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Sunday, June 3, 2012

IP Arbitration and Mediation initiatives In Philippines and Indonesia

The ADR craze keeps on going. In both Indonesia and the Philippines there are initiatives to allow parties to take IP disputes to arbitration and mediation.
The Philippine Intellectual Property Office (‘IPO’) has issued rules of procedure for arbitration proceedings.  It is government policy to promote ADR. The rules apply to all IP disputes before the IPO such as oppositions, cancellation proceedings, as well as administrative cases for infringement and unfair competition. 
Since arbitration is voluntary in nature, it is unlikely to be effective against hardened violators who will continue to require stronger enforcement remedies such as raids and criminal prosecution.  That said, arbitration is an option for others looking for a simpler and quicker resolution.  It is a way to bypass overburdened dockets, technical requirements (arbitrators shall be the sole judge of the admissibility, relevance, materiality and weight of evidence) and integrity issues plaguing traditional venues for dispute resolution in the Philippines.   

But since the IPO already has quite an effective and relative informal inter partes disputes system running in the Bureau of Legal Affairs, one wonders if this is form rather than substance. We will have to see if there are cases which the BLA cannot handle well, and which the other party agrees would be better arbitrated. 

Meanwhile Indonesia has set up a specialist IP arbitration body called the IP Arbitration Board which consists of many well known mainly former IP experts. It aims to hear various IP disputes, particularly licensing disputes or cases where the parties agree to go to arbitration. The Board can offer both arbitration and mediation. Given the weakness of the Indonesian courts, this is perhaps a good idea, since contract matters are handled in the general courts, which is never ideal given their poor reputation.

But many kinds of IP disputes are heard in the Central Jakarta Commercial Court. It would be a shame to take the focus away from the gradual improvements being made in that court, which are so vital to proving that enforcement can work in Indonesia. 

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