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Associate Thibaud Roujou de Boubée examines the World Intellectual Property Organization’s Arbitration and Mediation Center’s updated Arbitration Rules.

The author wishes to thank the WIPO Arbitration and Mediation Center for its insight on the update to the Arbitration Rules.

Since 1 July 2021, the World Intellectual Property Organization’s Arbitration and Mediation Center (the “WIPO Center”) has been applying an updated version of its Arbitration Rules (the “new rules”).

Although changes to the WIPO Arbitration Rules are fairly limited and mainly follow the tracks of updates made by other leading international arbitration institutions,^[1] they are also revealing of the institution’s policies.

The changes reflect an intent to facilitate access to arbitration (1.); to provide further transparency as regards third party funding (2.) and to formalise the use of digital tools (3.).

1. Facilitating access to arbitration

The new rules now provide for a 25% discount on the WIPO Center’s administrative fees (e.g. registration and administration fees) for small and medium entities of less than 250 employees (“SMEs”).^[2]

As in previous updates to its Arbitration Rules, the WIPO Center is looking to extend its scope of targets through this 25% discount. Under its 2020 rules, the WIPO had supported parties which had registered their rights under international instruments or providers and seekers of environmentally friendly technologies.^[3]

In 2021, the WIPO Center is extending this discount to SMEs, which will be an essential component of global economic recovery worldwide. According to WIPO Director General Daren Tang, SMEs currently “account for 90% of all companies worldwide and 70% of global employment”.^[4] Intellectual Property (“IP”) rights are often a core component of SME businesses and IP litigation costs can represent a significant burden for SMEs.

By extending the 25% fee reduction to SMEs, the WIPO Center is aiming to help SMEs save costs which could be allocated to the development of their business.^[5] As SMEs represent 37% of users of the WIPO Center’s services, this is a welcome update which is expected to facilitate SMEs’ access to arbitration.^[6]

2. Providing further transparency as regards third party funding

In light of the economic position faced by many companies due to the pandemic, arbitration centres have been anticipating the growth of third party funding. Along the lines of the 2021 ICC Arbitration Rules,^[7] the new WIPO rules have therefore also evolved to include mandatory disclosure of third party funding.^[8]

This change is expected to ensure greater transparency when it comes to arbitrator independence and impartiality, thereby reducing the risk of annulment of an arbitration award in the event of conflicts of interest.

However – although the new WIPO rules require a prompt disclosure of third party funding^[9] – they leave the possibility for a party to choose a third party funder in the course of the proceedings open, which may cause conflicts with the Arbitral Tribunal.

The issue of whether a party should be denied its right to choose a conflicted third party funder to prevent derailing proceedings therefore remains open.^[10]

Another development induced by the disclosure of third party funding can also be a potential increase in security for costs applications from opposing parties.^[11]

3. Formalising the use of digital tools

Finally, as do a majority of arbitration institutional rules^[12] and soft law instruments,^[13] the new WIPO rules reflect an increasingly digitalized practice of arbitration. Electronic communications and filings are the new default option^[14] and remote meetings and hearings via “videoconference or using online tools” are expressly provided for.^[15]

Regardless of the pandemic, this evolution is unsurprising given that approximately 30% of WIPO arbitrations are already administered through WIPO’s online case management tool eADR, introduced in 2005.^[16]

The main features of eADR include a single online docket, automatic email notifications of filings, a search tool, a message board and a function offering a case overview.^[17]

eADR does not however include an integrated virtual hearing interface but the WIPO Center can provide logistical support to set up entirely virtual hearings with online tools (notably WebEx).^[18]

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[1]         What the new ICC and LCIA rules tell us about the concerns of users, Global Arbitration Review, 17 November 2020, I. Alexopoulos, F. Poloni, R. Cable and T. Roujou de Boubée.

[2]         2021 WIPO Arbitration Rules, Schedule of Fees and Costs Arbitration/Expedited Arbitration, para. 9.

[3]         2020 WIPO Arbitration Rules, Schedule of Fees and Costs Arbitration/Expedited Arbitration, para. 8 : “A 25% reduction on the Center’s registration and administration fees applies 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, or WIPO Green technology”

[4]         WIPO’s Arbitration and Mediation Center Launches New Effort to Support SMEs, WIPO News, 22 June 2021.

[5]         WIPO ADR Highlights: Second Quarter 2021, 13 July 2021.

[6]         WIPO’s Arbitration and Mediation Center Launches New Effort to Support SMEs, WIPO News, 22 June 2021.

[7]                Article 11(7) of the 2021 International Chamber of Commerce Arbitration Rules.

[8]                Articles 9 and 11 of the 2021 WIPO Arbitration Rules.

[9]                “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.” (Articles 9 and 11 of the 2021 WIPO Arbitration Rules).

[10]               The 2021 ICC Rules envision such a possibility in the event of a change of Counsel by granting the Arbitral Tribunal the right to ”take any measure necessary to avoid a conflict of interest of an arbitrator arising from a change in party representation”, see Article 17(2) of the 2021 International Chamber of Commerce Arbitration Rules.

[11]               Article 48 of the 2021 WIPO Arbitration Rules.

[12]               See for example, What the new ICC and LCIA rules tell us about the concerns of users, Global Arbitration Review, 17 November 2020, I. Alexopoulos, F. Poloni, R. Cable and T. Roujou de Boubée.

[13]               See for example, Never change a winning team: New IBA rules on the taking of evidence, Le Monde du Droit, 15 April 2021, F. Poloni and T. Roujou de Boubée.

[14]               Article 4(a) of the 2021 WIPO Arbitration Rules.

[15]               Article 40, 49(g), 55(a) and (b) of the 2021 WIPO Arbitration Rules.

[16]               https://www.wipo.int/amc/en/eadr.

[17]               https://www.wipo.int/amc/en/eadr/wipoeadr/.

[18]               https://www.wipo.int/amc/en/eadr/checklist/index.html.