DL Arbitration and Mediation Flashcards

Question

What is WIPOs cooperation for development ?

Answer 1

- 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

Answer 2

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

Answer 3

- 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

Answer 4

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

Answer 5

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.

Answer 6

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.

Answer 7

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.

Answer 8

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.

Answer 9

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.

Answer 10

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.

Answer 11

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.

Answer 12

- 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

Answer 13

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.

Answer 14

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)

Answer 15

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

Answer 16

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.

Answer 17

- Cost saving - Flexibility - Confidentiality - Expertise - Single forum

Answer 18

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).

Answer 19

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.

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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

Answer 24

- 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.

Answer 25

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.

Answer 26

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.

Answer 27

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.

Answer 28

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.

Answer 29

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.

Answer 30

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

Answer 31

- 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

Answer 32

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

Answer 33

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. ```

Answer 34

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.

Answer 35

- considering whether mediation is appropriate | - agreeing in writing to mediate

Answer 36

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

Answer 37

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.

Answer 38

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.

Answer 39

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.

Answer 40

- 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

Answer 41

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

Answer 42

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

Answer 43

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.

Answer 44

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

Answer 45

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

Answer 46

- 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.

Answer 47

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 ```

Answer 48

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.

Answer 49

provides that mediator has a power to end the mediation .

Answer 50

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.

Answer 51

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.

Answer 52

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.

Answer 53

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.

Answer 54

``` 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 ```

Answer 55

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

Answer 56

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

Answer 57

(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.

Answer 58

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.

Answer 59

a group of people with shared concerns

Answer 60

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

Answer 61

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)).

Answer 62

“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.

Answer 63

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.

Answer 64

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.

Answer 65

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.

Answer 66

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.

Answer 67

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

Answer 68

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.

Answer 69

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.

Answer 70

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.”

Answer 71

“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.”

Answer 72

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.

Answer 73

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.

Answer 74

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.”

Answer 75

Settlement agreement Termination by mediator Unilateral termination

Answer 76

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

Answer 77

non-refundable administration fee to be paid

Answer 78

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.

Answer 79

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.

Answer 80

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.

Answer 81

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.).

Answer 82

∙ 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.

Answer 83

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.”

Answer 84

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

Answer 85

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.

Answer 86

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)

Answer 87

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.

Answer 88

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.

Answer 89

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.

Answer 90

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.

Answer 91

``` 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

Answer 92

``` 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

Answer 93

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.

Answer 94

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.

Answer 95

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.

Answer 96

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.

Answer 97

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.

Answer 98

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

Answer 99

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

Answer 100

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.

Answer 101

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. >>> Each party may delete names of candidates it objects to and rank the remaining candidates in the order of preference. >>> The rankings must be returned to the Center within 20 days, failing which all candidates are deemed acceptable. >>> The Center makes the appointment from the shortlist, taking into account the preferences and objections expressed by the parties. >>> If no candidate is acceptable to both parties, or if no acceptable candidate is available, the Center makes the appointment from outside the shortlist.

Answer 102

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.

Answer 103

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).

Answer 104

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.

Answer 105

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.

Answer 106

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.

Answer 107

Parties can obtain a precedent setting erga omnes decision

Answer 108

The identity of the arbitrator(s)

Answer 109

Hearings must be held at the place of arbitration

Answer 110

Only for reasons of which it becomes aware after the appointment

Answer 111

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

Answer 112

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).