Introduction
When drafting dispute resolution provisions, parties should keep in mind the maxim ‘an ounce of prevention is worth a pound of cure’. Clear, purposeful and thoughtful drafting helps to ensure the parties’ chosen methods for resolving disputes function as the parties intended, are effective and maximise the likelihood that any disputes will be resolved in a timely and cost-effective manner. Unclear or imprecise drafting risks the opposite because it invites arguments over the scope and operation of provisions and diverts resources away from resolving the merits of the disputes the provisions were supposed to settle.
The same drafting principles that underpin well-drafted dispute resolution clauses in other types of agreements are equally applicable to IP agreements. IP agreements, however, also tend to include several unique factors that parties should also consider, including the fundamental question of whether disputes involving IP rights should be excluded from arbitration altogether. This chapter discusses those factors and how they may influence the ways in which parties approach structuring and drafting dispute resolution provisions in IP agreements.
Drafting considerations
Validity
Frequently described as a creature of contract, arbitration requires that parties consent to resolving their disputes through arbitration. The essential elements of a valid agreement to arbitrate are simple. As reflected in Article II(1) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) and most national laws, the parties must agree to arbitrate and the arbitration agreement must be in writing and must concern a subject matter capable of settlement by arbitration.
In IP agreements, the writing requirement should be easily met because we are speaking of written commercial agreements. The arbitrability requirement, however, can become more complex depending on what the parties have agreed to submit to arbitration, as certain types of IP disputes (e.g., patent invalidity and infringement) may be arbitrable in one country but not another; therefore, the validity of the agreement to arbitrate may turn on the seat, or legal place of arbitration, and the place where enforcement of the award will be sought. Both subjects are discussed further below.
Scope
The scope of the arbitration clause or its ‘charging language’ answers the questions of who is bound to arbitrate and what they agreed to arbitrate. Careful drafting is therefore critical to ensure that the clause clearly reflects the parties’ intent.
Where the parties have agreed that all disputes between them should be resolved through arbitration, there is simple and universally (or almost universally) accepted language that accomplishes this objective. This language is reflected in the model clauses recommended by the leading international arbitration institutions and is usually understood to encompass contractual, tort and statutory claims. Such clauses typically involve some variant of the words: (1) ‘all’ or ‘any’; (2) ‘disputes,’ ‘claims,’ ‘differences’ or ‘controversies’; (3) ‘arising out of and relating to’ or ‘arising under and in connection with’; and (4) ‘the agreement’ or ‘the contract’.
Conventional wisdom usually favours broadly drafted arbitration clauses because, among other things, they help to reduce the risk of threshold arguments over where a given dispute should be resolved, as well as the risk of parallel proceedings in more than one forum. It is for these reasons that the IBA Guidelines for Drafting International Arbitration Clauses (2010) caution against limiting the scope of disputes subject to arbitration ‘[a]bsent special circumstances,’ observing that:
even when drafted carefully, exclusions may not avoid preliminary arguments over whether a given dispute is subject to arbitration. A claim may raise some issues that fall within the scope of the arbitration clause and others that do not. . . . [A] dispute over the ownership or validity of intellectual property rights under a licensing agreement [which had been carved out] may also involve issues of non-payment, breach and so forth, which could give rise to intractable jurisdictional problems in situations where certain disputes have been excluded from arbitration.
This guidance notwithstanding, clauses excluding certain disputes from arbitration are common in IP agreements, particularly for disputes involving validity, patentability, inventorship and ownership of IP rights, and sometimes for scope and infringement. This primarily occurs because parties desire the right to appeal and a more expansive review of the merits, or because they wish to avail themselves of certain procedures more commonly associated with court proceedings (such as a claim construction hearing, a common proceeding in US courts in which a judge determines the scope and meaning of claims made in a patent). Parties may also exclude certain IP disputes out of concern that they may not be arbitrable or will hinder the enforceability of an eventual award. Moreover, even in jurisdictions where these types of disputes may be arbitrated, most limit the binding effect of the award.
However, before reflexively excluding these types of disputes from arbitration, parties should carefully consider whether doing so is necessary and will promote efficient dispute resolution. For instance, depending on the geographic scope of the parties’ IP agreement, disputes concerning validity and infringement may entail litigating before multiple foreign courts (which cannot be consolidated), involving different procedural and substantive treatment of very similar issues before judges with varying degrees of experience. In this situation, arbitration offers the possibility of resolving the disputes in a single proceeding before experienced decision makers, thereby reducing costs and minimising the risks of inconsistent judgments.
The advantage of arbitration over piecemeal litigation in multiple fora was acknowledged by the English Court of Appeal in Nokia v. OnePlus in connection with a multi-jurisdictional patent infringement dispute. The court noted that ‘[t]he only sure way to avoid [issues such as inconsistent decisions and the need to enforce the patent against the same party in multiple jurisdictions] is to use a supranational dispute resolution procedure, and the only supranational procedure currently available is arbitration’.
Even if the award does not bind third parties, an award inter partes may suffice because many IP disputes brought in arbitration are primarily contractual (e.g., relating to royalty obligations, assignment of rights or infringement). It is easy to imagine a scenario in which a confidential award inter partes is preferable because it resolves the dispute at hand while limiting the downstream impact of an adverse award (e.g., a public finding of invalidity).
The difficulty with carve-outs is that even when they are well drafted, it is not always possible to draw the dividing line between disputes involving IP rights and commercial disputes. For example, in Lavvan v. Amyris, the plaintiff simultaneously filed a breach of contract claim in arbitration and an action for trade secret misappropriation and patent infringement before the federal court in the Southern District of New York, invoking a carve-out in the parties’ licensing agreement for disputes ‘with respect to the scope, ownership, validity enforceability, revocation or infringement of any [intellectual property]’. On appeal, the Second Circuit affirmed the lower court’s decision denying the defendant’s motion to compel arbitration of what the defendant claimed were actually contractual claims, observing ‘the fact that these intellectual property claims are intertwined with the contractual issues currently being arbitrated provides no basis on which to require claims exempted from arbitration to be subject to it’. As this case demonstrates, one of the drawbacks to carve-outs is the possibility of piecemeal proceedings.
Another common scenario could involve a licensing agreement where the licensor brings a claim for breach and infringement and, in defence, the licensee denies any breach and argues the patents are invalid. If the parties have excluded infringement and validity from arbitration, they will need to litigate these issues in a parallel court proceeding (and possibly in more than one court proceeding if different jurisdictions are implicated). This risks spawning disputes regarding which claims must be submitted to the courts, which claims must be submitted to the arbitrators, which claims should proceed first, which claims should be stayed and who should decide these questions. Moreover, parallel proceedings are not only inefficient and costly, but they also inject uncertainty and complexity into the dispute resolution process, are more difficult to coordinate and run the risk of inconsistent outcomes.
As illustrated by the US court case Oracle v. Myriad Group, these risks are not theoretical. In that case, Oracle sued Myriad Group in the federal court in the Northern District of California for trademark infringement, copyright infringement, breach of California’s unfair competition law and breach of various licensing agreements for failing to report and pay royalties. In response, Myriad Group moved to compel arbitration in accordance with the terms of one of the licence agreements, which provided that ‘[a]ny dispute arising out of or relating to this License shall be finally settled by arbitration’.
After finding this charging language reached every dispute that touched on the licence, the district court turned to the scope of the exclusion for ‘dispute[s] relating to . . . Intellectual Property Rights.’ It then ruled that the carve-out was unambiguous and excluded all of Oracle’s non-contract claims from arbitration, granting the motion to compel solely with respect to the claim for breach of contract. The decision was later reversed by the Ninth Circuit Court of Appeals on the grounds that the parties had delegated questions of arbitrability to the arbitrators by incorporating the UNCITRAL Arbitration Rules into the arbitration clause; therefore, the question of whether the non-contractual claims were excluded from arbitration should have been decided by the arbitrators in the first instance, not the court, and the case was remanded.
With over two years spent litigating who should decide the scope of the arbitration agreement and the exclusion and how that exclusion should be read, this case serves as a cautionary tale about the downside of carve-out provisions. It also speaks to the need for careful drafting. For instance, parties who decide to include a clause excluding all or some IP disputes from arbitration may also wish to consider expressly stating whether the arbitrators or the courts shall decide the scope and applicability of the agreement to arbitrate, including the exclusions.
In the same vein, while broad charging language such as ‘any dispute or claim which may arise out of or in connection with this Agreement’ should be naturally read to encompass disputes relating to validity and infringement, where the parties have agreed to submit such disputes to arbitration, they should nonetheless consider saying so expressly to reduce the risk of future disputes. Another US court decision, AbbVie v. Novartis, illustrates why. In that case, AbbVie brought an action to declare certain patents invalid, and Novartis moved to compel arbitration. Before the court was AbbVie’s claim that the licence agreement carved out patent validity disputes from arbitration notwithstanding an arbitration clause that stated ‘any dispute regarding this Agreement’ would be resolved through arbitration. AbbVie’s argument rested on another provision of the agreement, which it contended effectively functioned as a carve-out. While the court ultimately rejected AbbVie’s construction, this dispute might have been avoided entirely with clearer drafting.
Seat of the arbitration
The seat of arbitration is the legal place of arbitration. The seat is important because, among other things, it determines the powers of the arbitrators, the supervisory role of the courts during the arbitration and the legal grounds for challenging (or setting aside) the award. From the perspective of the New York Convention, the seat also determines the nationality of the award, which is especially important if recognition and enforcement is sought in a signatory state that requires reciprocity.
The term ‘seat’ is not interchangeable with the term ‘venue’ in some jurisdictions, where it merely connotes the geographical location of the hearings. Moreover, regardless of the seat, most arbitral rules permit the tribunal to convene hearings anywhere in the world, as well as virtually.
Best practice is to agree on the seat in advance and specify that location (usually a city) in the arbitration clause. The parties should choose a seat in an arbitration-friendly jurisdiction, which means the laws and courts of the seat support arbitration. It should also be located in a signatory state to the New York Convention to facilitate enforcement for the reasons discussed above.
In IP agreements, additional considerations should include the extent to which IP disputes are arbitrable at the seat and the availability of effective interim relief. Certain IP disputes are not arbitrable in particular jurisdictions; therefore, parties should consider the types of disputes they may wish to arbitrate and select a seat where those disputes are arbitrable. For example, if the parties want to submit disputes regarding patent invalidity, enforceability and infringement to arbitration, they should consider seating the arbitration in countries such as Belgium, France, Switzerland, the United Kingdom, the United States, Hong Kong or Singapore rather than in countries where arbitrability is excluded (South Africa, Mainland China or, still debated, Germany).
Because access to interim relief can often be critical in IP agreements – for instance, to prevent disclosure of confidential information or use of a misappropriated trade secret – the parties should consider choosing a seat in a jurisdiction where arbitrators have the power to grant interim relief, the courts have a good track record of enforcing interim awards and effective interim relief is otherwise available in the courts.
Finally, if agreement on the seat is not possible (because, for instance, the counterparty is insisting on a seat that is not neutral or is not suitable for other reasons), the parties should, as a last resort, ensure they select an arbitral institution or rules that will designate a seat, taking into account the circumstances of the arbitration.
The law governing the contract and the law governing the arbitration agreement
With most IP agreements, it is possible that multiple laws will apply substantively and to the arbitral proceedings. First, there is the substantive law governing the agreement. This is the law that controls the parties’ rights and obligations under the agreement and, depending on its wording, may extend to non-contractual rights and obligations. Governing law clauses are routinely included in IP agreements to avoid the uncertainty, time and cost of arguing over the applicable law.
Second, there are the laws governing IP rights. These are the laws of the country where the IP is registered or granted, or from which the IP protection emanates (e.g., the validity of a Spanish patent will be governed by Spanish law). Where the IP agreement is governed by the laws of one jurisdiction and the underlying IP is subject to the laws of another, the parties may wish to specify which laws apply to the IP claims (such as validity and infringement) to avoid disputes over the applicable law. In choosing that law, the parties should consider any restrictions imposed by the law at the seat of arbitration or at the expected place of enforcement.
Third, there are the laws governing the agreement to arbitrate. This is the law used to interpret the arbitration clause and determine its scope and validity. Frequently, parties do not specify this law, perhaps because they assume the law governing the agreement to arbitrate will be the same as the substantive law of the agreement. While in many cases that assumption may prove accurate, it is not a given, especially when the substantive governing law differs from the seat of arbitration. Moreover, different jurisdictions take different approaches and many arbitration rules are silent on this topic or defer to the arbitral tribunal’s decision; therefore, to save the time and expense of arguing over which law governs the agreement to arbitrate, parties should consider specifying it in the agreement itself. In most cases, the parties should choose between the laws at the seat of arbitration or the substantive law of the agreement.
Institutional or ad hoc arbitration
Another element that the parties need to consider is whether the arbitration will be conducted under the auspices of an arbitral institution – and, if so, which institution – or if the arbitration will be ad hoc (i.e., not administered by an institution). Both options present their own advantages and disadvantages for parties to IP disputes.
Parties that prefer ad hoc arbitration put a premium on flexibility and the freedom that such an agreement gives the parties to craft bespoke procedures specifically tailored to their IP needs. Often taking the form of dispute resolution schedules or annexes to the IP agreement, these procedures may include, for instance, streamlining pleadings, bringing in discrete elements of civil procedure, fast-tracking to hearings and providing for non-reasoned awards or limiting the arbitrators’ powers to adopting one party’s proposed rulings and relief. Some parties also perceive that ad hoc arbitration may be less expensive than institutional arbitration because it avoids the administrative costs and filing fees associated with the latter.
There are, however, several potential drawbacks to ad hoc arbitration that parties should consider. First, unless the parties have designated an appointing authority, constituting a tribunal can become time-consuming and expensive if one party is unwilling to cooperate or the parties are unable to agree on the third (presiding) arbitrator. In institutional arbitration, there are rules to address this situation, and the institution is on standby and ready to assist. Equally important, most institutional rules expressly require an arbitrator to be impartial and independent, incorporate an affirmative duty of disclosure and establish a procedure for pre-award challenges. In ad hoc arbitration, if the parties do not expressly include these elements, they must rely on the lex arbitri or the law at the place of enforcement after the award has been rendered. Notably, many jurisdictions differ on duties of disclosure and do not permit pre-award challenges to arbitrators in court; instead, the only recourse is to set aside proceedings after the arbitration is over.
Another downside to ad hoc arbitration is the lack of an arbitral institution to help the proceedings run smoothly, born out of decades of experience administering arbitrations. Institutions also play an important role in setting and collecting the arbitrators’ remuneration. In ad hoc arbitration, the parties and the arbitrators must reach an agreement on the arbitrators’ fees and allowable expenses. This can result in potentially uncomfortable discussions over what amounts are reasonable and may leave the parties more vulnerable to abuse.
Institutional rules also fill gaps in arbitral procedure. They have been refined to avoid procedural breakdowns when one party is uncooperative, and they have evolved based on user feedback. For instance, many institutions now have an emergency arbitrator feature, which permits parties to obtain urgent interim relief before constitution of a full tribunal.
If, on balance, the parties opt for ad hoc arbitration, the parties should, at minimum, include procedures (with timing) for appointing the tribunal and designate an appointing authority so they do not waste significant time and expense before the arbitration has really begun. The parties may also wish to choose set rules designed for ad hoc arbitration, such as the UNCITRAL Arbitration Rules or the International Non-Administered Arbitration Rules of the International Institute for Conflict Prevention and Resolution (CPR).
If the parties opt for institutional arbitration, there are many reputable institutions that the parties should consider based on the needs of the arbitration, including the World Intellectual Property Organization (WIPO), the International Chamber of Commerce (ICC), the American Arbitration Association (AAA), the International Centre for Dispute Resolution (ICDR) or CPR, the London Court of International Arbitration, the Swiss Arbitration Centre, the Singapore International Arbitration Centre (SIAC) and the Hong Kong International Arbitration Centre (HKIAC).
In selecting an institution, the parties may wish to consider whether the institution has developed rules with IP disputes in mind. WIPO and the AAA stand out in this regard. WIPO specialises in IP and technology disputes (although the scope of the disputes submitted to WIPO is broader). Its arbitration rules include a number of provisions focused on the taking of evidence and proof in IP disputes (e.g., requiring parties to conduct tests and experiments, ordering site visits and permitting the tribunal to request technical primers, drawings and models). The WIPO Rules also incorporate comprehensive confidentiality protections that go beyond the existence of the arbitration proceedings to include disclosures made during the arbitration and the award. The WIPO Rules further provide a wide and inclusive definition of ‘confidential information’.
The AAA has promulgated the Supplementary Rules for the Resolution of Patent Disputes (the AAA Patent Arbitration Rules), which adopt specialised procedures, including elements more typically featured in US federal patent proceedings. In particular, the AAA Patent Arbitration Rules recommend a framework of sequential steps, beginning with the disclosure of the patent infringement contentions and extending to the disclosure of the preliminary patent invalidity claims, the production of technical documents and the progressive shaping of each party’s ‘claim construction’, culminating in a claim construction hearing before the arbitrators.
Number and qualifications of arbitrators
If the parties have chosen institutional arbitration, the institutional rules will provide a default approach to the number of arbitrators and their method of appointment. The approach differs across institutions, and parties should familiarise themselves with the relevant provisions in the rules they have selected when drafting their arbitration clauses. If the parties have chosen ad hoc arbitration, there may or may not be a default mechanism – this depends on whether the parties have adopted a set of rules and what those rules provide.
In practice, most parties prefer to specify the number of arbitrators and the method of appointment. Parties that choose a sole arbitrator usually do so because they believe the arbitration will be more efficient and less costly. These benefits primarily come from a reduction in arbitrators’ fees (one versus three) and the efficiency gains associated with a single decision maker. For instance, scheduling hearings may be easier because there are fewer potential conflicts. Parties that choose three arbitrators often do so because they see value in being able to select their own arbitrator. They also believe a three-person tribunal enhances the decisional process, with the idea being that three arbitrators are less prone to errors of law or fact. Because there is generally no right of appeal in arbitration, this is important, especially for complex or high-stakes disputes. Both perspectives have merit.
At the clause drafting stage, it can be difficult to predict what kinds of disputes are likely to arise. Consequently, parties may want to adopt a more flexible approach towards the constitution of the tribunal. For instance, they could agree that lower value (e.g., less than US$5 million) or specific types of disputes shall be resolved by a sole arbitrator, while all other disputes shall be decided by a three-member tribunal.
Regardless of whether they opt for a sole arbitrator or a three-member panel (or some combination thereof), the parties should specify how the arbitrators will be appointed. For three-member tribunals, a common method is for each side to select an arbitrator and for the third (or presiding arbitrator) to be selected by agreement of the arbitrators in consultation with the parties or appointed by the institution administering the arbitration. Parties should also consider what happens if one party fails to select its arbitrator in a timely manner or the parties are unable to agree on the sole or presiding arbitrator. If the parties have agreed to institutional arbitration, this prospect is likely addressed in the associated rules, and they do not need to do anything further. For ad hoc arbitrations, parties should consider as a best practice naming a third-party institution to act as the appointing authority; otherwise, they will have to rely on provisions of the lex arbitri, which usually provides for the appointment to be made by a competent national court.
The qualifications of the potential arbitrators should also be considered. For many parties, one of the benefits of arbitration is the ability to choose decision makers who have technical or legal expertise in specific areas. This can be especially important in IP agreements because the disputes are often technically complex. If this is important for a given transaction, parties may wish to consider including criteria or qualifications for the arbitrators in the arbitration clause.
In so doing, parties should be careful not to draw these qualifications too narrowly at the risk of limiting the pool of available candidates or even eliminating arbitrators who otherwise have the right experience, background or knowledge to resolve the dispute. The more specific the qualifications, the higher the risk, particularly in smaller industries where the only arbitrators meeting the criteria may have conflicts or limited availability. In addition, experience may not always be a good thing. For example, based on his or her experience, an arbitrator may hold entrenched views that do not align with a party’s case theory or that otherwise may be difficult to overcome.
Furthermore, the scope of arbitration clauses usually encompasses all disputes arising out of or relating to the agreement, not solely technical disputes. It may be difficult to anticipate what experience and qualifications will ultimately best serve the parties’ interests. Another approach is to provide that the qualifications apply only if certain issues are in dispute. For example, the parties could state that the arbitrators shall have 15 years of experience in patent prosecution if the dispute concerns patent infringement or patent invalidity. For parties considering this approach, one difficulty is how it plays out in practice, as one or more arbitrators may be appointed before the full contours of the dispute are known.
Where parties have decided to include arbitrator qualifications, they should take steps to minimise the risk of delays in the constitution of the tribunal or challenges after the fact based on whether an arbitrator satisfies the criteria. The qualifications should be clearly stated, broad and, to the extent possible, objective. In addition, the arbitration clause should provide a ‘sunset’ date from the nomination of the arbitrator, after which time the arbitrator will be deemed to have met any qualifications to both parties’ satisfaction.
Another option for parties that believe it is important to select arbitrators with technical expertise is to choose institutional rules with a dedicated arbitrator list for IP disputes, such as those of WIPO, JAMS, CPR, SIAC or the HKIAC, and to agree to select arbitrators from that list. The Silicon Valley Arbitration and Mediation Center also maintains a peer-vetted ‘Tech List’ of arbitrators and mediators with expertise in the technology sector and specific industry focuses.
Interim relief and equitable relief
Parties to an IP agreement often have a critical interest in ensuring they can obtain interim and injunctive relief, as it may be instrumental to preventing a breach of a non-disclosure agreement, preserving a trade secret, enjoining patent infringement or removing infringing goods from the market, among other things.
Most arbitration rules address interim relief. They usually empower arbitrators to grant provisional measures, and most rules now provide some form of emergency arbitration. Emergency arbitration permits the parties to obtain such relief on an expedited basis before the constitution of the tribunal. In general terms, it involves the prompt appointment of an arbitrator (within a couple of days of the request) and a decision to be made within a set number of days or weeks. The enforceability of the decision depends on the place where enforcement is sought, as well as the rules governing the procedure.
Because interim relief may not always be effective or available in arbitration, parties usually want to retain the right to go before the national courts of competent jurisdiction. Virtually all institutional rules permit the parties to seek interim relief in the national courts without waiving their right to arbitrate. Parties should keep in mind, however, that some rules take a more restrictive approach after the tribunal is formed. Consequently, if parties wish to ensure they retain the unfettered right to seek interim relief from the courts at any point during the arbitration, they should make this explicit in the arbitration agreement. They may also wish to provide for the non-exclusive consent to jurisdiction in specified courts for interim and provisional remedies.
Parties sometimes seek to carve out equitable relief from the arbitration, particularly for alleged breaches of confidentiality or non-compete provisions. As a rule, carve-out provisions based on remedy should be approached with caution. Parties should balance the perceived benefits of the carve-out against the risk that it will lead to parallel proceedings (and correspondingly to increased costs and delays in resolution of the merits). For example, parties could find themselves simultaneously arbitrating one set of claims where the remedies and relief sought are contractual and litigating a set of related claims where the remedies sought are equitable. These clauses can also be prone to abuse: a party that prefers to avoid arbitration, for example, can use the carve-out to disrupt proceedings or otherwise gain procedural advantage.
Confidentiality
In IP disputes, where highly sensitive commercial information is frequently at issue and even the existence of a dispute can have important commercial consequences, confidentiality may be a paramount concern; however, parties cannot assume that their proceedings will be confidential solely because they have chosen to arbitrate. This is because national laws and courts differ in the degree to which arbitrations will be treated as confidential.
In addition, arbitral institutions take varied approaches to confidentiality. Some rules include an express duty of confidentiality that extends both to the parties and the arbitrators. As noted above, the WIPO Arbitration Rules go further and include the existence of the arbitration, information disclosed during the arbitration and the award. Others, such as the ICDR Arbitration Rules and the ICC Arbitration Rules, go in the opposite direction and provide relatively limited or almost no confidentiality protections.
Consequently, if confidentiality is important to the parties, the best practice is to address it explicitly in the arbitration agreement (especially where the institutional rules are less protective). In so doing, parties should be cognisant that even if they have agreed to keep the arbitration confidential, the award may become public as part of an action to recognise and enforce it (or to set it aside). Accordingly, parties may wish to include language requiring the tribunal to issue a public version of the award that either redacts or does not include information they have previously identified as highly sensitive or confidential. At the same time, parties should also consider what exceptions to confidentiality are required, such as disclosure to comply with a legal obligation, to enforce or to challenge an award or to obtain interim relief.
Conclusion
Arbitration presents a number of advantages for the resolution of IP disputes, including efficiency, neutrality, flexibility, expertise and enforceability. But there is no one-size-fits-all approach and no substitute for thinking ahead and careful drafting of the arbitration agreement. Pathological arbitration clauses may at best cause delays and increase costs, and at worst be ineffective or result in an unenforceable arbitral award.
In most cases, parties will be better positioned if they start with the model clauses of the leading arbitral institutions and consider using rules that have been developed with IP disputes in mind (e.g., the WIPO Arbitration Rules). Parties should also avoid recycling dispute resolution clauses from one agreement to the next and should consider the scope of the arbitration agreement and the need and scope of carve-outs (if any); the seat of the arbitration; the laws governing the contract, the IP rights and the arbitration agreement; the availability of interim relief; and confidentiality.
