Arbitrability of Intellectual Property Disputes: A Legal Analysis

Intellectual Property assumes a significant position in the global economy. Disputes arising out of intellectual property are well recognised globally and the need for a shift in its resolution mechanism is felt. Despite the several protection regimes in place, intellectual property disputes are on a rise and are clogging the judiciary. A need for a shift from court-based litigation to effective Alternate Dispute Redressal Mechanisms is the need of the hour. Among the many ADR methods. Arbitration is the most desired dispute resolution mechanism for commercial disputes as it offers several advantages such as party autonomy, saving time and cost, confidentiality to name a few. However, Intellectual Property Disputes have certain characteristics that are complex and challenging. IPRs per se cannot be arbitrated as they are in nature of ‘right in rem’ but there have been instances where IP disputes have successfully been brought under the Arbitration regime. Arbitrability of IP Disputes remains a grey area in India. This paper aims to study the nature of Intellectual Property Rights and analyse the challenging concept of Arbitrability of IP disputes from an Indian view point. The paper further examines and probes into the pros and cons of engaging Arbitration as a means to resolve IP disputes, and the status of various jurisdictions shall be studied for the same. The author concludes by laying emphasis on the significance of arbitrating IP disputes, and reiterates the need to re-examine the Doctrine of Arbitrability and proposes the constitution of Special Arbitral Tribunals to deal exclusively with commercial arbitrations arising from IP.