Center Services in ad hoc Arbitrations, and in particular, under the UNCITRAL Arbitration Rules

Ad hoc arbitrations take place when parties have agreed to settle their dispute through arbitration, without referring to the Rules of any Arbitral Institution. Given the complexity of international intellectual property disputes, parties may decide to take advantage of the assistance of an impartial and international Arbitral Institution to administer in a time- and cost-efficient manner such ad hoc arbitral proceedings. Where the Center has been designated by the parties to offer its institutional support (either in the arbitration clause in their contract or in a separate agreement) it will provide the following services:

Option 1: Administration of ad hoc arbitral proceedings, in accordance with the WIPO (Expedited) Arbitration Rules

The Center provides in this regard the following submission agreement:

[Expedited] Arbitration

"We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the WIPO [Expedited] Arbitration Rules:

[brief description of the dispute]

[The arbitral tribunal shall consist of [a sole arbitrator][three arbitrators].]* The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute referred to arbitration shall be decided in accordance with the law of [specify jurisdiction]." (* The WIPO Expedited Arbitration Rules provide that the arbitral tribunal shall consist of a sole arbitrator).

Option 2: Center Services Under the UNCITRAL Arbitration Rules

The UNCITRAL Arbitration Rules have been designed to facilitate the conduct and resolution of ad hoc arbitrations. The UNCITRAL Arbitration Rules were adopted in 1976 (revised in 2010) by UNCITRAL. Neither UNCITRAL nor any other institution plays any role in the administration of such ad hoc arbitrations. Parties can decide however to use the UNCITRAL Arbitration Rules to resolve their disputes and to make special provision to have the benefit of the Center’s institutional support, as Appointing Authority and Administering Authority.

Under these specific services the Center will perform the following functions:

1. Center acts as Appointing Authority

a) Appointment of Arbitrators

(i) Second Arbitrator in Three-Member Tribunals

Article 9(1) of the UNCITRAL Arbitration Rules provides that, if three arbitrators are to be appointed, each party shall appoint one arbitrator. Where one party has appointed an arbitrator, Article 9(2) provides for the appointing authority, at the request of that party, to appoint the second arbitrator in lieu of the other party if the other party fails to do so within the period of time specified in the Rules. The Center will, in such circumstances, appoint the second arbitrator directly, that is, without the use of the list procedure provided for in Article 8(2) of the UNCITRAL Arbitration Rules.

(ii) Sole or Presiding Arbitrator

Article 8(1) of the UNCITRAL Arbitration Rules provides for the appointing authority to appoint the sole arbitrator where the parties themselves do not do so within the period of time specified in those Rules. Article 9(3) of the UNCITRAL Arbitration Rules provides for the appointing authority to appoint the presiding arbitrator where the two other arbitrators do not do so within the period of time specified in those Rules. In appointing a sole or presiding arbitrator, the Center will use the list procedure provided for in Article 8(2) of the UNCITRAL Arbitration Rules unless, in accordance with the same provision, the Center determines in its discretion that the use of the list procedure is not appropriate for the case. In the latter circumstance, the Center will appoint the sole or presiding arbitrator directly. The Center uses a similar list procedure for the appointment of sole or presiding arbitrators in arbitrations administered under the WIPO Arbitration Rules.

(iii) List of WIPO Arbitrators

The primary resource that will be used by the Center in selecting names for inclusion on the identical list of names to be communicated to the parties in accordance with the list procedure, or in making an appointment in its discretion directly, will be the List of WIPO Arbitrators maintained by the Center. That List comprises persons from all parts of the world. Details of the professional qualifications, experience and areas of specialization of each person on the List of WIPO Arbitrators are kept by the Center. Where necessary, however, the Center reserves the right to draw upon sources other than its List of Arbitrators in selecting names or making appointments. In selecting names for the purposes of the list procedure, or in making an appointment directly in its discretion, the Center will examine the particular circumstances of each case in order to ensure that appropriate professional qualifications and experience are possessed either by the persons whose names are included in the identical list communicated to the parties in accordance with the list procedure, or by the arbitrator appointed directly by the Center in its discretion.

b) Challenges of Arbitrators

Article 12(1) of the UNCITRAL Arbitration Rules provides that an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator's impartiality or independence. When such a challenge is contested, article 13(4) of those Rules provides for the decision on the challenge to be made by the appointing authority. A decision must similarly be taken by the appointing authority under Article 14(2) where disagreement exists as to whether an arbitrator has to be replaced. When called upon to make such a decision as appointing authority, the Center will take into account the specific circumstances of each challenge request.

c) Appointment of Substitute Arbitrators

The UNCITRAL Arbitration Rules provide for a substitute arbitrator to be appointed if:
- a challenge of an arbitrator by one party is agreed to by the other party (Article 13(3));
- an arbitrator withdraws from office upon being challenged (Article 13(3));
- a contested challenge of an arbitrator is sustained by the appointing authority (Article 13(4));
- an arbitrator has to be replaced during the course of the arbitral proceedings (Article 14(1));
- an arbitrator fails to act or the performance of the arbitrator’s functions is de jure or de facto impossible (Article 12(3)).

In each case, the UNCITRAL Arbitration Rules provide for the substitute arbitrator to be appointed pursuant to the procedure provided for in those Rules that was applicable to the appointment of the arbitrator being replaced. As appointing authority, the Center will, where required to do so, appoint the substitute arbitrator in the manner described above with respect to the appointment of arbitrators.

d) Assistance in Fixing Fees of Arbitrators

Article 41(2) of the UNCITRAL Arbitration Rules provides that, in fixing its fees, the arbitral tribunal shall take into account, to the extent that it considers appropriate in the circumstances of the case, any schedule of fees that the appointing authority has issued for arbitrators in international cases that it administers. The WIPO (Expedited) Arbitration Rules contain a Schedule of Fees and Costs . In accordance with Article 41(3) of the UNCITRAL Arbitration Rules, the Center will, where a party so requests, determine the tribunal’s fees.

e) Advisory Comments Regarding Deposits

In accordance with Article 43(3) of the UNCITRAL Arbitration Rules, where a party so requests, the arbitral tribunal will consult with the Center with respect to the determination by the tribunal of the amounts of any deposits of costs or supplementary deposits of costs.

2. Center acts as Administering Authority

If in addition to being designated as Appointing Authority, the Center is also designated to act as Administering Authority, it will also provide the following services:

a) Communications

Upon request, all communications and notices from a party to the arbitral tribunal (except at meetings and hearings) may be directed to the Center, which will transmit them to the arbitral tribunal and to the other party. The agreement of the parties that the Center will act as administrator shall constitute consent by the parties that, for the purpose of the application of the UNCITRAL Arbitration Rules, written communications shall be deemed to have been received by the addressee when received by the Center. Communications transmitted by the Center to a party will be sent to the address of that party set out in the Notice of Arbitration or to such other address as that party may notify in writing to the Center. Parties are free to choose WIPO ECAF to facilitate case-related communications.

b) Hearings

Upon request, the Center will liaise with the arbitral tribunal and the parties to establish the date, time and place of meetings and hearings.

c) Hearing Room and Party Rooms

The Center will provide a room for hearings and party retiring rooms for arbitrations conducted in Geneva and will assist in arranging hearing rooms for arbitrations conducted elsewhere. No separate charge will be made for the provision of such rooms at WIPO in Geneva. Where the Center assists in arranging hearing rooms outside Geneva, however, the cost of such rooms must be paid by the parties.

d) Deposits

Upon request, the Center will hold deposits from the parties as advances on the costs of the arbitration, will administer those deposits and will account for them.

The Center provides in this regard recommended contract clauses (for the submission of future disputes under a particular contract) and submission agreements (for existing disputes) as follows:

Contract Clause

"Any dispute, controversy or claim arising out of or relating to this contract, or the breach, or the termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules.

The WIPO Arbitration and Mediation Center shall act [as appointing authority] [and provide administrative services] in accordance with its administrative procedures for cases under the UNCITRAL Arbitration Rules.

The arbitral tribunal shall consist of [three arbitrators][a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction]."

Submission Agreement

"We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the UNCITRAL Arbitration Rules. The WIPO Arbitration and Mediation Center shall act [as appointing authority] [and provide administrative services] in accordance with its administrative procedures for cases under the UNCITRAL Arbitration Rules.

[brief description of the dispute]

The arbitral tribunal shall consist of [three arbitrators] [a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute shall be decided in accordance with the law of [specify jurisdiction]."

For further information about the Center Services in ad hoc Arbitrations, in particular, under the UNCITRAL Arbitration Rules and the applicable fees, please contact the Center as follows:

Contact

General queries: arbiter.mail@wipo.int