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Choice Of Law In International Intellectual Property Arbitrations: A Three-Dimensional Chess Game?

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Chapter Summary

An arbitral tribunal making a choice-of-law determination in an international arbitration may sometimes feel as if it is watching, or perhaps more to the point is the referee of, a chess match between the parties. At the risk, perhaps, of stretching the metaphor too far, in comparison to such a determination in usual commercial matter, a choice-of-law analysis in an intellectual property (IP) related international arbitration can take on all the complexity of the fictional three-dimensional chess game played on Star Trek. First, in international arbitrations as opposed to litigation in court, there are more jurisdictions whose law could be applicable to one aspect or another of the arbitral proceedings. Secondly, there are different types of IP-patents, copyrights, trade secrets, and so on. International IP arbitrations may involve circumstances that may make a traditional choice-of-law analysis difficult, if not impossible. This chapter explores this interplay of choice-of-law and IP considerations.

Keywords: arbitral tribunal; choice of law; intellectual property (IP); international arbitrations; jurisdictions; litigation



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