Author: Bryan Niblett*
Published: December 1994
Description: The arbitration of disputes relating to intellectual property is a topic which lies at the intersection of two rapidly growing branches of the law. Arbitration is increasingly chosen as a means of objective and final adjudication of commercial disputes, particularly those which reach across national boundaries. Intellectual property is similarly a burgeoning field of law with ramifications that commonly pertain to more than one jurisdiction. The purpose of this paper is to examine some of the major considerations which arise in the conjunction of these two disciplines.
A convenient definition of intellectual property is supplied by Article 2(viii) of the Convention establishing the World Intellectual Property Organisation in 1967, as amended in 1979. This Article provides that “”intellectual property’ shall include the rights relating to:
— literary, artistic and scientific works;
— performances of performing artists, phonograms, and broadcasts;
— inventions in all fields of human endeavour;
— scientific discoveries;
— industrial designs;
— trademarks, service marks, and commercial names and designations;
— protection against unfair competition;
and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”
This definition expresses the essential nature of intellectual property, that it results from intellectual activity and consists of exclusive rights to the products of man’s mind. Note that the definition is extensive and thus able to comprehend new forms of property such as the recently acknowledged rights in the design of semiconductor topographies.
*Chairman, Intellectual Property Specialist Group, The Chartered Institute of Arbitrators, London, United Kingdom.