Conference on Rules for Institutional Arbitration and Mediation - WIPO

202 Pages·2014·8.61 MB·English

CONFERENCE ON RULES
FOR INSTITUTIONAL
ARBITRATION AND MEDIATION
Geneva, January 20, 1995
World Intellectual Property Organization
CONFERENCE
ON RULES
FOR INSTITUTIONAL
ARBITRATION
AND MEDIATION
jointly organized
by the
World Intellectual Property Organization (WIPO)
and the
Swiss Arbitration Association (ASA)
Geneva, January 20, 1995
•
WORLD INTELLECTUAL PROPERTY ORGANIZATION
GENEVA 1995
Coyer
The cover shows, inside the WIPO logo, a picture
of the Alabama Room in Geneva's Hotel de Ville (Town Hall).
The Alabama Room was the place where the arbitration tribunal
sat from December 1871 to September 1872 in the landmark
Alabama Arbitration between the United States of America
and the United Kingdom. A number of other major international
arbitrations have subsequently taken place in the Alabama Room.
The Alabama Room, which is open to visits by the public, was made
available by the Geneva authorities for visits by the participants in the
Conference on Rules for Institutional Arbitration and Mediation
during the Welcome Cocktail jointly offered to the participants
by the State Council of the Republic and Canton of Geneva and the
Administrative Council of the City of Geneva on the eve of the Conference.
WIPO PUBUCATION
No. 74l(E)
ISBN 92-805-0610-2
WIPO 1995
Reprinted 1999
Cover photograph by Brutsch & Brutsch
PREFACE
On January 20, 1995, the World Intellectual Property Organization (WIPO) organized jointly
with the Swiss Arbitration Association (ASA) a Conference on Rules for Institutional Arbitration
and Mediation, which was held in Geneva at the headquarters of WIPO.
The purpose of the Conference was to examine the approaches and solutions adopted in the
Rules of various arbitration institutions, and in the UNCITRAL Arbitration Rules, to the issues and
problems arising in arbitral proceedings. In this context, the WIPO Arbitration Rules, which entered
into force on October 1, 1994, were examined and the new features and approaches in those Rules
compared with corresponding provisions in the Rules of other arbitration institutions.
Sessions were also devoted to a consideration of the WIPO Expedited Arbitration Rules and
the WIPO Mediation Rules and to the advantages, opportunites and limitations of the procedures of
expedited or fast-track arbitration and mediation, respectively.
The speakers at the Conference were members of an expert group, convened by WIPO, that
met on three occasions in 1994 to review and revise the draft WIPO Arbitration, Expedited
Arbitration and Mediation Rules. The Conference thus provided an opportunity to explain some of
the main considerations that lay behind the adoption of particular provisions in those Rules. A
number of distinguished experts gave commentaries on the presentations made by the speakers and
an opportunity was provided for the participants to join the discussion.
The present volume contains the texts of the presentations that were made at the Conference,
the commentaries given by the panelists and the interventions made during the discussion sessions.
The audience comprised 230 persons from 32 countries. A list of the participants appears at
the end of this publication.
The World Intellectual Property Organization (WIPO) would like to express its gratitude to
the Swiss Arbitration Association and, in particular, to its President, Dr. Marc Blessing, for their
cooperation and assistance in the conception, planning and conduct of the Conference. The
Conference was a manifestation of the more general support that the Swiss Arbitration Association
and its President have given to WIPO in the establishment and operation of the WIPO Arbitration
Center. It has beeri a particular encouragement to the WIPO Arbitration Center , a new international
arbitration center, to have the support of, and to be able to draw on the extensive experience and
expertise of, the long tradition of arbitration in Switzerland as embodied in the Swiss Arbitration
Association.
On the eve of the Conference, the State Council of the Republic and Canton of Geneva and
the Administrative Council ofthe City of Geneva graciously extended hospitality to the participants
in the Conference in the form of a welcome cocktail that was offered jointly by them at the Palais
Eynard. This event constituted not only an example of the fine cooperation that exists between the
Geneva authorities and the World Intellectual Property Organization, but also a manifestation of the
support given by those authorities to international arbitration and to the role of the WIPO Arbitration
Center in international arbitration.
oJB~t~
July 1995
Director General
World Intellectual Property Organization

TABLE OF CONTENTS
Preface .............................................................. · · · · ·
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INFORMATION ON SPEAKERS AND PANELISTS
OPENING ADDRESSES
Arpad Bogsch,
Director General, WIPO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Marc Blessing,
Biir & Karrer, Zurich; President, ASA 9
THE COMMENCEMENT OF ARBITRAL PROCEEDINGS
Francis Gurry,
Director, WIPO Arbitration Center 11
CONSTITUTING THE ARBITRAL TRIBUNAL
Albert Jan van den Berg,
Stibbe, Simont, Monahan, Duhot, Amsterdam;
Vice-President, Netherlands Arbitration Institute (NA/) 17
Commentaries and Discussion
Fram;ois Knoepjler,
Knoepjler Gabus Gehrig, Neuchdtel;
Chairman, Swiss Association ofI nternational Law 33
Eric Schwartz,
Secretary General, International Court ofA rbitration,
International Chamber ofC ommerce (ICC), Paris . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Rules for Institutional Arbitration and Mediation
lV
THE CONDUCT OF ARBITRAL PROCEEDINGS UNDER THE RULES OF ARBITRATION
INSTITUTIONS; THE WIPO ARBITRATION RULES IN A COMPARATIVE PERSPECTIVE
Marc Blessing,
Biir & Karrer, Zurich; President, ASA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Jan Paulsson,
Freshftelds, Paris 73
Commentaries
Gerald Aksen,
Reid & Priest, New York 77
Michael Schneider,
Etude Lalive & Partners, Geneva 79
THE ARBITRAL DECISION
Gerold Herrmann,
Secretary, United Nations Commission on International
Trade Law (UNCITRAL), Vienna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
FEES AND COSTS
Francis Gurry,
Director, WIPO Arbitration Center 91
Commentaries and Discussion
Werner Me/is,
Chairman, International Arbitral Center, Federal Economic
Chamber, Vienna . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103
Stephen R. Bond,
Partner, White·& Case, Paris 107
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Table of Contents v
THE WIPO EXPEDITED ARBITRATION RULES: FAST-TRACK ARBITRATION
Jan Paulsson,
Freshfields, Paris 113
Albert Jan van den Berg,
Stibbe, Simont, Monahan, Duhot, Amsterdam;
Vice-President, Netherlands Arbitration Institute (NAI) 117
THE MEDIATION RULES OF WIPO AND OTHERS: A TICKET TO PARADISE
OR INTO A BETTER MOUSETRAP?
Marc Blessing,
Bar & Karrer, Zurich; President, ASA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Commentary and Discussion
Martin Lutz,
Lenz & Staehelin, Zurich; Secretary General, International
Association for the Protection ofI ndustrial Property (AIPPI) 133
Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137.
Annexes
ANNEX I: WIPO Mediation Rules .................................... . 143 to 151
ANNEX II: WIPO Arbitration Rules .................................... . 153 to 183
ANNEX III: WIPO Expedited Arbitration Rules ........................... . 185 to 187
ANNEX IV: Recommended WIPO Contract Clauses
and Submission Agreements ............................... . 189 to 191

INFORMATION ON SPEAKERS AND PANELISTS
GERALD AKSEN
Mr. Gerald Aksen, a national of the United States of America, is Senior Partner of the law firm
of Reid & Priest in New York and Adjunct Professor of Law at New York University School of Law.
Mr. Aksen holds his first degree from the City College ofNew York, a Master of Arts from
Columbia University and a law degree from New York University School ofLaw.
Mr. Aksen specializes in international commercial arbitration and has published numerous
articles in that area.
Mr. Aksen is a member of the Board of Directors of the American Arbitration Association
(AAA) and was formerly its General Counsel. He has been Chairman of the Advisory Committee on
Alternative Dispute Resolution and of the Arbitration Committee of the Association of the Bar of the
City ofNew York, as well as ofthe Section oflntemational Law and Practice ofthe American Bar
Association. He is a member ofthe ICC Institute oflnternational Business Law and Practice and of
the WIPO Arbitration Consultative Commission.
MARC BLESSING
Dr. Marc Blessing, a national of Switzerland, is a partner in the law firm of Bar & Karrer in
Zurich.
Dr. Blessing is a graduate ofthe Universities of Zurich and Geneva. He has been, since 1991,
President of the Swiss Arbitration Association (ASA) and, since 1983, a member of its Executive
Committee.
Dr. Blessing has extensive experience as counsel and as arbitrator in international commercial
arbitration, in which field he is also the author of numerous articles.
Dr. Blessing is Co-Chairman of the Court of Arbitration of the Zurich Chamber of Commerce
and a member of the London Court of International Arbitration and the WIPO Arbitration Council.
FRANCIS GURRY
Francis Gurry, a national of Australia, is Director of the WIPO Arbitration Center.
Mr. Gurry holds law degrees from the University of Melbourne and a Doctor of Philosophy from
the University of Cambridge in the United Kingdom.
Before joining WIPO in 1985, he practiced as an attorney in Melbourne and Sydney and also
taught law at the University of Melbourne. At WIPO he has held positions in the Development
Cooperation and External Relations Bureau for Asia and the Pacific, the Industrial Property Division,
the Office of the Director General and the Office of a Deputy Director General.
He is the author of a textbook on the law of trade secrets and confidential information, entitled
Breach of Confidence, published by Oxford University Press in the United Kingdom in 1984 and re
printed in 1991.