What is arbitration?
- What are your arbitration services? And how are procedures for arbitration conducted?
- Arbitration is a system for dispute resolution operated on the assumption that the parties entrust a decision on their dispute to the arbitrators, who are neutral third parties, and agree in advance to accept the decision of the arbitrators.
Arbitration is conducted by a consultative body composed of three arbitrators, including at least one attorney-at-law and one patent attorney.
The arbitrators determine the date for arbitration and conduct the arbitration at a location designated by the Center. They also hold a preparatory meeting as needed to make the necessary preparations for arbitration, including the summary and supplementation of arguments and the presentation of documentary evidence.
The arbitration procedures are completed when the arbitrators give an arbitrators' decision to the applicant. Except in particular cases, the applicant can file neither an appeal nor a suit against the arbitrators' decision.
The arbitrators' decision has the same validity as a final decision, and if a decision on execution of an arbitrators' decision is made by a court, execution of the arbitrators' decision is legally binding and required.
Types of cases as for which you can apply for arbitration
- We want to apply for arbitration. Are there any limitations on the cases for which we can apply?
- You can apply for the Center's arbitration services for cases involving intellectual property rights, such as disputes about industrial property rights (patent rights, utility model rights, design rights, trademark rights), disputes about copyrights and disputes regarding the Unfair Competition Prevention Law, domain name-related disputes and disputes on trade secrets, knowledge, seed and seedling breeders' rights and disputes on rights to circuit placement in accordance with the Law concerning the Circuit Placement of Semi-conductor Integrated Circuits.
Disputes on employee inventions
- Can I settle a dispute about my employee's invention by arbitration?
- If an employee and the employer can reach an arbitral agreement when a dispute about the employee's invention arises, such a dispute can be resolved by arbitration. As for an arbitral agreement for a dispute on an employee's invention, care should be taken because a prior agreement may become invalid in accordance with the provisions of Article 4 of the Supplementary Provisions of the Arbitration Law: "For the time being, an arbitral agreement reached after the enforcement of this Law for an individual dispute between labor and management shall be invalid." The provisions of Article 4 of the Supplementary Provisions of the Arbitration Law are bilateral (both the employee and the employer can argue that an arbitral agreement is invalid), and thus cannot obligate either the employee or the employer to accept arbitration. Therefore, if you want to use arbitration should a dispute arise about compensation for an employee's invention in the future, it is advisable for you to include, in the employment contract you sign with your employer, an arbitration clause stating that an arbitral agreement may be rejected and to conclude a new arbitral agreement with your employer when you apply for arbitration. (In other words, explicitly indicate the possibility of arbitration in the employment contract.)
Arbitral Expert Testimony
- What is Arbitral Expert Testimony? What kinds of dispute cases are suitable for settlement by an Arbitral Expert Testimony?
- Arbitration is a system for determining whether or not one of the parties in the dispute has the right to demand from the other party compensation for damages, an injunction, the delivery of goods or the like, and whether or not the parties have a specific interest in each other, thereby attempting to ultimately settle the dispute of the parties. On the other hand, in the Arbitral Expert Testimony system, the opinion of the arbitrators is requested only about the point in dispute to be resolved finally, and the Arbitral Expert Testimony will be used as the basis for the final settlement.
You can request an Arbitral Expert Testimony as to, for example, whether or not a product with a licensee falls under the technical scope of one of the licensor's patents when you negotiate a license agreement. In this case, you may use the Arbitral Expert Testimony as an assumption common to you and your counterpart for determining the scope and conditions of the contract.
Non-disclosure of the arbitration procedures
- We want to settle our problem by keeping it secret from our counterpart because it is related to our intellectual property.
- Unlike a trial, the arbitration procedures are not open to the public. The Center adopts a policy of not publishing anything about its arbitration services, including the details of the arbitration procedures.
Whether or not arbitration procedures are possible without the presence of the respondent
- We want to apply for arbitration but do not want to discuss our circumstances in the presence of our counterpart. Can we ask the arbitrators to hear our counterpart and us separately?
- In the arbitration, the arbitrators will hold hearings on the specified hearing date with the parties either separately or together. Thus, we can conduct the arbitration procedures for you without the presence of the respondent. We can hold a preparatory hearing with only one of the parties present and thus can listen to each of the parties separately. If you have any evidence you do not want to disclose to the respondent, you may ask the arbitrators prior to the presentation of such evidence to keep the specific part of the evidence confidential from the respondent.
Location for accepting applications
- Do you have any other locations for submitting applications for arbitration than Tokyo, Nagoya and Osaka?
- Besides our Tokyo Headquarters, Osaka Branch and Nagoya Branch, the Center also has subbranches in Sapporo, Sendai, Hiroshima, Takamatsu and Fukuoka. Your application will be accepted at any of these locations.
Appointment of arbitrators
- How are arbitrators appointed?
- The Center appoints three arbitrators for each case from a list of arbitrator candidates, including an attorney-at-law and a patent attorney. It is also possible for each of the parties to appoint one arbitrator, and the Center appoints the remaining third arbitrator.
Replacing an arbitrator
- Can we ask the Center to replace an arbitrator in the middle of the arbitration procedures?
- The Center's steering committee will dismiss an arbitrator if requested and if the request is based upon an agreement of the parties. In addition, if the parties have a good reason for doubting the impartiality or independence of any arbitrator, they can apply to the Center to challenge the arbitrator.
Impartiality of arbitrators
- How is the impartiality of arbitrators guaranteed?
- The Center requests the applicant and respondent in the arbitration to present a written designation of particular interested persons, which designates third parties who are supposed to have a special interest in the case. The written designation of particular interested persons is disclosed to the arbitrators, who will present, before taking the position, a written declaration stating that they have no interest in the persons designated by the parties. If the parties have a good reason for doubting the impartiality or independence of any arbitrator, they can apply to challenge the arbitrator.
Specialties of the arbitrators
- How is the impartiality of arbitrators guaranteed?
- The Center requests the applicant and respondent in the arbitration to present a written designation of particular interested persons, which designates third parties who are supposed to have a special interest in the case. The written designation of particular interested persons is disclosed to the arbitrators, who will present, before taking the position, a written declaration stating that they have no interest in the persons designated by the parties.
If the parties have a good reason for doubting the impartiality or independence of any arbitrator, they can apply to challenge the arbitrator.
Arbitrators
- Are the arbitrators all attorneys-at-law or patent attorneys?
- Some of the arbitrators are academic experts, such as university professors. For the specialties and background of the arbitrators, please see the list of candidates for mediators, arbitrators and panelists.
Locations for the arbitration procedures
- Where are the arbitration procedures conducted?
- Arbitration procedures are conducted at the Japan Patent Attorneys Association Building (Benrishi Kaikan), Bar Associations Building (Bengoshi Kaikan), the Center's Nagoya Branch, Kansai Branch and subbranches and other locations designated by the Center or its arbitrators. If the parties have any other location that is more convenient for them considering their address or other circumstances please indicate the location preferences to the arbitrators. If both of the parties agree, telephone conferences and video conferences may also be used.
Applications for arbitration from abroad
- Must applications for arbitration from abroad always be accompanied by a Japanese translation?
- In principle, applications, written answers, preliminary pleadings, etc. in Japanese are the official texts. But as for evidence and data that are presented in foreign languages, the presentation of a Japanese translation may be omitted depending on the opinions of the arbitrators.
Agents for the arbitration application
- We plan to apply for arbitration regarding a patent infringement. We will appoint an attorney-at-law as an agent for the application. Do we need to have the Center's opinion on the appointment?
- You do not need to have the Center's opinion on the appointment of an agent at all. Your corporate lawyer or patent lawyer can be appointed.
Compensation for agents
- We want to apply for arbitration and are wondering how much the agents should be paid.
- The amount of the compensation differs from agent to agent. Please discuss compensation with your agents when you request them to represent you in the application for arbitration. It seems that most agents have set their compensation amounts lower than for a lawsuit.
Arbitral awards
- Please tell us about the arbitral awards in detail.
- After the parties have reached an arbitral agreement, the arbitrators will examine all angles of the problem and make an arbitral award. The arbitral award has the same validity as a final decision of the court. Therefore, once an arbitral award has been given for a dispute, neither of the parties can file a suit for the dispute unless there is a reason for annulment stipulated by law. This point is a characteristic of arbitration. Arbitration does not need much time to reach a final settlement. If any obligation stated in the arbitral award is not fulfilled in the future, after a decision on execution of the arbitrators' decision has been made by a court, execution of the arbitrators' decision is legally binding and required.
Costs of applications for arbitration
- What kind of costs are involved in an application for arbitration?
- When filing an application for arbitration, the applicant pays an application fee of ￥100,000 (+consumption tax). In addition, the parties are each required to pay a hearing fee of ￥100,000(+tax) for each hearing immediately after the procedures for each hearing have ended.
Immediately after the arbitration procedures have ended, the parties each pay a fee of ￥200,000(+tax) for the drafting of the arbitrary award.
When the parties reach a settlement in the arbitration procedures, they each pay a fee of ￥150,000(+tax) for the preparation and witnessing of an agreement on settlement.