and substantive treatment of similar issues, in different time frames and by decision-makers with varying degrees of experience or relevant technical expertise.
Arbitration provides an attractive alternative which allows the parties to resolve multi-jurisdictional disputes involving the same IP right in a single neutral forum. There are obvious time and cost benefits to this: fewer counsel are involved, disclosure exercises are not repeated, and witnesses have to attend only one hearing to give their evidence. Importantly, there is no risk of conflicting decisions concerning identical parties and essentially identical facts.
Another advantage that speaks for arbitration is party autonomy. The parties can agree on procedural matters to accommodate their needs in ways that may not be permitted under domestic civil procedure rules. For example, the parties can choose the applicable law, the language of the arbitration, the seat of the arbitration, and they can also choose between institutional and ad hoc arbitration. Even while the arbitration is ongoing, there is scope for the parties to shape the proceedings with the oversight of the tribunal, including, for example, by bifurcating the case or adopting an expedited procedure.
Moreover, arbitration is often better suited to obtain finality in the dispute given that awards are only subject to very limited review by domestic courts. There is no worldwide treaty dealing with the enforcement of foreign judgments whereas arbitral awards are enforceable in more than 150 jurisdictions under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention). The New York Convention provides only seven limited grounds for refusing to enforce an award, none of which entail errors of law or fact by the arbitrators relating to the merits.
What is more, arbitral tribunals are also often better suited to awarding appropriate remedies in IP disputes, if compared to state court judges. In arbitrations, the parties are free to select arbitrators with the necessary expertise in the relevant areas of technology or law which enables them to ensure certain quality control (for example, if appropriate, by selecting technical experts as co-arbitrators