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Key developments on Аrbitгаtion of Intellectual Property Rights in Hong Kong
Switzerland had already considered disputes concerning intellectual property rights (“IPR”), including disputes regarding IPR infringement and validity, to be arbitrable at a time when most other jurisdictions took a more restrictive approach. Today, many jurisdictions accept at least certain types of IPR disputes to be capable of being resolved by arbitration. However, with a few exceptions (e.g. in the U.S. Patent Act and in the Belgian Patent Act), most jurisdictions do not provide for an express statutory basis for the arbitrability of IPR disputes.
This has recently changed in Hong Kong. An amendment to the Hong Kong Arbitration Ordinance that entered into effect on 1 January 2018 now clarifies that IPR disputes (including disputes regarding validity, infringement or entitlement) are arbitrable under Hong Kong law as between the parties (inter partes). The revised law also clarifies that the enforcement of an arbitral award deciding on an IPR dispute cannot be refused on the ground of being contrary to public policy. The amendment will be applicable to arbitrations commenced on or after 1 January 2018 or to arbitrations commenced prior to this date if the parties choose to apply the amendments to their arbitrations. The amendment increases the attractiveness of Hong Kong as a seat of an arbitration concerning IPR issues. This should be taken into account when negotiating arbitration clauses in license agreements involving Asian parties.
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