WIPO Mediation, n o ti u Arbitration, ol s e Expedited Arbitration R e t and Expert u p s Di Determination Rules e v and Clauses ati n r e t Al 2016 446E_Cover_PRINT.indd 2 4460E2_.C11o.v1e5r _ P0R9:I5N0T.indd 1 02.11.15 09:50 nn oo cticti WIPO Mediation, Arbitration, dudu oo Expedited Arbitration and Expert ntrntr II Determination Rules and Clauses Contents Page nn oo Introduction 2 atiati didi ee WIPO Mediation Rules 7 MM WIPO Arbitration Rules 21 WIPO Expedited Arbitration Rules 65 WIPO Expert Determination Rules 107 Schedules of Fees and Costs 125 onon atiati Recommended WIPO Dispute Resolution Clauses 135 bitrbitr ArAr nn oo atiati bitrbitr ArAr d d ee ditdit ee pp xx EE nn oo atiati nn mimi erer etet DD ert ert pp xx EE ss stst oo CC d d nn aa s s ee ee FF ss ee ss uu aa 1 ClCl 446E_Cover_PRINT.indd 2 446E02_.I1N1T._1P5 R I0N9T:5.i0ndd 1 15.01.16 10:32 Introduction: • Expedited Arbitration: an arbitration procedure WIPO ADR Procedures that is carried out in a short time and at a reduced onon cost. (Depending on the parties’ choice, expedit- uctiucti dd Based in Geneva, Switzerland, with a further office in ed arbitration may be preceded by mediation or ntrontro Singapore, the WIPO Arbitration and Mediation Center expert determination.) II (Center) is an independent and impartial internation- al dispute resolution service provider. This brochure • Expert Determination: a procedure in which contains the rules of dispute resolution procedures a technical, scientific or related business issue administered by the Center, namely, the WIPO Mediation between the parties is submitted to one or more nn Rules, the WIPO Arbitration Rules, the WIPO Expedited experts who make a determination on the matter. atioatio Arbitration Rules, and the WIPO Expert Determination The determination is binding, unless the parties ediedi MM Rules.1 The Center offers clauses, rules and neutrals have agreed otherwise. (Depending on the parties’ for the following alternative dispute resolution (ADR) choice, expert determination may be preceded by procedures: mediation or followed by (expedited) arbitration.) WIPO Contract Clause/ Developed by leading experts in cross-border dispute Submission Agreement nn oo settlement, and reflecting the Center’s commitment atiati to time and cost efficiency of proceedings conducted bitrbitr under its rules, the WIPO rules are widely recognized ArAr Mediation as particularly appropriate for disputes arising out of nn Expert Determination AErxbpietrdaittieodn Arbitration commercial transactions or relationships involving in- atioatio tellectual property. In addition, they contain provisions bitrbitr on confidentiality and technical and experimental evi- ArAr d d Determination Settlement Award dence that are of special interest to parties to intellectual ditedite property disputes. The rules are available in a number pepe xx of languages. EE • Mediation: an informal procedure in which a neu- nn tral intermediary, the mediator, assists the parties The Center makes available a general overview of its oo atiati in reaching a settlement of the dispute. (Depending caseload as well as sanitized examples of particular nn mimi on the parties’ choice, mediation may be followed, cases at www.wipo.int/amc/en/center/caseload.html. erer etet in the absence of a settlement, by arbitration, ex- DD pedited arbitration or expert determination.) In administering disputes, the Center provides the fol- ert ert pp xx lowing administrative services: EE • Arbitration: a binding procedure in which the dis- pute is submitted to one or more arbitrators who • Assistance to the parties that wish to commence make a final decision on the dispute. (Depending a mediation, arbitration, expedited arbitration or ss on the parties’ choice, arbitration may be preceded expert determination; ostost CC by mediation or expert determination.) d d nn aa • Assistance to the parties in selecting and appoint- s s ee ing the mediator, arbitrator(s) or expert if necessary, FeFe 1 The WIPO Expedited Arbitration Rules consist of the WIPO Arbitration with reference to the Center’s database of more Rules modified in certain respects in order to ensure that the arbitration than 1,500 neutrals globally with expertise in com- can be conducted in a shortened time frame and at reduced cost. An mercial, intellectual property and information and overview of the differences between the two sets of Rules is provided at p. 68-69 of this booklet. communications technology dispute resolution; ss ee ss uu aa 2 3 ClCl 446E_INT_PRINT.indd 2 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 3 15.01.16 10:32 • Guidance regarding the application of the relevant The Center also administers procedures for the resolu- procedural rules; tion of disputes related to the abusive registration and onon use of Internet domain names. uctiucti dd • Liaising between the parties and the arbitral tribu- ntrontro nal, mediator or expert with a view to ensuring op- The Center also assists parties to develop dispute res- II timal communications and procedural efficiency; olution schemes (whether mediation, arbitration, expert determination or another type of procedure, such as the • Making available, at the parties’ option, the WIPO Uniform Domain Name Dispute Resolution Policy) tai- Electronic Case Facility (WIPO ECAF);2 lored to meet their specific commercial circumstances nn or industry characteristics. atioatio • Assisting the parties in organizing any other sup- ediedi MM port services that may be needed, such as trans- Additional information about the Center and its activities lation, interpretation or secretarial services; is available at www.wipo.int/amc. • Fixing the fees of the neutrals, in consultation with parties and the neutrals; nn oo atiati • Administering the financial aspects of the proceed- bitrbitr ings by obtaining a deposit from each party of the ArAr estimated costs and paying out of the deposit the nn fees of the neutrals and any other support services oo atiati or facilities, such as fees for interpreters, where bitrbitr they are required; ArAr d d ee ditdit • Where the proceedings take place at WIPO in pepe xx Geneva, providing a meeting room and party re- EE tiring rooms free of charge; nn oo atiati • Where the proceedings take place outside Geneva, nn mimi assisting the parties in organizing appropriate erer etet meeting rooms and other required facilities; DD ert ert pp xx • Providing such other services or functions as may EE be required to ensure that the WIPO procedures are conducted efficiently and expeditiously. ss stst oo CC d d nn aa s s ee ee FF 2 More information on this service is available at www.wipo.int/amc/en/ecaf/index.html. ss ee ss uu aa 4 5 ClCl 446E_INT_PRINT.indd 4 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 5 15.01.16 10:32 WIPO Mediation Rules (Effective from January 1, 2016) Contents Articles Abbreviated Expressions 1 nn oo Scope of Application of Rules 2 atiati didi ee Commencement of the Mediation 3-6 MM Appointment of the Mediator 7-8 Representation of Parties and Participation in Meetings 9 Conduct of the Mediation 10-13 nn oo Role of the Mediator 14 atiati bitrbitr Confidentiality 15-18 ArAr Termination of the Mediation 19-21 nn Administration Fee 22 oo atiati Fees of the Mediator 23 bitrbitr ArAr Deposits 24 d d ee ditdit Costs 25 ee pp xx Exclusion of Liability 26 EE Waiver of Defamation 27 nn oo Suspension of Running of Limitation Period atiati nn under the Statute of Limitations 28 mimi erer etet DD ert ert pp xx EE ss stst oo CC d d nn aa s s ee ee FF ss ee ss uu aa 6 7 ClCl 446E_INT_PRINT.indd 6 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 7 15.01.16 10:32 Abbreviated Expressions (b) The Request for Mediation shall contain or be accompanied by: Article 1 In these Rules: (i) the names, addresses and telephone, e-mail or other communication references of the par- “Mediation Agreement” means an agreement by the ties to the dispute and of the representative parties to submit to mediation all or certain disputes of the party filing the Request for Mediation; which have arisen or which may arise between them; a Mediation Agreement may be in the form of a mediation (ii) a copy of the Mediation Agreement; and nn clause in a contract or in the form of a separate contract; atioatio (iii) a brief statement of the nature of the dispute. ediedi MM “Mediator” includes a sole mediator or all the mediators where more than one is appointed; Article 4 (a) In the absence of a Mediation Agreement, a party “WIPO” means the World Intellectual Property that wishes to propose submitting a dispute to Organization; mediation shall submit a Request for Mediation in nn oo writing to the Center. It shall at the same time send atiati “Center” means the WIPO Arbitration and Mediation a copy of the Request for Mediation to the other bitrbitr Center. party. The Request for Mediation shall include ArAr the particulars set out in Article 3(b)(i) and (iii). The nn Words used in the singular include the plural and vice Center may assist the parties in considering the oo atiati versa, as the context may require. Request for Mediation. bitrbitr ArAr d d (b) Upon request by a party, the Center may appoint ditedite Scope of Application of Rules an external neutral to assist the parties in consider- pepe xx ing the Request for Mediation. The external neutral EE Article 2 may act as mediator in the dispute provided all nn Where a Mediation Agreement provides for mediation parties agree. Articles 15 to 18 shall apply mutatis oo atiati under the WIPO Mediation Rules, these Rules shall mutandis. nn mimi be deemed to form part of that Mediation Agreement. erer etet Unless the parties have agreed otherwise, these Rules Article 5 DD as in effect on the date of the commencement of the The date of the commencement of the mediation shall be ert ert pp xx mediation shall apply. the date on which the Request for Mediation is received EE by the Center. Commencement of the Mediation Article 6 ss The Center shall forthwith inform the parties in writing of ostost CC Article 3 the receipt by it of the Request for Mediation and of the d d nn aa (a) A party to a Mediation Agreement that wishes to date of the commencement of the mediation. s s ee commence a mediation shall submit a Request FeFe for Mediation in writing to the Center. It shall at the same time send a copy of the Request for Mediation to the other party. ss ee ss uu aa 8 9 ClCl 446E_INT_PRINT.indd 8 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 9 15.01.16 10:32 Appointment of the Mediator similarly be authorized to do so if a person is not able or does not wish to accept the Article 7 Center’s invitation to be the mediator, or if (a) Unless the parties have otherwise agreed them- there appear to be other reasons precluding selves on the person of the mediator or on an- that person from being the mediator, and other procedure for appointing the mediator, the there does not remain on the lists a person appointment shall take place in accordance with who is acceptable as mediator to both parties. the following procedure: (b) Notwithstanding the procedure provided in para- nn (i) The Center shall send to each party an iden- graph (a), the Center shall be authorized to other- atioatio tical list of candidates. The list shall normally wise appoint the mediator if it determines in its ediedi MM comprise the names of at least three can- discretion that the procedure described therein is didates in alphabetical order. The list shall not appropriate for the case. include or be accompanied by a statement of each candidate’s qualifications. If the parties (c) The prospective mediator shall, by accepting ap- have agreed on any particular qualifications, pointment, be deemed to have undertaken to make nn oo the list shall contain the names of candidates available sufficient time to enable the mediation to atiati that satisfy those qualifications. be conducted expeditiously. bitrbitr ArAr (ii) Each party shall have the right to delete Article 8 nn the name of any candidate or candidates The mediator shall be neutral, impartial and independent. oo atiati to whose appointment it objects and shall bitrbitr number any remaining candidates in order ArAr d d of preference. Representation of Parties and ditedite Participation in Meetings ee pp xx (iii) Each party shall return the marked list to the EE Center within seven days after the date on Article 9 nn which the list is received by it. Any party fail- (a) The parties may be represented or assisted in their oo atiati ing to return a marked list within that period meetings with the mediator. nn mimi of time shall be deemed to have assented to erer etet all candidates appearing on the list. (b) Immediately after the appointment of the mediator, DD the names and addresses of persons authorized ert ert pp xx (iv) As soon as possible after receipt by it of the to represent a party, and the names and positions EE lists from the parties, or failing this, after the of the persons who will be attending the meetings expiration of the period of time specified in of the parties with the mediator on behalf of that the previous subparagraph, the Center shall, party, shall be communicated by that party to the ss taking into account the preferences and ob- other party, the mediator and the Center. ostost CC jections expressed by the parties, appoint a d d nn aa person from the list as mediator. s s ee Conduct of the Mediation ee FF (v) If the lists which have been returned do not show a person who is acceptable as mediator Article 10 to both parties, the Center shall be authorized The mediation shall be conducted in the manner agreed to appoint the mediator. The Center shall by the parties. If, and to the extent that, the parties ss ee ss uu aa 10 11 ClCl 446E_INT_PRINT.indd 10 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 11 15.01.16 10:32 have not made such agreement, the mediator shall, in Role of the Mediator accordance with these Rules, determine the manner in which the mediation shall be conducted. Article 14 (a) The mediator shall promote the settlement of the Article 11 issues in dispute between the parties in any man- Each party shall cooperate in good faith with the me- ner that the mediator believes to be appropriate, diator to advance the mediation as expeditiously as but shall have no authority to impose a settlement possible. on the parties. nn Article 12 (b) Where the mediator believes that any issues in atioatio The mediator shall be free to meet and to communicate dispute between the parties are not susceptible ediedi MM separately with a party on the clear understanding that to resolution through mediation, the mediator may information given at such meetings and in such com- propose, for the consideration of the parties, pro- munications shall not be disclosed to the other party cedures or means for resolving those issues which without the express authorization of the party giving the mediator considers are most likely, having the information. regard to the circumstances of the dispute and nn oo any business relationship between the parties, to atiati Article 13 lead to the most efficient, least costly and most bitrbitr (a) As soon as possible after being appointed, the productive settlement of those issues. In particular, ArAr mediator shall, in consultation with the parties, the mediator may so propose: nn establish a timetable for the submission by each oo atiati party to the mediator and to the other party of a (i) an expert determination of one or more par- bitrbitr statement summarizing the background of the ticular issues; ArAr d d dispute, the party’s interests and contentions in ditedite relation to the dispute and the present status of (ii) arbitration; pepe xx the dispute, together with such other information EE and materials as the party considers necessary for (iii) the submission of last offers of settlement by nn the purposes of the mediation and, in particular, to each party and, in the absence of a settle- oo atiati enable the issues in dispute to be identified. ment through mediation, arbitration conduct- nn mimi ed on the basis of those last offers pursuant erer etet (b) The mediator may at any time during the mediation to an arbitral procedure in which the mission DD suggest that a party provide such additional infor- of the arbitral tribunal is confined to deter- ert ert pp xx mation or materials as the mediator deems useful. mining which of the last offers shall prevail. EE (c) Any party may at any time submit to the mediator, for consideration by the mediator only, written Confidentiality ss information or materials which it considers to be ostost CC confidential. The mediator shall not, without the Article 15 d d nn aa written authorization of that party, disclose such No recording of any kind shall be made of any meetings s s ee information or materials to the other party. of the parties with the mediator. FeFe Article 16 Each person involved in the mediation, including, in particular, the mediator, the parties and their represen- ss ee ss uu aa 12 13 ClCl 446E_INT_PRINT.indd 12 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 13 15.01.16 10:32 tatives and advisors, any independent experts and any Termination of the Mediation other persons present during the meetings of the parties with the mediator, shall respect the confidentiality of Article 19 the mediation and may not, unless otherwise agreed The mediation shall be terminated: by the parties and the mediator, use or disclose to any outside party any information concerning, or obtained (i) by the signing of a settlement agreement by in the course of, the mediation. Each such person shall the parties covering any or all of the issues sign an appropriate confidentiality undertaking prior to in dispute between the parties; taking part in the mediation. nn (ii) by the decision of the mediator if, in the me- atioatio Article 17 diator’s judgment, further efforts at media- ediedi MM Unless otherwise agreed by the parties, each person tion are unlikely to lead to a resolution of the involved in the mediation shall, on the termination of dispute; or the mediation, return, to the party providing it, any brief, document or other materials supplied by a party, without (iii) by a written declaration of a party at any time retaining any copy thereof. Any notes taken by a person after a first discussion of the parties with the nn oo concerning the meetings of the parties with the mediator mediator. atiati shall be destroyed on the termination of the mediation. bitrbitr Article 20 ArAr Article 18 (a) Upon the termination of the mediation, the medi- nn Unless otherwise agreed by the parties, the mediator ator shall promptly send to the Center a notice in oo atiati and the parties shall not introduce as evidence or in writing that the mediation is terminated and shall bitrbitr any manner whatsoever in any judicial or arbitration indicate the date on which it terminated, whether ArAr d d proceeding: or not the mediation resulted in a settlement of the ditedite dispute and, if so, whether the settlement was full pepe xx (i) any views expressed or suggestions made by or partial. The mediator shall send to the parties EE a party with respect to a possible settlement a copy of the notice so addressed to the Center. nn of the dispute; oo atiati (b) The Center shall keep the said notice of the medi- nn mimi (ii) any admissions made by a party in the course ator confidential and shall not, without the written erer etet of the mediation; authorization of the parties, disclose either the ex- DD istence or the result of the mediation to any person. ert ert pp xx (iii) any proposals made or views expressed by EE the mediator; (c) The Center may, however, include information concerning the mediation in any aggregate statis- (iv) the fact that a party had or had not indicat- tical data that it publishes concerning its activities, ss ed willingness to accept any proposal for provided that such information does not reveal ostost CC settlement made by the mediator or by the the identity of the parties or enable the particular d d nn aa other party. circumstances of the dispute to be identified. s s ee ee FF Article 21 Unless required by a court of law or authorized in writing by the parties, the mediator shall not act in any capacity whatsoever, otherwise than as a mediator, in any pend- ss ee ss uu aa 14 15 ClCl 446E_INT_PRINT.indd 14 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 15 15.01.16 10:32 ing or future proceedings, whether judicial, arbitral or Deposits otherwise, relating to the subject matter of the dispute. Article 24 (a) The Center may, at the time of the appointment Administration Fee of the mediator, require each party to deposit an equal amount as an advance for the costs of the Article 22 mediation, including, in particular, the estimated (a) The Request for Mediation shall be subject to the fees of the mediator and the other expenses of payment to the Center of an administration fee, the the mediation. The amount of the deposit shall be nn amount of which shall be fixed in accordance with determined by the Center. atioatio the Schedule of Fees applicable on the date of the ediedi MM Request for Mediation. (b) The Center may require the parties to make sup- plementary deposits. (b) The administration fee shall not be refundable. (c) If a party fails, within 15 days after a reminder in (c) No action shall be taken by the Center on a writing from the Center, to pay the required deposit, nn oo Request for Mediation until the administration fee the mediation shall be deemed to be terminated. atiati has been paid. The Center shall, by notice in writing, inform the bitrbitr parties and the mediator accordingly and indicate ArAr (d) If a party who has filed a Request for Mediation the date of termination. nn fails, within 15 days after a reminder in writing oo atiati from the Center, to pay the administration fee, it (d) After the termination of the mediation, the Center bitrbitr shall be deemed to have withdrawn its Request shall render an accounting to the parties of any ArAr d d for Mediation. deposits made and return any unexpended bal- ditedite ance to the parties or require the payment of any pepe xx amount owing from the parties. EE Fees of the Mediator nn oo Article 23 Costs natinati mimi (a) The amount and currency of the fees of the media- erer etet tor and the modalities and timing of their payment Article 25 DD shall be fixed by the Center, after consultation with Unless the parties agree otherwise, the administration ert ert pp xx the mediator and the parties. fee, the fees of the mediator and all other expenses of EE the mediation, including, in particular, the required travel (b) The amount of the fees shall, unless the parties and expenses of the mediator and any expenses associated the mediator agree otherwise, be calculated on the with obtaining expert advice, shall be borne in equal ss basis of the hourly or, if applicable, daily indicative shares by the parties. ostost CC rates set out in the Schedule of Fees applicable d d nn aa on the date of the Request for Mediation, taking s s ee into account the amount in dispute, the complexity FeFe of the subject matter of the dispute and any other relevant circumstances of the case. ss ee ss uu aa 16 17 ClCl 446E_INT_PRINT.indd 16 446E1_5I.N01T._1P6R I1N0T:3.i2ndd 17 15.01.16 10:32