COLLABORATIVE TECHNOLOGY DEVELOPMENT and ADR Dr. Achim Krebs Intellectual Property Services Shell International B.V. WIPO ADR Workshop, 13 November 2009 Copyright Shell International B.V.

1 INFLUENCING TODAY’S ENERGY WORLD ENERGY CHALLENGE BIOTECHNOLOGY RISING DEMAND NEW ENTRANTS EMERGING SCIENCE VALUE OPPORTUNITIES NANOTECHNOLOGY SUPPLY SECURITY PLANET CONNECTIVITY & HP COMPUTING

2 Collaborative Research and Shell A few key figures: Shell is engaged in ~1000 projects at more than 300 universities and knowledge institutes worldwide Shell has > 60 active equity investments in small and medium sized enterprises (SME’s) Shell is also involved many collaborations with large engineering firms, with multiple $ bln implication Projects and investments include research contracts, participation in joint industry programmes, and joint ventures, direct investments and investments through venture funds.

3 Considerations for choosing Alternative or Judicial Dispute Resolution Main factors to consider include: Costs Speed Confidentiality Quality/Predictability Jurisdiction, forum/place and law Legal effects and implications Size and kind of parties involved (symmetrical or asymmetrical, horizontal or vertical agreements, location, territory).

Generally conducted by a single mediator who helps to facilitate a discussion and eventual resolution of a dispute. Advantages: Informal procedure Speed and timing Disadvantages: Costs No binding effect on the parties, hence still additional court case possible with e.g. harmful publicity Drawing out time before litigation can ensue (e.g. one party unwilling to come to an arrangement) Secrecy: No conservatory measures, e.g. to ensure no abuse of proprietary information or publications 4 Mediation

Arbitrator(s) make decisions about evidence and give written opinions (binding or non-binding) Advantages: Costs Secrecy (if agreed, but no means of enforcement) Wide choice of forum and law Can be legally binding Speed Disadvantages: Costs (especially ICC) No binding effect on the parties, hence still additional court case possible with e.g. harmful publicity Possibility to exclude conservatory measures Decisions sometimes difficult to register with national authorities 5 Arbitration

6 Alternative Dispute Resolution -avoiding pitfalls Use mixed approach to close gaps e.g. combine ADR clauses with clauses allowing court proceedings (e.g. to attempt to avoid litigating a dispute to its conclusion, or to allow parties to enforce preliminary injunctions on e.g. preservation of secrecy). Avoiding prejudiced arbitrators or mediators (pre-define arbitrator or mediator in agreement, or use majority vote of 3 arbitrators) Clear definition of which rules to apply– e.g. English law, but no discovery procedure; e.g. ICC, LCIA, WIPO Arbitration and Mediation or UNCITRAL procedural rules Clear definition of which law is applicable (common versus civil law)

7 Alternative Dispute Resolution – practical situation Measures applied to resolve disputes before ADR: Careful negotiation of contracts Ensuring that each side understands the effect of the clauses and the used law, as well as costs involved Post- contract management of relationship Address conflicts early