of arbitration designated by the parties in the
arbitration clause.

Answer 142

no

Question 143

Under the WIPO Arbitration Rules, if the Claimant has
filed a Statement of Claim with the Request for Arbitration,
the Respondent must also file the Statement of Defense
with the Answer to the Request.

Answer 143

no

Question 144

In a WIPO arbitration, parties must be represented by
counsel admitted to legal practice in the jurisdiction of the
place of arbitration.

Answer 144

no

Question 145

In a three-member tribunal, because each of the
co-arbitrators is party-appointed, the presiding arbitrator is
the only member of the tribunal required to be impartial and
independent.

Answer 145

no

Question 146

Under the WIPO Arbitration Rules, in the absence of
agreement otherwise by the parties, the tribunal in principle
shall consist of a sole arbitrator.

Answer 146

Yes

Question 147

A final award rendered by a sole arbitrator may be

appealed to a tribunal consisting of three arbitrators.

Answer 147

NO

Question 148

Pending replacement of an arbitrator, the arbitral
proceedings shall be suspended, unless otherwise agreed
by the parties.

Answer 148

Yes

Question 149

A party may have ex parte communication with a
candidate for sole or presiding arbitrator regarding the
candidate’s views on the merits of the dispute, as long as
the communication takes place before formal appointment
as arbitrator.

Answer 149

no

Question 150

In the absence of party agreement, challenges to an

arbitrator are decided by the Center.

Answer 150

Yes

Question 151

What is article 37 is about?

Answer 151

state that the WIPO AR provides that the tribunal may conduct the arbitration “in such manner as it considers appropriate”

Question 152

When are the Answer to the Request and the Statement of Defense due in a WIPO
arbitration and in a WIPO expedited arbitration?

Answer 152

In a WIPO arbitration, the Answer to the Request must be filed within 30 days from the date
on which the Respondent received the Request for Arbitration from the Claimant (Article 11)
and the Statement of Defense must be filed within 30 days after receipt of the Statement of
Claim or within 30 days after receipt of notification from the Center of the establishment of
the tribunal, whichever occurs later (Article 42).
In a WIPO expedited arbitration, both the Answer to the Request and the Statement of
Defense must be filed within 20 days from the date on which the Respondent receives the
Request for Arbitration and Statement of Claim from the Claimant (Articles 11 and 12).