Alternative dispute resolution (ADR) procedures offer several advantages:
- A single procedure. Through ADR, the parties can agree to resolve in a single procedure adispute involving intellectual property that is protected in a number of different countries,thereby avoiding the expense and complexity of multi-jurisdictional litigation, and the risk ofinconsistent results.
- Party autonomy. Because of its private nature, ADR affords parties the opportunity toexercise greater control over the way their dispute is resolved than would be the case in courtlitigation. In contrast to court litigation, the parties themselves may select the most appropriatedecision-makers for their dispute. In addition, they may choose the applicable law, place andlanguage of the proceedings. Increased party autonomy can also result in a faster process, asparties are free to devise the most efficient procedures for their dispute. This can result inmaterial cost savings.
- Neutrality. ADR can be neutral to the law, language and institutional culture of theparties, thereby avoiding any home court advantage that one of the parties may enjoy in court-basedlitigation, where familiarity with the applicable law and local processes can offer significantstrategic advantages.
- Confidentiality. ADR proceedings are private. Accordingly, the parties can agree to keepthe proceedings and any results confidential. This allows them to focus on the merits of thedispute without concern about its public impact, and may be of special importance where commercialreputations and trade secrets are involved.
- Finality of Awards. Unlike court decisions, which can generally be contested through oneor more rounds of litigation, arbitral awards are not normally subject to appeal.
- Enforceability of Awards. The United Nations Convention for the Recognition andEnforcement of Foreign Arbitral Awards of 1958, known as the New York Convention, generally providesfor the recognition of arbitral awards on par with domestic court judgments without review on themerits. This greatly facilitates the enforcement of awards across borders.
There are, of course, circ*mstances in which court litigation is preferable to ADR. For example,ADR's consensual nature makes it less appropriate if one of the two parties is extremelyuncooperative, which may occur in the context of an extra-contractual infringement dispute. Inaddition, a court judgment will be preferable if, in order to clarify its rights, a party seeks toestablish a public legal precedent rather than an award that is limited to the relationship betweenthe parties. In any event, it is important that potential parties, and their advisors are aware oftheir dispute resolution options in order to be able to choose the procedure that best fits theirneeds.
