For more information contact the: WIPO World Intellectual Property Organization (WIPO) ARBITRATION Arbitration and Mediation Center AND Address: 34, chemin des Colombettes MEDIATION P.O. Box 18 CENTER CH-1211 Geneva 20 Switzerland Telephone: +41 22 338 8247 Fax: +41 22 338 8337 e-mail: [email protected] WIPO Arbitration, Mediation, and or its New York Coordination Office at: Expert Determination Address: Rules and Clauses 2, United Nations Plaza Suite 2525 New York, N.Y. 10017 United States of America Telephone: +1 212 963 6813 Fax: +1 212 963 4801 e-mail: [email protected] Visit the WIPO Arbitration and Mediation Center Website at: http://www.wipo.int/amc and order from the WIPO Electronic Bookshop at: http://www.wipo.int/ebookshop http://www.wipo.int/amc WORLD WIPO Publication N° 446(E) INTELLECTUAL ISBN: 978-92-805-1798-9 PROPERTY January 2009 ORGANIZATION n o cti u d WIPO o ntr ARBITRATION I AND MEDIATION CENTER Contents Page Introduction 2 WIPO Mediation Rules 7 WIPO Arbitration Rules 19 WIPO Expedited Arbitration Rules 59 WIPO Expert Determination Rules 95 WIPO Arbitration and Expedited Arbitration Compared 111 Recommended WIPO Dispute Resolution Clauses 114 Schedules of Fees and Costs 122 1 n o Introduction: WIPO ADR Procedures cti dispute. (Depending on the parties’ choice, u d arbitration may be preceded by mediation or ntro expert determination.) I Based in Geneva, Switzerland and part of the World Intellectual Property Organization (WIPO), the WIPO Expedited Arbitration: an arbitration Arbitration and Mediation Center (Center) is a leading procedure that is carried out in a short time international dispute resolution service provider. This and at a reduced cost. (Depending on brochure contains the rules of dispute resolution the parties’ choice, expedited arbitration procedures administered by the Center, namely, the may be preceded by mediation or expert WIPO Mediation Rules, the WIPO Arbitration Rules, the determination.) WIPO Expedited Arbitration Rules, and the WIPO Expert Determination Rules.1 The Center offers clauses, rules Expert Determination: a procedure in and neutrals for the following alternative dispute which a technical, scientific or related resolution (ADR) procedures: business issue between the parties is submitted to one or more experts who make a determination on the matter. The WIPO Contract Clause/ Submission Agreement determination is binding, unless the parties have agreed otherwise. (Depending on the parties’ choice, expert determination may be Mediation preceded by mediation or followed by (expedited) arbitration.) Expert Determination Expedited Arbitration Arbitration Developed by leading experts in cross-border dispute settlement, these rules are widely recognized Determination Settlement Award as particularly appropriate for disputes arising out of commercial transactions or relationships involving intellectual property. In addition, they contain provisions on confidentiality and technical and experimental Mediation: an informal procedure in which evidence that are of special interest to parties to a neutral intermediary, the mediator, assists intellectual property disputes. The rules are available in the parties in reaching a settlement of the a number of languages. dispute. (Depending on the parties’ choice, mediation may be followed, in the absence The Center makes available a general overview of its of a settlement, by arbitration, expedited caseload as well as sanitized examples of particular cases arbitration or expert determination.) at http://www.wipo.int/amc/en/center/caseload.html. Arbitration: a binding procedure in which In administering disputes, the Center provides the the dispute is submitted to one or more following administrative services: arbitrators who make a final decision on the Assistance to the parties in selecting and appointing the mediator, arbitrator(s) or expert 1 The WIPO Expedited Arbitration Rules consist of the WIPO Arbitration if necessary, with reference to the Center’s Rules modified in certain respects in order to ensure that the database of more than 1000 neutrals from arbitration can be conducted in a shortened time frame and at reduced cost. A table showing the differences between the two sets more than 100 countries with expertise in of Rules is provided at p. 112 of this booklet. 2 3 n o cti commercial, intellectual property and The Center also administers procedures for the u d information and communications technology resolution of disputes related to the abusive registration ntro dispute resolution; and use of Internet domain names. I Guidance regarding the application of the The Center also assists parties to develop dispute relevant procedural rules; resolution schemes (whether mediation, arbitration, expert determination or another type of procedure, such Liaising between the parties and the arbitral as the Uniform Domain Name Dispute Resolution Policy) tribunal, mediator or expert with a view to tailored to meet their specific commercial circumstances ensuring optimal communications and or industry characteristics. procedural efficiency; Additional information about the Center and its Assisting the parties in organizing any other activities is available at http://www.wipo.int/amc. The support services that may be needed, such as Center has published guides to different dispute translation, interpretation or secretarial resolution procedures (e.g., mediation, arbitration, services; domain name disputes), which may be obtained in hard copy by contacting the Center or which may be Fixing the fees of the neutrals, in consultation downloaded from the Center’s website. with parties and the neutrals; Administering the financial aspects of the proceedings by obtaining a deposit from each party of the estimated costs and paying out of the deposit the fees of the neutrals and any other support services or facilities, such as fees for interpreters, where they are required; Where the proceedings take place at WIPO in Geneva, providing a meeting room and party retiring rooms free of charge; Where the proceedings take place outside Geneva, assisting the parties in organizing appropriate meeting rooms and other required facilities; Providing such other services or functions as may be required to ensure that the WIPO procedures are conducted efficiently and expeditiously. 4 5 WIPO MEDIATION RULES (Effective from October 1, 2002) Contents Articles n o Abbreviated Expressions 1 ati di e Scope of Application of Rules 2 M Commencement of the Mediation 3-5 Appointment of the Mediator 6-7 Representation of Parties and Participation in Meetings 8 Conduct of the Mediation 9-12 Role of the Mediator 13 Confidentiality 14-17 Termination of the Mediation 18-20 Administration Fee 21 Fees of the Mediator 22 Deposits 23 Costs 24 Exclusion of Liability 25 Waiver of Defamation 26 Suspension of Running of Limitation Period under the Statute of Limitations 27 6 7 Abbreviated Expressions (b) The Request for Mediation shall contain or be accompanied by: Article 1 In these Rules: (i) the names, addresses and telephone, telefax, e- mail or other communication references of the "Mediation Agreement" means an agreement by the parties to the dispute and of the representative n o parties to submit to mediation all or certain disputes of the party filing the Request for Mediation; ati di which have arisen or which may arise between them; a e M Mediation Agreement may be in the form of a mediation (ii) a copy of the Mediation Agreement; and clause in a contract or in the form of a separate contract; (iii) a brief statement of the nature of the dispute. "Mediator" includes a sole mediator or all the mediators where more than one is appointed; Article 4 The date of the commencement of the mediation shall "WIPO" means the World Intellectual Property be the date on which the Request for Mediation is Organization; received by the Center. "Center" means the WIPO Arbitration and Mediation Article 5 Center, a unit of the International Bureau of WIPO. The Center shall forthwith inform the parties in writing of the receipt by it of the Request for Words used in the singular include the plural and vice Mediation and of the date of the commencement of versa, as the context may require. the mediation. Scope of Application of Rules Appointment of the Mediator Article 2 Article 6 Where a Mediation Agreement provides for mediation (a) Unless the parties have agreed themselves on the under the WIPO Mediation Rules, these Rules shall be person of the mediator or on another procedure for deemed to form part of that Mediation Agreement. appointing the mediator, the mediator shall be Unless the parties have agreed otherwise, these Rules as appointed by the Center after consultation with the in effect on the date of the commencement of the parties. mediation shall apply. (b) The prospective mediator shall, by accepting appointment, be deemed to have undertaken to Commencement of the Mediation make available sufficient time to enable the mediation to be conducted expeditiously. Article 3 (a) A party to a Mediation Agreement that wishes to Article 7 commence a mediation shall submit a Request for The mediator shall be neutral, impartial and Mediation in writing to the Center. It shall at the independent. same time send a copy of the Request for Mediation to the other party. 8 9 Representation of Parties and Participation dispute, the party's interests and contentions in in Meetings relation to the dispute and the present status of the dispute, together with such other information and Article 8 materials as the party considers necessary for the (a) The parties may be represented or assisted in their purposes of the mediation and, in particular, to meetings with the mediator. enable the issues in dispute to be identified. n o ati di (b) Immediately after the appointment of the mediator, (b) The mediator may at any time during the e M the names and addresses of persons authorized to mediation suggest that a party provide such represent a party, and the names and positions of the additional information or materials as the mediator persons who will be attending the meetings of the deems useful. parties with the mediator on behalf of that party, shall be communicated by that party to the other (c) Any party may at any time submit to the mediator, party, the mediator and the Center. for consideration by the mediator only, written information or materials which it considers to be confidential. The mediator shall not, without the Conduct of the Mediation written authorization of that party, disclose such information or materials to the other party. Article 9 The mediation shall be conducted in the manner Role of the Mediator agreed by the parties. If, and to the extent that, the parties have not made such agreement, the mediator shall, in accordance with these Rules, determine the Article 13 manner in which the mediation shall be conducted. (a) The mediator shall promote the settlement of the issues in dispute between the parties in any manner Article 10 that the mediator believes to be appropriate, but Each party shall cooperate in good faith with the shall have no authority to impose a settlement on mediator to advance the mediation as expeditiously as the parties. possible. (b) Where the mediator believes that any issues in Article 11 dispute between the parties are not susceptible to The mediator shall be free to meet and to resolution through mediation, the mediator may communicate separately with a party on the clear propose, for the consideration of the parties, understanding that information given at such meetings procedures or means for resolving those issues which and in such communications shall not be disclosed to the the mediator considers are most likely, having regard other party without the express authorization of the to the circumstances of the dispute and any business party giving the information. relationship between the parties, to lead to the most efficient, least costly and most productive settlement Article 12 of those issues. In particular, the mediator may so (a) As soon as possible after being appointed, the propose: mediator shall, in consultation with the parties, establish a timetable for the submission by each (i) an expert determination of one or more party to the mediator and to the other party of a particular issues; statement summarizing the background of the 10 11 (ii) arbitration; a person concerning the meetings of the parties with the mediator shall be destroyed on the termination of (iii) the submission of last offers of settlement by the mediation. each party and, in the absence of a settlement through mediation, arbitration conducted on the Article 17 basis of those last offers pursuant to an arbitral Unless otherwise agreed by the parties, the n o procedure in which the mission of the arbitral mediator and the parties shall not introduce as ati di tribunal is confined to determining which of the evidence or in any manner whatsoever in any judicial e M last offers shall prevail; or or arbitration proceeding: (iv) arbitration in which the mediator will, with (i) any views expressed or suggestions made by a the express consent of the parties, act as party with respect to a possible settlement of sole arbitrator, it being understood that the the dispute; mediator may, in the arbitral proceedings, take into account information received during (ii) any admissions made by a party in the course of the mediation. the mediation; (iii) any proposals made or views expressed by Confidentiality the mediator; Article 14 (iv) the fact that a party had or had not indicated No recording of any kind shall be made of any willingness to accept any proposal for settlement meetings of the parties with the mediator. made by the mediator or by the other party. Article 15 Termination of the Mediation Each person involved in the mediation, including, in particular, the mediator, the parties and their representatives and advisors, any independent experts Article 18 and any other persons present during the meetings of The mediation shall be terminated: the parties with the mediator, shall respect the confidentiality of the mediation and may not, unless (i) by the signing of a settlement agreement by the otherwise agreed by the parties and the mediator, use or parties covering any or all of the issues in dispute disclose to any outside party any information concerning, between the parties; or obtained in the course of, the mediation. Each such person shall sign an appropriate confidentiality (ii) by the decision of the mediator if, in the undertaking prior to taking part in the mediation. mediator's judgment, further efforts at mediation are unlikely to lead to a resolution of Article 16 the dispute; or Unless otherwise agreed by the parties, each person involved in the mediation shall, on the termination of (iii) by a written declaration of a party at any time the mediation, return, to the party providing it, any after attending the first meeting of the parties brief, document or other materials supplied by a party, with the mediator and before the signing of any without retaining any copy thereof. Any notes taken by settlement agreement. 12 13 Article 19 (d) If a party who has filed a Request for Mediation fails, (a) Upon the termination of the mediation, the mediator within 15 days after a second reminder in writing shall promptly send to the Center a notice in writing from the Center, to pay the administration fee, that the mediation is terminated and shall indicate it shall be deemed to have withdrawn its Request the date on which it terminated, whether or not the for Mediation. mediation resulted in a settlement of the dispute n o and, if so, whether the settlement was full or partial. ati Fees of the Mediator di The mediator shall send to the parties a copy of the e M notice so addressed to the Center. Article 22 (b) The Center shall keep the said notice of the mediator (a) The amount and currency of the fees of the mediator confidential and shall not, without the written and the modalities and timing of their payment shall authorization of the parties, disclose either the be fixed by the Center, after consultation with the existence or the result of the mediation to any person. mediator and the parties. (c) The Center may, however, include information (b) The amount of the fees shall, unless the parties and concerning the mediation in any aggregate statistical the mediator agree otherwise, be calculated on the data that it publishes concerning its activities, basis of the hourly or, if applicable, daily indicative provided that such information does not reveal the rates set out in the Schedule of Fees applicable on identity of the parties or enable the particular the date of the Request for Mediation, taking into circumstances of the dispute to be identified. account the amount in dispute, the complexity of the subject matter of the dispute and any other relevant Article 20 circumstances of the case. Unless required by a court of law or authorized in writing by the parties, the mediator shall not act in any Deposits capacity whatsoever, otherwise than as a mediator, in any pending or future proceedings, whether judicial, arbitral or otherwise, relating to the subject matter of the dispute. Article 23 (a) The Center may, at the time of the appointment of the mediator, require each party to deposit an equal Administration Fee amount as an advance for the costs of the mediation, including, in particular, the estimated fees Article 21 of the mediator and the other expenses of the (a) The Request for Mediation shall be subject to the mediation. The amount of the deposit shall be payment to the Center of an administration fee, the determined by the Center. amount of which shall be fixed in accordance with the Schedule of Fees applicable on the date of the (b) The Center may require the parties to make Request for Mediation. supplementary deposits. (b) The administration fee shall not be refundable. (c) If a party fails, within 15 days after a second reminder in writing from the Center, to pay the required (c) No action shall be taken by the Center on a Request deposit, the mediation shall be deemed to be for Mediation until the administration fee has terminated. The Center shall, by notice in writing, been paid. 14 15 Suspension of Running of Limitation Period inform the parties and the mediator accordingly and under the Statute of Limitations indicate the date of termination. (d) After the termination of the mediation, the Center Article 27 shall render an accounting to the parties of any The parties agree that, to the extent permitted by the deposits made and return any unexpended balance applicable law, the running of the limitation period n o to the parties or require the payment of any amount under the Statute of Limitations or an equivalent law ati di owing from the parties. shall be suspended in relation to the dispute that is the e M subject of the mediation from the date of the commencement of the mediation until the date of the Costs termination of the mediation. Article 24 Unless the parties agree otherwise, the administration fee, the fees of the mediator and all other expenses of the mediation, including, in particular, the required travel expenses of the mediator and any expenses associated with obtaining expert advice, shall be borne in equal shares by the parties. Exclusion of Liability Article 25 Except in respect of deliberate wrongdoing, the mediator, WIPO and the Center shall not be liable to any party for any act or omission in connection with any mediation conducted under these Rules. Waiver of Defamation Article 26 The parties and, by accepting appointment, the mediator agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the mediation shall not be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this Article may be pleaded as a bar to any such action. 16 17