Worldwide Forum on the Arbitration of Intellectual Property Disputes

OPENING ADDRESS

Arpad Bogsch
Director General
World Intellectual Property Organization
Geneva, Switzerland

Mr. Robert Coulson, President of the American Arbitration Association (AAA), Distinguished Participants, Ladies and Gentlemen,

It is a great pleasure for me to welcome the participants in the Worldwide Forum on the Arbitration of Intellectual Property Disputes to the headquarters of WIPO.

I welcome the representatives of our member States, the observers from various intergovernmental and non-governmental organizations, our invited speakers and moderators, to whom I express WIPO’s gratitude and appreciation for their contribution, and all other participants, among them many outstanding experts in the fields of intellectual property and dispute resolution.

I do so in the name of the World Intellectual Property Organization as co-organizer of this Forum with the American Arbitration Association. As the Director General of an organization that is responsible for the promotion of fair competition, it has given me particular pleasure to see how willingly and helpfully the American Arbitration Association has joined WIPO, a potential – albeit very small – competitor, in the organization of the Forum. That willingness and helpfulness is testimony to the conviction, which comes from a position of strength and confidence in the market, that competition will further the interests of arbitration in general. In this respect, it is similarly pleasing to see among the participants so many distinguished representatives of other arbitration institutions, whose presence here also provides eloquent testimony to the health of the competitive spirit which exists amongst arbitration institutions and which reflects a common desire to maintain and promote the highest standards in arbitration services.

The theme of today’s Forum represents a new venture for WIPO. It is a venture that we are embarking on in the belief that WIPO is uniquely placed to play a positive role in the resolution of international intellectual property disputes, as well as in the belief that the expeditious and economical resolution of such disputes will positively contribute to the furtherance of WIPO’s mission of the promotion of the protection of intellectual property.

WIPO’s position to play a role in the resolution in intellectual property disputes comes, in the first place, from its long and continuous existence. The origins of the Organization go back 111 years to 1883. This stability and continuity is a necessary condition of inspiring confidence in the business sector that the Organization will be able to meet the trust placed in it by those who choose in their contracts to envisage, in the future, the reference of possible disputes to the WIPO Arbitration Center.

The international basis of WIPO provides a further qualification for WIPO to play a key role in resolving international intellectual property disputes. The Organization has 147 member States. Over 60 nationalities are represented on its staff, the International Bureau, who are accustomed to working in the context of linguistic, cultural, legal and institutional diversity. The Organization’s truly international character provides the necessary guarantee of independence and neutrality that is sought by parties of differing national affiliations who seek an impartial and neutral forum in which to resolve a dispute.

The objective of WIPO is, as I mentioned, the promotion of the protection of intellectual property. As the legal means by which the rights to expressions of creativity and inventions are protected, intellectual property has undergone important changes in recent years since scientific and technological developments resulted in new kinds of creative activity and new kinds of exploitation of the fruits of traditional kinds of creative activity.

The changes have been so rapid and so radical that both the legislative and the judicial branches have confronted increasing difficulties in keeping the pace. At the same time, the commercial and industrial sectors have thrust ahead with the exploitation of the new developments in a world of increasingly globalized markets.

It is this context of technical complexity and internationalized exploitation that seems to make useful a specialized, international service for the resolution of intellectual property disputes. The WIPO Arbitration Center will endeavor to provide just that. The type of problems emerging in conflicts over intellectual property rights are at the leading edge not only of technology, but also of law. They frequently involve parties coming from different countries, intellectual property titles accorded by different States and intellectual property exploited in different jurisdictions. These matters are not always ripe for judicial precedent or legislative solution, but the need to find a business solution for the continued and fruitful exploitation of the subject matter of the dispute is often pressing.

Intellectual property, while usually having a statutory base and being subject to a State-administered granting procedure, is nevertheless private property. It is exploited principally by the private sector. WIPO is unique in the United Nations family of organizations in the relations that it maintains with non-governmental organizations representing interested circles in the professional, business and industrial world. The presence of representatives from so many non-governmental organizations at this Forum is but one example of the contribution that non-governmental organizations make to the work of WIPO. The WIPO Arbitration Center is a further example of the development by WIPO of its relations with the non-governmental sector. Its activities will be overseen by the WIPO Arbitration Council, comprised of four persons appointed directly from the non-governmental sector, as well as two persons from the governmental sector. It is a great pleasure for me to welcome today the proposed members of the Arbitration Council.

They are:

• Dr. Marc BLESSING, President, Swiss Arbitration Association (ASA);
• Mr. Michael HOELLERING, General Counsel, American Arbitration Association (AAA);
• Sir Michael KERR, Member, Court of Appeal and Privy Council, United Kingdom, and Honarary President, London Court of International Arbitration (LCIA);
• Professor Zentaro KITAGAWA, Dean, Faculty of Law, Kyoto University, Japan;
• Mr. Jürgen SCHMID-DWERTMANN, Deputy Director General, Ministry of Justice, Germany;
• Professor TANG Houzhi, Vice-Chairman, China International Trade and Economic Arbitration Commission (CIETAC).

The WIPO Arbitration Center will commence operations in October of this year. More details on it will be given in the course of this Forum. Its services have been developed for the private sector, and we look forward to your cooperation in ensuring that those services be of the highest standard and fully responsive to the needs of the private sector.

OPENING ADDRESS

It is a privilege and an honor for me and the American Arbitration Association (AAA) and for my colleague, Michael Hoellering, to be here as a co-sponsor of this program. We are deeply indebted to the Director General, Dr. Bogsch, and also to Francis Gurry, whom we have had the privilege of working closely with in this connection.

As I analyze the people who are attending this Conference, I sense that most of you have a tremendous expertise in intellectual property law and in the world of patents, trademarks, copyrights, trade secrets and all of those important business matters. Most of you, except for the members of the Faculty of the program, are not experts in arbitration and other forms of alternative dispute resolution. It, therefore, seems to me that the next two days will be particularly educational for you, as you find your way into this new field of activity which, as the international market place continues to grow, I believe will be increasingly important to business people who are dealing with intellectual property.

I believe that the World Intellectual Property Organization (WIPO), in its new venture in dispute resolution, will have a very dramatic impact as what it builds becomes used by business people around the world. The fact that WIPO has almost 150 Member States and has ongoing contacts with the many trading associations and non-governmental organizations and intergovernmental organizations that are active in this very complex field of intellectual property means that the WIPO Arbitration Center will be off to a running start and will soon become an extremely important global facility for resolving the sort of disputes that would otherwise end up in court or in various national administrative procedures. There is, however, much work to be done by WIPO and this Worldwide Forum on Arbitration is only the beginning.

The creation of an arbitration center starts with the necessary rules and with the recruiting of a panel of experts in the field of intellectual property. For intellectual property disputes, the neutrals, whether they serve as mediators or arbitrators, must have the same kind of background that the parties will bring to the tribunal, so that the creation of an expert panel is an essential step in this process. Training those mediators and arbitrators will also be important, because, although the mediator and arbitrator may bring wisdom, expertise in the process is also necessary in order to perform the role of mediator and arbitrator. In the next two days, you will hear from some of the international authorities on those subjects and will learn how those processes work.

An additional task will be to educate the lawyers, the business people and the government representatives who will be involved in these private dispute-resolution processes as time goes on. This will mean educating tens of thousands of people around the world who are involved in intellectual property.

Finally, there is the task of revising some national laws, because it is not possible in every country to arbitrate a patent dispute, or a copyright or trademark dispute. It is possible in the United States, but there are many countries where either the laws are unclear or statutory changes or court decisions are necessary to clarify the fact that a private dispute resolution can be used by private enterprises.

Why does the American Arbitration Association, which is a very competitive provider of arbitration and mediation services, support the creation of a totally new system of dispute resolution by WIPO? There is a rather easy answer to that. The AAA was founded in 1926 with the purpose of encouraging the responsible use of negotiation, mediation, conciliation and arbitration and a democratic election process for resolving disputes. Our purpose is to encourage the worldwide community to use these techniques, to understand how they can be used, to avoid going to court and to avoid relying on national courts and national governments to resolve their disputes. It is thus with a very deep sense of purpose that we encourage all of you to take on a role as a neutral or as an advocate or as a participant in this private dispute resolution system that we shall be talking about.

The AAA has always cooperated with other organizations that want to share in the burden of encouraging people to use these processes. I shall give you some examples. Two years ago, we issued International Arbitration Rules which we made available to all other arbitration agencies around the world with the hope that they would simply adopt them or utilize them in a revision, if necessary, of their own rules. We have also been a leader and a participant in the International Federation of Commercial Arbitration Institutions -- in fact, Michael Hoellering, the General Counsel of the AAA, is the President of that body and there are a number of people here who are participating in that program, for example, Mr. B. Vigrass, the Executive Director of the London Court of International Arbitration; Professor Tang Houzhi, who is arriving in Geneva tomorrow morning and who will be with us for all day tomorrow; Dr. Marc Blessing, who is the President of the Swiss Arbitration Association; Mr. Aboul-Enein, who is the Director of the Cairo Regional Center, and many others around the world. There are about 70 members of the International Federation and I think that it is playing a greater role every year in coordinating and harmonizing the use of arbitration and other ADR processes.

In addition, the AAA has a cooperation agreement with about 45 international arbitration agencies in other countries. It is our philosophy that the AAA should not branch out into other countries, but should establish close working relationships with those agencies. We have constantly cooperation without other organizations in carrying out our education program. For example, a few months ago in Florida, we organized jointly a program with the International Court of Arbitration of the ICC and the World Bank, which administers international investment arbitration. In a few months, in Vancouver, we will be cooperating with the Chartered Institute of Arbitrators and a new Mexican/American/Canadian Committee for the encouragement of arbitration in a trilateral education training program for international arbitrators.

In the Asia and Pacific area, we helped to establish a Council of Asia and Pacific Arbitration Agencies, which has carried out training programs and educational programs throughout the Asia and Pacific area. We have also worked with UNCITRAL, another United Nations agency. Representatives of the AAA were involved in designing their model arbitration law, which has been adopted by a number of countries who wish to modernize their law. We also worked on the UNCITRAL Arbitration Rules, which provide model rules for ad hoc arbitration and which you will be hearing more about it at this program. We are a participating member in the International Council of Commercial Arbitration, which is a body of some 40 international experts in the field of international arbitration that is responsible for the publication of the International Arbitration Yearbook, which is the ultimate resource for information on arbitration law and practice.

These types of activities I share with you only as an example of the fact that the AAA wants to cooperate with national governments, intergovernmental agencies, trade associations, arbitration centers, professional arbitrators and mediators and with parties and attorneys who wish to use these systems. They explain also why we are such enthusiastic supporters of the new WIPO Arbitration Center.

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