The increasing number of IPR disputes across the international trading

platform has rendered it necessary for the international trade regulatory

authorities to develop the necessary dispute settlement processes. The General
Agreement on Tariffs and Trade (GATT), for instance, lays down the legal
framework for the resolution of international trade disputes. Article XXIII of the
Agreement confers upon the member countries the right to file a complaint
against another member country if the other country took actions in the past that
directly resulted in nullification or impairment of the benefits arising out of the
trade agreements signed between them.1 According to Mihai (2013), such
complaints may be in two forms. The first form of complaint deals with a situation,
wherein the actions taken by one of the member countries stand in contradiction
of the obligations stated in the WTO agreements. The second form of complaint
deals with a situation, wherein the actions of one of the member countries results
in undermining of the benefits that may potentially be accrued by another
member country.2
Furthermore, the Dispute Settlement Understanding (DSU) of the WTO
aims to encourage the member countries to resolve the respective disputes
through consultations. If, under the circumstances, the concerned parties are
unable to reach a consensus concerning the terms of dispute resolution, the
complainant holds the right to request the WTO to constitute a panel of experts
for the proceedings to resolve the dispute. 3 The panel, thus constituted by the
WTO, is obligated to evaluate the submissions and arguments of the concerned
parties concerning their compliance with the WTO agreements, after which point,
the panel issues the finding of fact. The implications of the decision-report
presented by the Panel are identical to that of the court-rulings pertaining to the
common law systems.4 One of the most significant features of the IPR dispute
resolutions systems is the fact that if the Panel believes that the actions of the
concerned parties violate the terms of the agreements, the Panel presents
reasonable recommendation(s) concerning the alteration of the parties actions so
as to ensure their compliance with the terms of the agreement. 5
In Bremmers (2010) opinion, the DSU seeks to strengthen the process of
settlement of disputes over the previously operational process that aligned with
the GATT terms and conditions. The first of the two methods is the removal of the
condition, whereby the unanimity in the decision of the Panel is a must for the
decision to be implemented.6 In this regard, it is essential to note that the GATT
principles, the formation of the Panel and/or the subsequent implementation of its
decision may be blocked by any member country, that includes the defendant
country as well. In contrast, according to the DSU, the Panel report is accepted
and implemented automatically unless all the involved parties reject the report
unanimously, in which case, the decision of the panel is rejected in an outright
manner.7 The second method, according to Eidenmller (2013), is that the stages
of the IPR dispute resolution process under DSU is time-bound, which in turn, is
essential to speed up the resolution process. The DSU panel, for instance,
stipulates a time of six months from the day of the initial complaint to present a

1
Trevor Cook and Trevor M Cook and Alejandro I Garcia, International Intellectual
Property Arbitration (Kluwer Law International 2010) 219
2
Mihai G, Arbitration An Alternative Settlement of International Trade Disputes
(2013) 4 SEA 393
3
Venkatesh, Marketing of Information Technology: Concepts, Products, Services
and Intellectual Property Rights (McGraw-Hill Education 2009) 88
4
Ibid 89
5
Trevor Cook and Trevor M Cook and Alejandro I Garcia, International Intellectual
Property Arbitration (Kluwer Law International 2010) 219
6
Ian Bremmer, The End of the Free Market: Who Wins the War Between States
and Corporations? (Penguin 2010) 268
7
World Trade Organisation, Intellectual property: protection and enforcement
(2017) < https://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm7_e.htm>
accessed 15 April 2017
completed report. A period of nine months, however, is provided in the cases of
exceptional nature.8
According to Oliver (2012), the even though the objectives of GATT principles
and DSU under WTO are similar concerning the resolution of IPRs , there are
several elements of the process laid down under DSU. The DSU emphasises on
encouraging the member countries to focus on compliance with the terms of WTO
agreements. The guidelines of DSU further focus on resolution of IPR disputes
without the constitution of specific panels to accomplish the task. Furthermore,
unilateral decisions in the context of IPR dispute resolution are discouraged
according to DSU.9

Findings and Discussion (1950)

The discussion presented in this research revolves around the
identification of the international arbitration commercial laws, their
implications, and their effectiveness in resolving the disputes in the
context of intellectual property rights. The information presented
above, primarily focuses upon arbitration as a means to ensure the
resolution of intellectual property disputes. In this context, it has
been found that arbitration is an organised and systematic
procedure of facilitating the resolution of disputes, while at the
same time adhering to the legal processes and procedures
prescribed by the dispute resolution bodies. The literature examined
in this report specifically emphasises that even though arbitration
has gained significant importance as a measure to resolve disputes,
it does not adhere to a legal framework. However, it does not imply
that the disputing parties can freely enter or exit the arbitrary
process. The paperwork, in this context, is mandatory to be
completed before the initiation of the arbitration proceedings.
One of the most crucial findings of this research is the fact that
the process of arbitration is more closely linked to the private
mechanisms instead of legal mechanisms so as to resolve the
disputes outside of the court. The implications of the arbitrary
decision, however, are identical to those of a court rulings if the
disputing parties agree to accept the decision of the arbitrators. It
is, at this point, essential to highlight another key finding of this
research concerning the key point of difference between an arbitrary
decision and a court ruling. Based on the information presented in
the research and the supporting literature, it is logical to infer that
acceptance of an arbitrary decision is discretionary and may or may
not be acceptable to the parties who have been disputing
concerning the intellectual property rights. Decisions of the court
proceedings, however, bind the parties involved in the dispute to
abide by the instructions given to them. The difference between
arbitration and court proceedings is, thus, reinforced in light of the
fact that if a consensus is not reached among the disputing parties,
the arbitrary decision is often discarded.

8
Horst Eidenmller, Regulatory Competition in Contract Law and Dispute
Resolution (Publisher Bloomsbury Publishing 2013) 116
9
Oliver P, Succeeding With Your Literature Review: A Handbook For
Students: A Handbook for Students (McGraw-Hill Education 2012)
 It must, however, be noted that even though it has been
observed in a few instances that the arbitrary decision has not been
accepted by the disputing parties, it still maintains its reputation as
being a more preferred conflict resolution method than the court
decisions. It can be inferred from the literature review that the
neutrality, confidence, expertise, and a quick decision-making are
the key factors that make arbitration a more preferred dispute-
resolution method than the court proceedings. The discussion
presented in this research, at one point, seems to imply that
arbitration in the context of dispute-resolution is an informal
mechanism to resolve the budding conflicts. Such notion, however,
is incorrect. In this research, the fact that the arbitrary processes
involve several legal proceedings before the initiation, during, and
after the process has significantly be stressed upon. In this regard,
the research reveals that one of the most prominent features of
arbitrary settlements is the involvement of a written agreement
between the two parties to resolve a conflicting situation.
Further examination in the context of differences between
litigation and arbitration is based on the views of various scholars as
discussed in the literature review. Based on the structure of
litigation presented in the research, it has been found that
negotiation is a vital element of arbitrary processes. The essence of
arbitrary proceedings lies in negotiations between the conflicting
parties. Such negotiation mechanisms undertaken by the arbitrators
to facilitate conflict resolution have extraordinarily low cost
implications. Furthermore, the degree of flexibility availed by the
conflicting parties during the arbitrary proceedings are encourage
the disputing parties to resolve the conflict outside of the court
room.
The intellectual property rights have emerged as the key points
of conflict internationally, especially after the advent of
globalisation. The literature reveals that the increasing adoption of
globalisation activities has led to the free movement of goods and
services across the world. The intellectual property rights, in the
context of this research are primarily concerned with the provision
of services and flow of information in multiple countries. Such flow
of intellectual property in different geographies has further led to
the increase in incidents of it being stolen or imitated.
References