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Humboldt-Universität zu Berlin - International Dispute Resolution

Humboldt-Universität zu Berlin | Faculty of Law | International Dispute Resolution | Guest lecture by Prof. Dr. Siegfried H. Elsing, 23 November 2018

Guest lecture by Prof. Dr. Siegfried H. Elsing, 23 November 2018

“Do all IP law issues raise a concern of arbitrability in a dispute?” This question took a center stage when Prof. Dr Siegfried H. Elsing, Partner at Orrick, Herrington & Sutcliffe, spoke to the IDR LL.M. students on 23 November 2018 at Humboldt University of Berlin.

The lecture started with a brief introduction on how intellectual property rights are created and then moved on to the broader issues often raised in IP disputes, e.g. existence and validity, ownership, assignment, and infringement. Interestingly, it was pointed out that historically, parties have been hesitant to refer IP disputes to arbitration for many reasons including better flexibility in litigation, the lack of an appeal, loss of face, and the combative culture of Silicon Valley businesses. Prof. Elsing kept the discussion interactive.

Further, the different approaches to the arbitrability of the IP disputes in different jurisdictions were explored, i.e. from the full-arbitrability of IP disputes to the non-arbitrability. The discussion then moved on to consider how arbitration might have a unique place in FRAND disputes and FRAND disputes’ overlap with the anti-trust law in light of the CJEU decision in C-170/13 Huawei.

Soon the lecture came to an end and the floor was opened up to the audience for questions. Interestingly, it was clear that there was a trend towards the increased use of international investment arbitration for the protection of IP rights and the biggest takeaway for future practitioners from the lecture was that while arbitrability of IP rights must be seen as a hurdle to the effective use of arbitration to resolve IP disputes, there are promising approaches to overcoming it.


Kanwar Vivswan, IDR LL.M. Candidate