The option of resolving IP disputes through arbitration has recently become popular in Southeast Asia and the world. Prominent countries in arbitration are Singapore and Hong Kong. In the near future, Vietnam is also expected to follow more closely this method of dispute settlement, amending and promulgating a more detailed law regulating the settlement of disputes over intellectual property and related fields through arbitration.
In 2019 Singapore’s Parliament passed the Intellectual Property Act to make it clear that disputes involving all forms of intellectual property are admissible in Singapore through arbitration. Hong Kong also passed a similar law, considering many advantages of dispute resolution through arbitration compared to courts.
Among the types of areas that are resolved through arbitration, intellectual property is the most prominent. According to international surveys, at present, the handling of intellectual property complaints and lawsuits still has many shortcomings and difficulties such as costs, knowledge, and lack of professional experience of judges as intellectual property is a relatively specific profession that requires a high level of expertise, not just at the ‘average’ level.
The arbitrator will be able to resolve the above issues. With a single arbitral award, consolidated into a unified procedure, the resolution of intellectual property disputes through arbitration will handle conflicting issues from many awards from many courts in many different jurisdictions.
Other advantages can be mentioned such as flexibility in procedures and information disclosure, allowing stakeholders to keep information private, judgments made away from the community, maintaining the image and reputation of the parties. The confidentiality of the arbitrator is extremely important. Some international arbitration centers such as Singapore’s SIAC have highly strict regulations on confidentiality. All aspects of the arbitration, from all documents and evidence in the case to the very existence of the arbitration, are also kept confidential.
In terms of expertise, international arbitration centers such as the Singapore International Arbitration Center (SIAC) and the Hong Kong International Arbitration Center (HKIAC) have established specialized committees on intellectual property issues, with arbitrators and consultants with extensive knowledge of intellectual property in their country and internationally.
Why is arbitration not more common?
The benefits of arbitration are great as analyzed above, even including other intangible benefits such as increased assurance for the parties involved when having the right to appoint arbitrators who are not of both disputing parties’ nationalities (Although from a neutral point of view, this does not make or increase any real benefits, but it still has the effect of making the parties involved trust and tend to obey the final arbitration award more).
Despite these many benefits, arbitration is not really popular today. The most basic reason is that at present, arbitration is still not coercive and highly enforceable, weaker than decisions from the court.
In intellectual property cases, sometimes the parties will need urgent orders to terminate operations, urgent seizure of goods, etc. that the arbitration cannot provide, only the court can in order to prevent the acts of infringing upon trademarks, patents, designs, etc. continue to affect the rights of rights holders.
Although in some international arbitration jurisdictions such as Singapore, this issue has been resolved by national arbitration laws that enable emergency arbitrators to issue urgent orders under Section 12(6) of the International Arbitration Act, in general, in most countries, similar regulations have not yet been adopted. Intellectual property arbitration in the common ground still lacks coercion and strong deterrence.
In Vietnam, the Vietnam International Arbitration Center (VIAC) was soon established in 1993 on the basis of the amalgamation of the Foreign Trade Arbitration Council (established in 1963) and the Maritime Arbitration Council (founded in 1964).
Over nearly three decades of establishment and development, VIAC has been constantly growing, bringing trust and supporting justice to the domestic and international business community.
However, in the field of intellectual property, disputes resolved through conciliation and commercial arbitration are still relatively limited in volume. According to VIAC’s statistics, this method has only resolved about 11% of the total commercial disputes in Vietnam in recent years.
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