Friday, February 5, 2010

Caribbean Intellectual Property: Establishing an arbitral tribunal for the region

By Abiola Inniss, LLB , LLM, ACIarb

The use of arbitration across the Caribbean has been largely within the context of Trade Union disputes and is still something of a novelty in resolving commercial and private disputes in the region (see Rose Marie Belle Antoine, Caribbean Law and Legal Systems, Cavendish, London, 1998). It is interesting to note that more than a decade after the publication of the above mentioned text the situation has registered little change.
This may be the result of a reluctance to embrace new methods of dispute resolution, but is more likely due to the absence of regional mechanisms which are expressly for the purpose of Alternative Dispute Resolution, and which are promoted at the regional level.

The same is true for Guyana, and it is still a mystery that in the face of the difficulties endured in the Guyana legal system with the timely disposal of cases, a mounting backlog, and the tiresome efforts to dispense with the morass, little or no consideration has been given to the use of arbitration.

It is here posited that in developing the legal and regulatory framework for Caribbean Intellectual Property there are three necessary stages. Firstly, there must be the institution of the CCJ as a court of first instance for intellectual property matters with appeals through two other levels to final jurisdiction, this must be accompanied by the creation and /or adoption of concrete IP regulations.

The WIPO rules, though not entirely suited to Caribbean needs, do have some efficacy and may be adjusted accordingly for this purpose. There must be the establishment of an arbitral institution which will deal with the resolution of IP matters using arbitration, mediation and perhaps negotiation; finally, there needs to be aggressive public relations campaigns on the rights and responsibilities of users and producers of Intellectual Property.

The most effective way of establishing such mechanisms is through a CARICOM initiative, and at the peril of imitating the verbiage of the well oiled CARICOM diplomats, it is necessary to state that a ‘CARICOM initiative would enable an holistic implementation of strategic planning and management’, in short CARICOM possesses the material and may source the intellectual resources to create a working arbitral tribunal for Intellectual Property.

It may still be something of a surprise to a discerning citizen of the region that the CSME does not address the issue of modern IP laws and does not propose any mechanism for dealing with it. Intellectual property develops quickly and changes form at a rate faster than can be dealt with by the enactment of legislation , and so must be resolved by means other than legislative dictates.

The World Intellectual Property Organization (WIPO) has a permanent Alternative Dispute Resolution institution which mediates and arbitrates IP matters, especially with regard to domain name disputes. In spite of our relatively underdeveloped state in the field of creation of Internet Communication Technology, it makes sense to establish some means of dealing with these issues following the WIPO arrangement. It may even be possible to arrange for a special unit at WIPO to deal with Caribbean domain dispute issues which takes into consideration our unique circumstances.

The establishment of an arbitral tribunal for Intellectual property matters will ensure that Caribbean nationals have a swift, reliable and consistent means of resolving IP disputes, especially in the areas which are most affected at this time. The issues of music, culture and the other creative arts which are left unprotected are foremost among the IP concerns of the region and in some instances have arisen because of a new awareness of the need to preserve cultural heritage.

This situation has arisen in Jamaica where sections of the Rastafarian community are seeking protection of the use of symbols associated with their heritage and beliefs. An arbitral tribunal would not only be able to hear matters in greater detail than a court of law, but would be able to quickly determine the situation according to the law and to make relevant awards. The CSME would be a most significant beneficiary of such an establishment since there are likely to be considerable numbers of disputes both national and transnational, it is also anticipated that there should be some international investments and interaction in the area of ecommerce, making dispute resolution mechanisms which are of international standard absolutely necessary. Perhaps the most compelling evidence of the efficacy of the workings of an internationally competent arbitral tribunal may come from the WIPO Arbitration Rules as follows:

Time Period for Delivery of the Final Award
Article 63

(a) The arbitration should, wherever reasonably possible, be heard and the proceedings declared closed within not more than nine months after either the delivery of the Statement of Defense or the establishment of the Tribunal, whichever event occurs later. The final award should, wherever reasonably possible, be made within three months thereafter.

(b) If the proceedings are not declared closed within the period of time specified in paragraph (a), the Tribunal shall send the Center a status report on the arbitration, with a copy to each party. It shall send a further status report to the Center, and a copy to each party, at the end of each ensuing period of three months during which the proceedings have not been declared closed.

(c) If the final award is not made within three months after the closure of the proceedings, the Tribunal shall send the Center a written explanation for the delay, with a copy to each party. It shall send a further explanation, and a copy to each party, at the end of each ensuing period of one month until the final award is made.

The example of this rule illustrates the kind of efficiency necessary for the effective management of IP issues and which would be necessary where the Caribbean seeks to institute its own dispute resolution mechanism. Again where there is the necessity to determine jurisdiction and applicable law for the purpose of the arbitration, the rules provide thus:

Laws Applicable to the Substance of the Dispute, the Arbitration and the Arbitration Agreement
Article 59

(a) The Tribunal shall decide the substance of the dispute in accordance with the law or rules of law chosen by the parties. Any designation of the law of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules. Failing a choice by the parties, the Tribunal shall apply the law or rules of law that it determines to be appropriate. In all cases, the Tribunal shall decide having due regard to the terms of any relevant contract and taking into account applicable trade usages. The Tribunal may decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized it to do so.

(b) The law applicable to the arbitration shall be the arbitration law of the place of arbitration, unless the parties have expressly agreed on the application of another arbitration law and such agreement is permitted by the law of the place of arbitration.

(c) An Arbitration Agreement shall be regarded as effective if it conforms to the requirements concerning form, existence, validity and scope of either the law or rules of law applicable in accordance with paragraph (a), or the law applicable in accordance with paragraph (b).

As suggested above it is not necessary in the beginning stages to create a regulatory framework for an arbitral tribunal from scratch since it is possible to draw on already well established mechanisms which have proved their worth. All that is required is the recruitment of the intellectual and material resources to implement the scheme, of course the political acumen and the will to truly develop our region.

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