ADR In IPR
Despite the growing number of disputes involving intellectual property rights, little attention has been paid to their resolution outside courts. The high stakes and the need for a definite and legally enforceable decision have probably kept these matters away from attempts to resolve them through alternate methods of dispute resolution.
However, parties have gradually begun to acknowledge the advantages that ADR has, over expensive and drawn-out battles in court. They also recognise that resorting to arbitration or mediation is more suitable to the very nature of the contentious issues in IPR disputes.
The use of ADR to resolve intellectual property conflicts is a subject that “lies at the intersection of two rapidly growing branches of law.”
The vast majority of intellectual property cases, especially cases involving copyright, patent and trademark infringement claims involve exorbitant costs of litigation, irrespective of the actual time required to either settle or for a judgement to be rendered. The majority of these costs arise from the necessity for expert testimony, especially in patent infringement cases. While copyright and trademark cases are less technical, these costs are not entirely done away with, due to the need to present market-driven data when trademarks are infringed, due to the high dependence on consumer perceptions. Not only do these trials drain the cash flows of the litigating company, they also become accounting liabilities due to ever-present possibility of an appeal being filed. Additionally, information, technical and commercial, that both parties may prefer to keep secret becomes publicly available. The confidentiality clauses in agreements for arbitration or mediation greatly aid the ...
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...tion of flexible rules allowing parties to use the most suitable method. Besides traditional arbitration, it also offers expedited arbitration, which includes sole arbitrators (rather than a tribunal of several arbitrators), shorter timetables, and condensed hearings to help facilitate faster and less costly settlements. By 2009, the WIPO Centre had administered over 80 mediations and 110 arbitrations. The 2014 Rules have dealt with a number of problems, and allow parties to call upon an emergency relief procedure prior to the establishment of the Tribunal, and to seek such relief before a judicial authority.
It appears that, we might do well to heed Lincoln’s advice to lawyers – “"Discourage litigation. Persuade your neighbours to compromise whenever you can. Point out to them how the nominal winner is often the real loser - in fees, expenses, and waste of time.”
In conclusion ADR is a tool at the disposal of those involved in legal disputes to resolve their disputes without the all the hassles that entail a trail.
He explains that when a conflict arises, we are less capable to take on the situation and are more likely to hand it off to authorities. He then comes to the conclusion of how they are overlooked, in terms of importance, and that individuals own their conflicts as one would own property. Furthermore, he justifies that these properties are stolen by law, therefore, no longer owned by individuals. Christie urges the need to eliminate ‘professionals’ from the sphere of conflict resolution in order to prevent the theft of conflicts. He explains his perspective of “conflict as property” as not relating to material compensation but rather to the ownership of conflict itself. He then recognizes the effects of victim losing the “property” originally, and puts forth a fix for this process. He introduces a way to remodel the justice system for dealing with conflicts in which the court is victim
In having to agree with either Huber or Abel?s views on litigation I must side with how Huber?s views on the process. I agree that citizens litigate too much on issues which simply to not need to be addressed. There are a great number of cases which are ludicrous and simply can be solved with common sense and are in no need of a judge or juries decision. If some would just act dignified instead of trying to get an easy buck our court system and country would be more successful and a less aggravating process.
The law of contract in many legal systems requires that parties should act in good faith. English law refuses to impose such a general doctrine of good faith in the field of contract law. However, despite not recognizing the principle, English contract law is still influenced by notions of good faith. As Lord Bingham affirmed, the law has developed numerous piecemeal solutions in response to problems of unfairness. This essay will seek to examine the current and future state of good faith in English contract law.
Mediation is typically ordered in types of cases that there is significant emotional ties; creating a potential for hostility, loss of relationships or personal feelings getting in the way of reaching an agreement. Arbitration is the best option for cases where the parties simply cannot come to an agreement and decide to have someone else decide the outcome of the case for them, without the expense and formality of a trial. Arbitration is also useful in highly complex cases where it is necessary to have a highly trained professional come to the
Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser---in fees, expenses, and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough. Never stir up litigation.
Alternative Dispute Resolution or ADR refers to a number of various processes that can be used to resolve legal disputes other than by litigation. Recently, methods of dispute resolution which focus on arbitration, mediation and negotiation as an alternative to adjudication have gained notoriety. This notoriety may have been caused by the public perception that ADR methods are less expensive, more efficient, and more satisfactory than the normal traditional course of litigation. The goals of establishing these processes to resolve disputes as an alternative to more formal legal processes include: 1) to make the regular court system more efficient, less costly and more responsive to the needs of the litigants; 2) to offer alternative methods of dispute resolution in addition to the regular court system; and 3) to provide public education about the available alternatives.
In Krell v. Henry {1903} a plea of frustration succeeded because the court held that the common purpose for which the contact was entered into, could no longer be carried out. But in the same year for similar set of facts, the Court of Appeal decided in Herne Bay v. Hutton [1903] that the contract had not been frustrated because the "common formation of the contract" had not changed. It clearly was a policy decision which shows the reluctance of the courts to provide an escape route for a party for whom the contract ha...
Alternative Dispute Resolution (ADR) involves dispute resolution processes and techniques that fall outside of the government judicial process. There has been moves against ADR in the past by entities of many political parties and their associates, despite this, ADR has gained inclusive acceptance among both the broad community and the legal profession in past years. In fact, many courts now entail some parties to remedy to ADR of some type, usually mediation, before allowing the parties' cases to be tried. The increasing attractiveness of ADR can be clarified by the increasing caseload of traditional courts, the perception that ADR imposes fewer costs than litigation, a preference for confidentiality, and the desire of some parties to obtain larger control over the selection of the individual or individuals who will decide their dispute.
The Civil Procedure Rules recognised in Wales and England imposes a positive duty on the court to encourage parties to use an alternative dispute resolution (ADR) procedures if the court considers it appropriate, from the forgoing it could be inferred that achieving unbiased and objective dispute resolution is no longer the exclusive claim of the adversarial legal process as hitherto claimed by liberal societies. In addition, exact practices of adversarial legal system scarcely exist, since the daily life of court now involves routine departures from its original fundamental ideals. Nonetheless, growing evidence depict that mediated outcomes are more likely to be complied with than court decrees contrary to the position of pro adversarial advocates.
Despite it’s longevity, consideration is not without criticism. Lord Goff observed in White v Jones that: ‘our law of contract is widely seen as deficient in the sense that it is perceived to be hampered by the presence of an unnecessary doctrine of consideration’. Abolition has been urged. Since the publication of the Law Revision Committee’s report in 1937, la...
In the world of commerce, employment, and other social relations, businesses and individuals strive to choose either arbitration or mediation (conciliation). There are situations when parties submit their cases to arbitration bodies for mediation and, vice versa, when mediators are requested to resolve the dispute through the arbitration award. The arbitration and mediation traditions vary from jurisdiction to jurisdiction, but their general ideas still remain similar. However, while a mediator in a single process possesses no entitled authority to render an award, an arbitrator is vested with more procedural powers and can execute a mediator’s functions. Furthermore, despite the flexibility of arbitration and mediation procedures, as well
Because of its intangible nature, and particularly the increase of the digital domain and the internet as a whole, computers and cyber piracy make it easier for people to steal many forms of intellectual property. Due to this major threat, intellectual property rights owners’ should take every single measure to protect their rights. Unless these rights are either sold, exchanged, transferred, or appropriately licensed for use in exchange for a monetary fee, they should be protected at all cost. In order to protect these rights, the federal and states governments have passed numerous laws and statutes to protect intellectual property from misappropriation and infringement. “The source of federal copyright and patent law originates with the Copyright and Patent ...
The courts of England and Wales acknowledge that the above must be something of value, in order to amount to consideration. A valuable consideration in the perspective of the English La...
Mediation is a way to solve a dispute without having to resort to court procedure which sometimes could turned out to be rigid, formal and time consuming especially when it needed a lot of paperwork and the possibility of adjournment which could consume years. Besides that, unlike in court, mediator as a third impartial party did not acted as a judge who decides on the resolution however, the mediator will help the parties to explore the needs and issue which before preventing them from achieving a mutual resolution and settlement. The mediation process gave the authority towards the parties to agree with each other and open up the chance for the parties to meet with a resolution at the end of the mediation session.