The World Intellectual Property Organisation (WIPO) has recently amended its Arbitration and Expedited Arbitration Rules. The changes reflect current trends and challenges in international arbitration concerning the use of videoconference and online tools for the conduct of the proceedings. The stringent climate change concern is also addressed by the introduction of a default rule of electronic filing for any submission, including the request for arbitration and answer to the request.
Default rule for paperless submissions
The first notable change in the WIPO Arbitration Rules is the amendment of article 4(a) and 5(b). With this change, the default rule for filing the request for arbitration and the answer to the request is electronic filing. The request for arbitration, the answer to the request and any other submissions should be submitted in paper form only if a party so decides. If this would be the case, the party must use expedited postal or courier services.
By eliminating the requirement for paper filing, WIPO Arbitration Rules contribute to the expedition of the arbitral process. They also contribute to the reduction of the carbon emissions, thereby helping in the fight against climate change. In this respect, a study conducted before the launch of the Greener Arbitration Campaign, listed eliminating hard copies as one of the three main measures that could contribute to substantially reducing the carbon emissions.
Third party funder information to be provided from the outset
Another change is the introduction of item (vii) in article 9 (Request for Arbitration): the request for arbitration shall contain, if applicable, the identity of any third-party funder. If a funding agreement is concluded at a later stage of the proceedings, the identity of the third-party funder shall be disclosed promptly to the parties, the Center, and the Tribunal.
A similar provision is included in article 11 letter b) with respect to what the answer to the request should contain.
This amendment is in line with recent recommendations in international arbitration and recent amendments to other arbitration rules. According to these, the identity of a funder should be promptly disclosed, to protect the independence and impartiality of the arbitrators.
Introducing express reference to online hearings and other online tools
Even before the pandemic, international arbitration was already equipped with the necessary procedural rules for hearings to be held remotely. Other meetings were already conducted remotely (procedural hearings, etc). However, evidentiary hearings were mainly conducted with the physical presence of the participants.
Since the beginning of the pandemic, international arbitration has rapidly adapted to the situation and switched to remote hearings. This allowed cases to be solved in the international arbitration sphere, whereas courts of law in most jurisdictions were blocked.
Article 55 letter a) of the WIPO Arbitration Rules has now been amended to reflect this reality. It now provides that if hearings are held, these can be conducted by videoconference or using online tools, in addition to in-person hearings.
Closely related, and reflecting again the new pandemic generated realities, article 40 of the WIPO Arbitration Rules was also amended. It now expressly indicates that the preparatory conference can also be conducted by telephone, videoconference or using online tools. Article 49 dealing with emergency relief proceedings was also amended. It now includes express reference to the possibility of the emergency arbitrator to use videoconference or online tools for proceedings as alternatives to a hearing.
Another notable change is in the Schedule of Fees applicable to WIPO arbitrations, where a 25% reduction of the registration and administration fees is applicable in certain cases. The respective cases are: if a party (or both parties) to the dispute is (are) named as applicant or inventor in a published PCT application, holders of international registrations under the Hague system or the Madrid system, WIPO Green technology providers or seekers, or an SME (an entity with less than 250 employees).
Similar changes were made to the WIPO Expedited Arbitration Rules.
While the WIPO Arbitration Rules are particularly well suited to intellectual property disputes as they contain specific provisions tailored for such disputes, the rules can be used to settle any type of commercial disputes. Their innovative character and constant updates to reflect users’ needs make them a reliable set of arbitration rules that parties can use for their disputes.