Arbitrability of IP Disputes in India: The Conundrum of Exclusion by Necessary Implication and Right in Rem

Nikita Samdariya
Symbiosis Law School, Hyderabad, India.

Volume III – Issue I, 2021

Intellectual Property (hereinafter referred to as IP) has been regarded as an invaluable asset in the current commercialized economy and holds an indispensable place in commercial contracts. With a parallel boost in consequential IP litigation and the unfortunate stumbling blocks that the conventional judicial system in India faces, arbitration is recognized as an expedient and relatively efficient mode of dispute resolution in IP matters, owing to its adversarial yet party friendly approach. However, the conundrum is centered on the arbitrability of IP disputes which is hit by the enigma of IP disputes being a complex blend of rights in rem and personam, with the former being established as non- arbitrable and capable of being adjudicated only by the public fora. In addition, certain subject matters, though involving questions of private rights, are non- arbitrable owing to their implied statutory exclusion from the ambit of arbitration. This article exhaustively discusses the aforementioned impediments to arbitration of IP disputes in India and how a pro- arbitration stance in IP matters is a sine qua non of the current economic transition towards a commercialized society.

Keywords: Arbitrability, Intellectual Property, Right in Rem and Personam, Implied Exclusion, Public Policy, Vidya Drolia


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