The new arbitration rules of the German Institution of Arbitration (Deutsche Institution für Schiedsgerichtsbarkeit – “DIS”) will enter into force on 1 March 2018 (“DIS Rules 2018”).
It is the first revision of the DIS Rules since the current version was adopted in 1998 (“DIS Rules 1998”). The revision process involved nearly 300 persons sitting in three different commissions, but took only 18 months. The DIS Rules 2018 were drafted concurrently in English and German. The result: The DIS maintained and enhanced those civil law elements which were already decisive for the success of the DIS Rules 1998. But it also adopted new rules to reflect the changes and developments of international arbitration practice of the last two decades.
One of the most prominent features – as under the DIS Rules 1998 – of the DIS Rules 2018 is the promotion of early settlements (I.). Further, a newly founded body, the “Arbitration Council” will enhance the transparency and the integrity of the arbitration process (II.). Next, several new rules have been adopted in order to increase the already high efficiency, quality and expeditious character of DIS arbitration proceedings (III.). Lastly, along with the amendments of several institutional rules, the DIS Rules 2018 contain several new rules for multi-party and multi-contract arbitrations (IV.).
In the growing world of new technology, intellectual property (IP) rights are a businesses’ most precious asset. The expansion into emerging markets can offer a multitude of opportunities for a business to market its IP, but this inevitably comes with the threat of infringement of those IP rights and illegal exploitation by others.
HSF is seeing a growth in international arbitration in the sector as companies are continually seeking stronger ways in which to protect and enforce their IP rights on a global scale. Arbitration is increasingly a preferred forum for resolving IP disputes, not only because it offers a private and confidential forum in which to have the dispute heard by an experienced and specialised tribunal, but also because international arbitration offers the best available mechanism for enforcement of decisions across jurisdictions, and reduces the risk of parallel litigation which often comes hand-in-hand with IP disputes.
Given the nature of IP rights, their enforcement and protection requires careful planning. It is recommended that, from the outset, parties consider carefully the arbitration forum in which they might want their disputes resolved and the rules that will govern that process. Although numerous institutional arbitration rules may be used in such disputes, specialist rules like the Arbitration Rules of the World Intellectual Property Organisation (WIPO)¹ provide a forum tailor-made for IP disputes.
The WIPO Center has updated its Mediation Arbitration and Expedited Arbitration Rules, with the new rules taking effect on 1 June 2014. The key changes, including new provisions on joinder, consolidation and the availability of interim relief from an emergency arbitrator, are set out below. Further to the changes, the Center’s Arbitration Rules provide a modern framework for the resolution of IP disputes.
The International Centre for Dispute Resolution (the ICDR), the international division of the American Arbitration Association has released a new version of its Mediation Rules and its Arbitration Rules (the Rules), effective 1 May 2014.
Many of the changes concern issues which have been the focus of many of the recent institutional rule changes – reducing the time and costs involved in resolving a dispute pursuant to the Rules, dealing with multi-party and multi-contract issues, and providing for emergency measures of protection before constitution of the tribunal. However, the revised Rules also contain some novel aspects. In particular:
- The adoption of the “international” approach to document production in arbitration into the Rules themselves and confirmation that depositions, interrogatories and other US “discovery” procedures are “generally not appropriate” in an ICDR arbitration (Article 21);
- Provision for joinder and the appointment of a “consolidation arbitrator” to determine whether multiple arbitrations should be consolidated;
- An express description of the ICDR list procedure at Article 12(6) for the appointment of arbitrators (barring party agreement to an alternative method); and
- Express inclusion of a default position on the question of privilege in international arbitration, adopting a highest standard of protection test (Article 22).
In The Titan Unity (No. 2)  SGHCR 04, an Assistant Registrar refused to grant, amongst others, a party’s application for an order that it be allowed to join arbitration proceedings that were on foot. The Singapore court refused the application on the basis that it should not override the joinder mechanism that parties to that existing arbitration had already agreed to, which required their express consent to be obtained before any other entity could be joined.
In its reasoning, the court considered whether parties to an arbitration agreement had, by their conduct or otherwise, consented to extend the agreement to a non-party and if that non-party had agreed to be bound accordingly.
The decision raises interesting issues relating to the court’s power under the Singapore International Arbitration Act (IAA) and the UNCITRAL Model Law on International Commercial Arbitration (Model Law) to order joinder. It also ultimately affirmed the Singapore courts’ appreciation of the primacy of parties’ consent in arbitration. The decision serves as an important reminder that parties should consider the complex issues created by multi-party and multi-contract scenarios when drafting their agreements to avoid multiplicity of proceedings and ensure that potential disputes could be dealt with in an efficient way in arbitration.