Asia-Pacific Journal of IP Management and Innovation


Intellectual property rights (IPRs) are private rights and are only as strong as the means to enforce them. In this light, arbitration has been an increasingly attractive alternative for parties to resolve their disputes due to its efficiency, specialty, confidentiality, and deference to party autonomy. Arbitral awards can likewise be enforced across jurisdictions that are signatories to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. However, the capability of parties to submit IPR matters to arbitration is sometimes limited by the State under its laws. This study will explore possible solutions to the arbitrability of IPR disputes by examining national laws, especially that of ASEAN countries. These countries have adopted diverse approaches to arbitrability under domestic legislation which can be divided into four clusters. The first cluster limits arbitrable disputes to those which are not contrary to public policy. The second cluster limits arbitrable disputes to only commercial disputes. A third cluster limits arbitrable disputes to only those concerning rights in the commercial sector or concerned with economic matters. Finally, one cluster explicitly provides for the arbitrability of IPR disputes. In conclusion, the various treatments of jurisdictions to the arbitrability of IPRs lead to uncertainty and unpredictability of arbitration as an alternative mode of resolving disputes. To settle the issues of arbitrability, the author recommends that IPR disputes be classified as arbitrable or non-arbitrable, depending on their nature. Arbitrable disputes should be the IPR disputes that are commercial in nature, such as licensing & royalty disputes. In contrast, non-arbitrable disputes should be those which involve the sovereign’s prerogative to deny or grant an application for intellectual property protection or those that involve public interest.



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