вход по аккаунту


Briefs International intellectual property.

код для вставкиСкачать
Vol. 14, No. 11
December 1996
Alternatives 143
CPR Institute for Dispute Resolution
Briefs: International Intellectual Property
UN Affiliate Releases
IP Mediation Guide
A new guide to mediation geared to
international intellectual property
disputes has been released by the
World Intellectual Property Organization, a Geneva-based United Nations organization.
WIPO opened its Arbitration and
Mediation Center nearly two years ago.
Director Francis Gurry says that it began in response to the internationalization of intellectual property
disputes, the highly technical nature
of the disputes, and because an increasing number of IP disputes involve
multiple jurisdictions.
The center’s 16-page guide is a
primer on the use of mediation. Gurry
explains that private attorneys’ suggestions indicated that there was a need
for a small handbook that they could
give to their clients to explain mediation in lay terms.
The guide also describes the center’s
program for assisting in mediation.
The center provides intellectual property mediators and facilitates mediation with consulting and support
services.The parties decide on the language to be used and the location of
the mediation.
The center’s fees run to .lo%of the
value in dispi-!te, to a maximum of
$10,000. Center-providedmediatoreit
has 613 mediators in 57 countries, Gurry
says-range in price from $300 to $600
per hour, and $1,500 to $3,500 per day.
The WIPO pamphlet suggests that
parties use mediation because “it enjoys remarkably high rates of success....
Indeed, on one view, mediation never
fails, even if a settlement is not
reached, because the parties will always
come away knowing more about the
dispute and, probably, at least having
narrowed the issues in question.”
Gurry says that the pamphlet currently
is available only in English, but soon will
be out in French. He says that it also will
be available on WIPO’s Internet site,
which also has WIPO’s mediation rules
availablein English, French,Arabic, German and Spanish. The Internet site is at
For copies of the pamphlet, contact
the WIPO Arbitration and Mediation
Center; 34, chemin des Colombettes;
1211 Geneva 20; Switzerland. The
telephone number is 01 1-41-22-7309111, and the fax number is 011-4122-740-3700.
Justices Dissent Over
Arbitration Decision
Two Montana Supreme Court justices
have declined to enforce a US. Supreme
Court remand because they believe that
the top court is wrongly forcing small
businessmen into arbitration.
The action of Justices Terry N.
Trieweiler and William Hunt last summer,
however, was only symbolic: the Montana
court issued its enforcement order 42,
with the twojusticesdmenting,in thewake
of a May US. Supreme Court decision.
In the May case, the U S . Supreme
Court reversed a Trieweiler opinion,
Casarottou. h b u r d i , 886 P.2d 931 (Mont.
1994), in which the Montana court refused to enforce an contract arbitration
clause in a Subway sandwich shop franchise dispute. In his 4 3 majority opinion, Trieweiler wrote that the clause
requiring the franchisee plaintiffs to arbitrate didn’tcomplywith a Montana law
requiring arbitration clausesto be “typed
in underlined capital letters on the first
page of the contract.”
In May in Doctor’s Associates Znc. u.
Casarotto, 116 S. Ct. 1652, an 8-1 U.S.
Supreme Court reversed. In an opinion written by Justice Ruth Bader
Ginsburg, the Court found that the
Montana law conflicted with the Federal Arbitration Act. It had asked the
Montana court to remand the case in
accordance with its ruling. The nation’s
highest court previously had told the
Montana court to reconsider the 1994
decision in light of a subsequently decided US. Supreme Court case,but the
Montana court stuck to its original
(continued on following page)
’ +
“You seem to have seuen distinct personalities,
each practicing a different type of law. ’’
144 Alternatives
(continuedfrompreuious page)
When the Montana Supreme Court
issued its order in July, the twojustices
balked. In their dissent, Trieweiler and
Hunt wrote: “We cannot in good conscience be an instrument of a policy
which is as legally unfounded, socially
detrimental and philosophically misguided as the United States Supreme
Court’sdecision in this and other cases
which interpret and apply the Federal
Arbitration Act.”
The provision required the franchisees to arbitrate disputes in Connecticut.
The Montana court found said that its
state’s notice requirement established
“fundamentalpublic policy.”It declined
to enforce the franchise contract’s a p
plication of Connecticut law in light of
the policy. Trieweiler wrote that the notice law must be followed because the
arbitration provision limited dispute
resolution “toa procedure as potentially
inconvenient, expensive, and devoid of
procedural safeguards as the one prcvided for by the rules of the American
Arbitration Association, and the terms
of this contract....”
In an interview with Alternatives,
Trieweiler says that if his dissent on the
July order had been controlling, he
wouldn’t have issued it. “If I was the
only judge,” he says, “I would have recused myself. I think since the majority of the court intended fully to carry
out the remand, there is nothingwrong
with making a symbolic gesture.”
Trieweiler decries the proliferation
of mandatory arbitration clauses, noting that they are now “cropping up on
insurance policies.”He adds: ‘You can’t
honestly tell me that people who make
these purchases have anything to say
about their terms.”
Nevertheless,Trieweiler says he generally supports alternative dispute resolution efforts. He says he has high
expectations for a mandatory mediation program that began operating
Oct. 1 for cases that have reached the
Montana Supreme Court.
Still, Trieweiler, who is elected to his
post on the Montana Supreme Court,
laments the high court’s Doctor’s Associates decision. “I wish the U.S. Supreme
Court had a few people with a little more
practical experience in representing
people,” he says, adding, “then maybe
we wouldn’t have this problem.”
Vol. 14, No. I 1
CPR Institute for Dispute Resolution
Model Procedures Online
Starting this month, LexisBNexisB will feature selected CPR
materials in its new alternative dispute resolution (ADR) library. A
dozen documents will be available
online. Among the materials are
CPR’s model procedures for mediation, the minitrial and non-administered arbitration; model
drafting clauses; and selected industry and practice ADR programs,
including the CPR Employment
ADR program. To access the documents, select the service’s <AD&
N e w Insurance Commitment
Northbrook, 111.’~Allstate Insurance Co. has become the 38th signatory to the CPR Insurance
Industry Dispute Resolution Commitment. Three Allstate subsidiaries also are taking part in the
commitment. Under the commitment, the companies agree to first
negotiate and then mediate to resolve disputes with other commitment signatories.
N e w Panelists
Seven attorneys have been selected as new members of the CPR
Panels of Distinguished Neutrals,
and are now available to help resolve business and public disputes.
They include CPR National Panelist Prentice H. Marshall of
Cotsirilos, Stephenson, Tighe &
Streicker, who also will serve on
the Chicago Regional Panel; M.
Neal Rains of Arter & Hadden,
who will serve on the Cleveland
Regional Panel; Paul A. Renne of
Cooley Godward LLP, who will
serve on the San Francisco Regional Panel; and Donald B. Ayer
ofJones, Day, Reavis & Pogue, who
will serve on the District of Colum-
December 1996
bia Regional Panel. Madison, Wis.,
attorney Howard S. Bellman, has
been selected as an At-Large Regional Panelist. Paul S. McDonough ofNewYork’sJackson, Lewis,,
Schnitzler & Krupman has been
named to the CPR Employment
Panel, Northeast Region, and
Laurence M. Scoville Jr., of
Detroit’s Clark Hill PLC, has been
named to the CPR Construction
New Franchise Program
Detroit’s Little Caesar Enterprises
Inc. and Tallahassee, Fla.’s Homes
& Land Publishing Ltd. havejoined
the CPR Franchise Mediation Program. There now are 47 companies
taking part in CPRs National Franchise Mediation Program. Under
the program, either a franchisee or
franchiser may initiate a “resolution procedure,” though franchisee participation is voluntary. The
parties must first try to resolve their
dispute through direct negotiation
under the program, and then
through mediation.
Membership Additions
A Big Six accounting firm, three
large companies and six law firms
constitute the group of new and
renewing CPR members in the
third quarter of 1996. Joining as
sustaining member corporations
are Ernst & Young; General Motors Corp.; RJR Nabisco Inc., and
Westvaco Corp. New sustaining
member firms are Turin, Italy’s
Brosio Casati e Associati; San
Francisco’s Cooley Godward LLP
and Gray Cary Ware & Freidenrich
of San Diego. The recent additions to the list of contributing
member firms are Detroit’s Clark
Hill; Cleveland’s Hahn, Loeser &
Parks; and New York-based Jackson, Lewis, Schnitzler & Krupman.
Без категории
Размер файла
337 Кб
international, brief, property, intellectual
Пожаловаться на содержимое документа