A Discussion On Arbitration In The Field Of International Dispute Resolution Related To Intellectual Property

Since the entry into 20th century, a number of international disputes related to intellectual property (hereinafter IP) are arising. The regionality of IP poses difficulties for its smooth litigation. Accordingly, alternative dispute resolution (hereinafter ADR) plays a more and more important role in international dispute resolution practice related to IP. Arbitration, as an age-old traditional ADR, is largely applied owning to its advantages. However, there are also some obstacles to arbitration in the field of IP due to its own characteristics. The present thesis conducts systematic analysis and discussion of arbitration in the field of international dispute resolution related to IP, from the aspects of both theory and practice. In view of more and more international IP disputes appearing in China, the present author hopes that the present study may provide some inspirations to the legislation and the practice of arbitration in the field of international dispute resolution related to IP in this country.The thesis comprises 4 chapters, totaling over 34,000 words.Chapter 1 summarizes the basic issues about the international dispute resolution related to IP. Based on a brief introduction to the present situation, and through the analysis of the gradually faded regionality as well as the confirmation of law conflicts in IP, the present study indicates that the discussion on international dispute resolution related to IP is meaningful. The characteristics of IP and the different IP legislation practice in different countries bring to the judicial resolution in this field more difficulties, which leads to the continuous emergence of non- judicial resolution for IP international dispute. Thanks to the superiority of itself, arbitration stands out in the all forms of non- judicial resolutions.Chapter 2 mainly analyzes the theory about arbitration in the field of international dispute resolution related to IP from the angle of jurisprudence. Though the analysis and discussion on significance in the theory and law of arbitrability issues, the present study point out that the leading concern of whether a dispute may be arbitrated or not lies in the protection of public interests, which aims to avoid the harms arbitration on the society. The traditional obstacle to arbitration in the field of international dispute resolution related to IP is the issue of arbitrability. With the development of the arbitration practice in international commerce, a part from the arbitrability about the copyright dispute and contract dispute in IP, the arbitrability about the infringement dispute and the validity dispute in IP, through legislation and practice, have been gradually confirmed in many countries.Chapter 3 focuses on the international arbitration evaluation in the field of IP, which has been carried out by the primary international originations. Such practice has provided not only the practical ground for arbitrability of IP, it also accumulates much beneficial experience for the arbitration in the field of international dispute related to IP. The most special one is the arbitration by WIPO Arbitration and Mediation Center, as well as the ICANN arbitration policy.Chapter 4 concerns the practice and the development of the arbitration to the international dispute in IP in this country. The controversy on the arbitrability of IP dispute focuses on the attitudes towards infringement dispute in IP in this country. By reference to arbitration act and the intellectual property statute, the study views that legislation only supports that the infringement dispute related to interests in IP is arbitrable. In practice, this study tends to find the development track of arbitrability in infringement dispute, through analysis of two typical cases. Finally, the study concludes that, the benign development of the arbitration to the international dispute in IP in this country depends on the confirmation the private property of IP and the arbitrability in non- contract dispute. As a developing nation, there exists the objective requirement of economic development to acknowledge the arbitrability in international dispute related to IP. At the same time, discrete attitude is also needed.