Arbitrability Of Intellectual Property Disputes: Reconciling Public Rights With Private Adjudication
- IJLLR Journal
- 2 hours ago
- 2 min read
Lovely Upadhyay, Banasthali Vidyapith
Introduction
The arbitrability of Intellectual property (IP) dispute presents a consistent doctrinal problem in the arena of Arbitration jurisprudence as traditionally IP disputes are considered as right in rem hence not considered a proper subject of Arbitration but in a globalized and innovation driven society rights are increasingly been commercialized through licensing, franchising etc. In fact the global IP legal services market is expecting staggering growth by 2035. Hence all these developments are challenging the conventional understanding regarding IP disputes due to which the current discussion becomes even more pertinent and demands a reexamination of current practices.
Intellectual Property is the creation of the mind. From the perspective of the idea-expression dichotomy, these rights are always claimed over the expression and not merely on the idea. These rights are often termed as negative rights, as they are exclusively given to the owner or creator and exclude all others. Hence, these rights are practiced against the whole world and are granted by the state, so they are called rights in rem.
Disputes concerning Intellectual Property Rights generally fall into the criteria of rights in rem that are enforceable and protected by public fora; such rights are not eligible for arbitration. However, this is not explicitly written anywhere. The Arbitration and Conciliation Act, 1996, does not specify the particular subject matters where arbitration can be performed, but it does specify the areas where it cannot be done; one subject matter which is non-arbitrable is a matter concerning a right in rem.
In a globalized economy, Intellectual Property is widely used by way of license and assignment, which carry rights in personam that are exercisable against a specific party.
