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19 Arbitration, Antitrust and Intellectual Property: A Perfect Storm?

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Chapter Summary

Arbitrators, particularly in international matters, are frequently called upon to make difficult decisions. The parties, who, for an international arbitration, typically come from different countries, may have, indeed usually do have, markedly different customs, legal systems and expectations. Antitrust analysis may be required under United States law for many common aspects of commercial IP transactions. Although the details of the analysis vary depending on the nature of the conduct in question and have varied over time even for the same conduct, at least some conduct is per se illegal and even criminal. The legality of the remainder, which in fact touches many commercial IP activities, either is tested under a rule of reason approach requiring complex economic analysis or is presumptively legal. The principal complicating factors are the variation among various nations' antitrust laws and the variation in the application of conflict-of-law principles.

Keywords: antitrust; commercial IP transactions; international arbitration; United States



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