The Use of Arbitration for Solving International Intellectual Property Disputes: Analytical and Comparative Perspectives of the U.S and South Korea for the Recommendation for Cambodia

Abstract

Abstract The Use of Arbitration for Solving International Intellectual Property Disputes: Analytical and Comparative Perspectives of the U.S and South Korea for the Recommendation for Cambodia

MAO SREYMOM Intellectual Property, Department of Law The Graduate School of Seoul National University

Intellectual Property is the branch of the law which protects some of the finer manifestations of human achievement. What is more, intellectual property rights are territorial (territoriality principle). In other words, those types of rights are governed by individual countries. However, when it involves international boundaries, many jurisdictions are intricate. On the one hand, when intellectual property disputes are handled by way of litigation, the complexity of intellectual property litigation arises and this includes jurisdictional issues, choice of law, lis pendes, and the recognition and enforcement of foreign judgments. In addition, Intellectual Property litigation is commonly known as a highly complex, unpredictable and expensive method. However, with the global economy, intellectual property has progressively become one of the most valuable asset of b usiness and the sheer number of transactions involving intellectual property such as the rising trend in license/sublicense agreements, joint venture agreements, employment contracts and business acquisition agreements has increased dramatically at both the domestic and international level. Owing to this, it is no wonder that Alternative Dispute Resolution like Arbitration is an attractive technique in solving international intellectual property disputes.

On the other hand, when using arbitration in solving international intellectual property disputes some hurdles may arise. The first thing that really matters is Arbitrability. Many intellectual property rights must be registered if they are to subsist, the process of registration involving the filing of an application with a state authority, such as a patent office . As a result, this creates state involvement, public policy and local sovereign power and for disputes relating to grants, the validity and extent of the rights granted should be decided only by the authority that granted the rights . In such a case, it leads to the question of which intellectual property rights are arbitrable and which are not in certain jurisdictions.

Different legal system and legislation may affect the way certain countries govern the issue of resolving intellectual property disputes. Hence, it is ideal to understand different the approaches of different countries in dealing with this particular issue. And this contributes to the objectives of this research. Through the means of analyzing and comparing, there are two main aims of this paper. The first aim is to offer an insight into how different jurisdictions, mainly the U.S and South Korea, which are the leading nations in intellectual property protection , use arbitration in solving transnational intellectual property disputes and govern their regulatory framework regarding arbitrability issue in intellectual property dispute. And from the experience gained by the U.S and South Korea in the practice of this particular area, the second aim relates to how Cambodia, an inexperienced country in the area of arbitration in intellectual property, can learn and possibly may take on a practical application of the use of arbitration in solving such disputes in the near future.

This paper will proceed with analysis divided into five separate chapters. The first chapter is Intellectual Property Rights Issues which will touch upon several issues related to intellectual property rights in general including the notion of intellectual property, types of intellectual property, international agreements related to intellectual property and international vs. national aspects of intellectual property. The second chapter is Arbitration of Intellectual Property Disputes which will discuss three main points such as the benefits of international arbitration in intellectual property disputes, the limitation of international arbitration in intellectual property disputes and the issue of arbitrability of intellectual property disputes. The following chapter three will begin the discussion on Legal and Regulatory Framework of Intellectual Property Dispute in the U.S illustrating issues which include U.S arbitration regulations, how the U.S govern and regulate the issue of arbitrability of intellectual property disputes and the recognition and enforcement of the award of such disputes. Following this, chapter four concerns the Legal and Regulatory framework of Intellectual Property Disputes in Korea. This chapter will demonstrate the regulation regarding arbitration in Korea, regulation on arbitrabilty, the contemporary status of intellectual property dispute arbitration and the recognition and enforcement of the award. Last but not least, the last chapter is about Legal and Regulatory Framework of Intellectual Property and Arbitration in Cambodia which will give an insight into the intellectual property system of Cambodia and typical mechanism in dealing with intellectual property disputes, a general overview on the practice of arbitration and the necessity to adopt the practice of arbitration in solving disputes related to intellectual property along with recommendation to achieve such a goal.