1 1 ADR for Intellectual Property Disputes – ADR Practice in Luxembourg: ARBITRATION

2 2 CENTER OF ARBITRATION - ESTABLISHED ON 1987 COUNCIL OF ARBITRATION - 5 membres ( President the National Luxembourg Committee of the International Chamber of Commerce (ICC), the Luxembourg member of the Arbitration Court of the ICC, the President of the Bar of Luxembourg, the General Director of the Chamber of Commerce and the President of the Institute of Auditors ( Institut des Réviseurs d'Entreprises - IRE ). CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

3 3 MONITORING/POLICING PROCEDURES BY COUNCIL time limits (answer, terms of reference, award) does not settle disputes itself CONFIRMATION (or APPPOINTMENT) of arbitrator(s) 1 or 3 ARBITRATORS SCRUTINY OF AWARD CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

4 4 REQUEST - date of the reception of the request by the Secretariat of the Center = date of commencement of the arbitral proceedings a) names in full, description, and addresses of the parties, b) a statement of the claimant's case, c) the relevant agreements, and in particular the agreement to arbitrate, and such documentation or information as will serve clearly to establish the circumstances of the case, d) all relevant particulars concerning the number of arbitrators and their choice CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

5 5 ANSWER - 30 days from the receipt of request (extension) COUNTERCLAIM - reply to the counterclaim: 30 days from the receipt of counterclaim (extension) CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

6 6 AGREEMENT to submit to arbitration under the Rules = Rules in effect on the date of commencement of the arbitration. If no answer, or plea concerning the existence, validity or scope of the agreement to arbitrate: if prima facie existence agreement, Council may decide that the arbitration shall PROCEED. In such a case any decision as to the arbitrator's jurisdiction shall be taken by the arbitrator himself. CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

7 7 If any party REFUSES or fails to take part in the arbitration or any stage thereof, the arbitration shall PROCEED notwithstanding such refusal or failure. CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

8 8 TERMS OF REFERENCE (TOR) a) the full names and description of the parties, b) the addresses of the parties to which notifications or communications arising in the course of the arbitration may validly be made, c) a summary of the parties' respective claims, d) definition of the issues to be determined, e) the name in full, address and other contact details of each of the arbitrators, f) the place of arbitration, g) particulars of the applicable procedural rules and, if such is the case, reference to the power CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

9 9 TOR: Signed by all parties and the arbitrator (AT) Transmitted to Council of arbitration within TWO MONTHS of the date when the file has been transmitted to AT (extension) (approval by Council) When signed/approved: NO new claims that exceed limits of TOR, unless AT agrees CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

10 SCRUTINY OF AWARD : no award may be signed before scrutiny (modification on form YES/freedom of decision – draw attention on points of substance) – legal effectiveness, enforcement, better accuracy-quality of award AWARD = final By submitting the dispute to arbitration by the Center, the parties shall be deemed to have undertaken to carry out the resulting award without delay and to have waived their right to any form of recourse insofar as such waiver can validly be made. CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

11 GUARANTEES: impartiality, independence (statement/disclosure) of specialised arbitrators Confidentiality (know-how, IP, …) Legal certainty: Scrutintiny of draft award, execution in 152 NY Convention states Modern rules of arbitration Foreseeability (Procedural timetable, closing of proceedings, date for the submission of the draft award) CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

12 FINAL REMARKS Valid clause “All disputes arising out of or in connection with the present contract shall be finally settled under the Rules of arbitration of the Arbitration Center of the Luxembourg Chamber of Commerce by one or more arbitrators appointed in accordance with said rules.” May be completed as follows : “The arbitral tribunal shall be composed of one/three arbitrator(s).” “The law governing the contract shall be the law of ( _ ).” CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

13 ARBITRATION AGREEMENT Between 1.) ____________, having its registered office in __________________, represented by __________________ And 2.) ____________, having its registered office in __________________, represented by __________________ I.Statement (Brief statement of the background, the underlying facts and state the object of the litigation. In case of different views, each party issue sits own statement.) II.The parties under 1.) and 2.) hereby agree to submit their dispute to the Arbitration Center of the Luxembourg Chamber of Commerce. The dispute shall be finally settled in accordance with the rules of arbitration of the Arbitration Center of the Luxembourg Chamber of Commerce by one arbitrator / three arbitrators (delete as appropriate) appointed in accordance with these rules. CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

14 III.The parties declare having knowledge of and accept the rules of arbitration of the Arbitration Center of the Luxembourg Chamber of Commerce. IV.The arbitrator will have to resolve the following issue(s): (Mission of the arbitrator/s) V.Nomination of the arbitrator/s The parties appoint as arbitrator: ___________________________ (if one sole arbitrator) The parties appoint as arbitrators: (if three arbitrators) Done in triplicate, _________________, on the _________________ (1 of which is to be addressed to the Arbitration Center) (Signatures) CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE

15 THANK YOU FOR YOUR ATTENTION Anne-Sophie THEISSEN SECRETARY GENERAL CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE anne-sophie.t CENTER OF ARBITRATION OF THE LUXEMBOURG CHAMBER OF COMMERCE