INTRODUCTION
Intellectual Property is the creation of the human mind and the capacity to create new things, and IPR governs these creations and provides the creator with exclusive rights to their creations for a specific plant hold of time. These creations are usually related technologies, ideologies etc, which can be sold, bought, owned, and bequeath, whilst in the case of another resource which tends to exhaust and is tangible but intellectual property have the opposite properties,
The Law protects rights and will be litigated in courts if the situation comes, but usually, the creators tend to approach the traditional courts and waste their money and resources until the dispute settles hence overlooking other forms of proceedings to settle the dispute. Arbitration and mediation have always been the more commencement way to settle matters but the conventionality of this resolution is yet to get accustomed to this field of law, and especially in a country like India. Resolving disputes in traditional courts takes up months and years whilst the Alternative Dispute Resolutions (ADR) tend to resolve the matter in confidentiality and provide numerous other benefits.
ALTERNATE DISPUTE RESOLUTION (ADR)
“I realized that the true fiction of a lawyer was to unite parties… A large part of my time during the 20 years of my practice as a lawyer was occupied with bringing out a private compromise of hundreds of cases. I lost nothing thereby- not even money, certainly not my soul.”
– Mahatma Gandhi
‘DELAYED JUSTICE IS BURIED JUSTICE, SPEEDY JUSTICE IS NEEDY JUSTICE’
As per the statistics, the pending cases in India are crossing the mark of 40 Million as of 2021 which is 19% more than the previous year pending cases which is very evident from the fact that we have almost 1.38 Billion as of 2021 and courts in India are overburdened with the enormous amount of cases. During the current pandemic, the public seeking justice faced many difficulties including conducting the hearing smoothly or delayed hearings or even continuous adjournments of the matters which gave rise to inconsistencies o and increased the plight of the victim whose right has already been infringed. The process of ADR or Alternate Dispute Redressal is the need of an hour to provide people with the justice they seek on time without muddling across the walls of the court along with huge stacks of pages of their matter in their hand which our forefathers of the Indian Constitution didn’t see this coming and neither they wanted this while drafting the world’s lengthiest rule book.
HISTORY OF ADR
The process of ADR is not foreign to us; it is well prevalent in ancient India as well as in villages and small towns of India. Earlier there used to be Kulas, traits used to live in union families with their clans and when there was a caste system ubiquitous in the society. The disputes among the kulas used to be settled by the chief of the family, clan or Kula. Likewise, when there was some trade, corporations or Shrines among the people, they used to designate a person to settle the matters within the Shrenis. In 1899 during the colonial time The Indian Arbitration Act, 1899 was introduced to give rise to alternate dispute mechanisms in India. The act relied on the English legislation as its power source. Thereafter another gift of colonialism to India was the CPC which was introduced in 1908 and the ADR mechanism found its place in Section 89 of the second schedule which gave enormous powers to the court to refer or transfer the disputes to the ADR cycle. The Code of Civil Procedure, 1859 in its sections 312 to 325 deals with the arbitration in suits while sections 326 and 327 provided for arbitration without court intervention. The Code of Civil Procedure (Act 5 of 1908) repealed the Act of 1882. The Code of Civil Procedure, 1908 has laid down that cases must be encouraged to go in for ADR under section 89(1).
The endorsement for the ADR techniques also can be found in the fact that the Geneva convention of 1937 was also consulted and adopted by India and acted as parallel legislation which was introduced in the form of The Arbitration (Protocol and Convention) Act, 1937. Furthermore, the development of ADR techniques and hence their existence by the introduction of the Indian arbitration act 1899 the abolishment of section 89 which was included in the CPC second schedule and replacement of that by the arbitration act 1940 gave rise to a new era of ADR techniques in the dispute resolution. Section 12 of the Industrial Dispute Act, 1947 deals with conciliation as the precondition for collective bargaining. Similarly Section 23 of the Hindu Marriage Act, 1955 recognised the necessity for ADR. However, Family Courts Act, 1984 shows a greater emphasis on ADR rather conciliatory approach for settlement of the matrimonial dispute. The present Arbitration and Conciliation Act, 1996 makes provision for settlement of disputes/differences utilizing ADR mechanism.
In the post-independence era after our forefathers had completed the enormous task of drafting the constitution and when it came being the ADR techniques also change their shape and became bigger some trade dispute redressal techniques can also be found in articles 14 and 21 of the Indian Constitution since this article talks about equality for law and the right to life and personal liberty respectively arbitration or conciliation matters, are dealt with under provisions of arbitration and conciliation act 1996. The Lok Adalat also talks about the ADR techniques under section 20 clause one of the legal service authorities act 1987.
METHODOLOGY OF ADR
The alternative dispute resolution techniques contain various types of dispute resolution methods such as negotiation, mediation, collaborative law, conciliation, Lok Adalat and arbitration. The ADR method is mainly focused on problem-solving but not on declaring winners or losers and therefore we can say that the ADR techniques can be also known as a ‘win-win strategy’.
The ADR techniques are a big step when it comes to reviving the overburdened judiciary because the ADR nowadays is helping like a big brother to the judiciary. A big chunk of cases is transferred from the courts to the process of ADR because in ADR we get speedy justice without any hassle. ADR has already formed its roots deep into the ground but still, some sectors are ambiguous when it comes to alternative dispute resolution techniques or options such as IPR or intellectual property rights law. Since as the name suggests the IPR law consist of the intangible property rights such as copyright patent trademark watermark etc. .ith the help of ADR, the parties to the suit can also agree or consent to settle the dispute in a single procedure involving a right that is protected or secured in a plethora of different countries. The basic advantages of the alternative dispute resolution techniques are that the parties to the suit can mutually decide between themselves how the dispute can be resolved and also this is not essentially required to follow the path of the traditional way of litigation. Also, neutrality plays a very important role in alternative dispute methods because the parties enjoy their freedom and right to choose a neutral person whom they want to. The expertise and confidentiality are also maintained in the alternative dispute redressal forums since it is the most crucial part of any dispute resolution. The IPR law has not discovered the method of alternative dispute redressal in detail and thereby this area of law is kind of not well aware of these techniques and still follow the traditional part of litigation. As in the changing world, the methods of providing justice have already been changed. It is imperative and essential for us to opt for speedy methods of justice rather than jangling inside the walls of the court.
MEDIATION
Mediation is a voluntary, binding process in which an impartial and neutral mediator facilitates disputing parties in reaching a settlement.A mediator does not impose a solution but creates a conducive environment in which disputing parties can resolve all their disputes. Mediation is tried and tested alternative method of dispute resolution. Litigants participating in the mediation process have unequivocally endorsed it.
MEDIATION IS
A structured process where a neutral person uses specialized communication and negotiation techniques to resolve the dispute in accordance with the parties. A process of facilitating parties in resolving their Disputes through a settlement process whereby disputing parties arrive at a mutually acceptable agreement.
WHO CAN MEDIATE?
Any person who goes under the required 40 hours program as stipulated by the mediation and conciliation committee of the supreme court, can be a mediator.
MEDIATION PROCESS
• Introduction:- Mediator introduces himself to the parties, explains the mediation process, and establishes his neutrality. He explains the ground rules and initiates the confidential process of dispute resolution.
• Joint Session:- Mediator gathers information about the factual background and interests of the parties, establishes interaction between them, and creates a suitable environment for an amicable settlement.
• Individual (Separate) Sessions:- When it becomes necessary, a mediator allows the disputing parties to further explain their grievances, continue to gather information,persuades individual parties to share confidential information and helps them to create options for an amicable settlement.
• Agreement:- Mediator confirms and clarifies the terms of settlement and reduces the settlement into a clear, complete, concise, and binding agreement.
QUALITIES OF MEDIATOR
• The mediator is impartial and neutral.
• Manages interaction between the parties.
• Facilitates communication between the parties.
• Identifies barriers to an agreement.
• Identifies the interests of the parties.
• Develops terms of the agreement
INTELLECTUAL PROPERTY RIGHTS
Before dwelling on the intricacies of the IPR law and provisions it is very important for us to understand what is IPR law. IPR as the name suggests it is the intellectual property rights or also known as intangible property rights which means that what we cannot see or touch or feel on that also we can claim our right. This law includes copyright, patent, trademark watermark. These rights have a certain time limit till which we can enjoy the ownership or claim on these rights and after the lapse of time, we need to reapply for these rights. The IPR rights allow the owners or inventors of patents, copyrights, or even trademarks to secure their work from being used by another person also these rights are mentioned in article 27 of the universal declaration of human rights which says that the right to benefit all to take advantage from the protection of moral and material interest resultant of authorship of literary or any scientific or creative production. The basic requirement to register or own right, Trademark, the patent for that matter is novelty and creation or discovery by novelty we mean that something novel which is out of the box thinking and has never been applied or made before. IPR law is something very trendy these days and very demanding also because in an era of marketing and consumer satisfaction new technologies along with new brands logos and discoveries for that matter are taking place in the market and to protect those inventions or novelty it is very pertinent to make the content secure in the name of the owner so that nobody can use it while being in the name of the owner. In India some legislations involving IPR laws are India’s Patents act of 1970, patent rules and Patent Amendment rules in 2005 set the laws governing patents in India.
Some other legislations involving intellectual property rights in India or trademarks act 1999, the copyright act 1957 the designs act 2000 the geographical indication of goods act 1999, the protection of plant varieties and farmers rights act 2001, the information technology act, 2000. The patent was first introduced into the form of intellectual property rights via the Indian patents and designs act, 1911. The same act was overtaken by the patents act, 1970. The TRIPS agreement is indeed the game-changer agreement because this agreement had been implemented with minimal standards for the protection of intellectual property rights. After taking into note various legislations which are connected with IPR laws in India it is very pertinent for us to look into the jurisdiction of the disputes involving IPR law in India and generally the district courts enjoy the pecuniary jurisdiction on the civil side when it comes to IPR disputes. But certain high courts such as Calcutta Madras Shimla Kashmir Jammu and Bombay also enjoys the powers to hear the disputes but can only be entertained after a certain price limit of the dispute such as the court of the first instance in New Delhi the Delhi High Court can only Hear the suit if the value of the suit is more than US$150,000/- High courts also enjoys jurisdiction in vogue for the fundamental rights and safeguard of them jurisdiction may also depend upon the relevant territory of the court and pecuniary subject matter of the dispute. Talking about the present overburdened judiciary, we need to look into the objectives of arbitrability step-by-step from the impact that arbitral awards may not have on non-consenting parties. As the area of IPR is increasing and enhancing its technology Day by day we need to look into the person’s well-being and productive nature and the current ADR system is not well prevalent in the IPR law realm and it must be there so as to secure the interest of the citizens and since it is an IPR dispute it should be expected to settle before time because nobility can’t be attended quickly. ADR is the way of speedy redressal of conflicts and it is much more needed to explore the area of ADR dispute resolution in IPR laws also. Also, intellectual property rights come under the category of rights as right in rem and not under res Integra category which means that a right in rem cannot be arbitrated. The Delhi High Court took the opposite stance in the case of Mundipharma AG v. Wockhardt Ltd., in this case, the provisions of Chapter XII of the copyright act, 1957 which contained civil remedies in the matter of infringement of the right of copyright. In this case, it was held that every proceeding which is arising under this particular chapter with respect of infringement of copyright or any other enforcement or ride about copyright act shall be instituted in the district court having jurisdiction. The major point of contention, in this case, lies in the fact that the court specifically mentions that in a matter where copyright or any other IP right has been infringed then by the way of injunction and damages or account as remedies cannot be a subject matter of the arbitration. The Delhi High Court again in the case of Ministry of Sound International V. M/S Renaissance Partners held that the conflicts or matters related to IPR law can be settled through arbitration upon the reasoning that there is no objection or bar on settling the matters through arbitration about IPR.
The Supreme Court of India has also observed upon the matter of arbitration about IPR law is specific and in the case of Vikas Sales Corporation V. Commissioner of Commercial Tax the court observed and examined the question as to whether the import license is in the territory of the purview of goods definition the Supreme Court also while analyzing this also held that the rights to copyrights can be termed as right in rem
After this very eminent observation by the Supreme Court of India the commercial courts, commercial division, and commercial Apple it division of High Court’s act 2015 a very important view was taken into consideration that every conflict pertaining to IP and Law can be settled through arbitration as it was mentioned also in section 2 (1)(f) of the arbitration and conciliation act 1996 read with section 2(c)(xvii) of the commercial act.
It is also noteworthy that the arbitration act includes international commercial arbitration which means that any dispute of commercial nature which is arising between any party either Indian or international the term commercial has not been defined in the arbitration act but it has been placed in the commercial activity. IPR disputes are basically commercial disputes hence can be resolved through arbitration also section 10 of the commercial act mentions the medium of resolution of disputes about IP via arbitration without specifically using the word arbitration.
ADR IN IPR
The number of disputes in IPR is growing boundlessly and will continue to consider the age we are living in, An era of technology which is never going to cease us to be amazed, with variant innovations being counted every day, the scope of the IPR has grown drastically, leading to more disputes relating to copyright issues, plagiarism, monetary loss, etc, which would seek justice from traditional courts, leading months of going through trial and expending large facets of resources, hence the need for Alternate Dispute resolutions take up the space entitling, the justified conclusion to the parties. Especially when the dispute is international then it’s a neutral ground is to be maintained as not to let any party have the advantages of the home ground, Arbitration and mediation plays a major role in settling these disputes, One of the advantages for IP groups to opt for the ADR rather than wasting resources on Conventional trials. listed below are numerous advantages why a party should consider ADR before trial courts.
CLOISTERED STRATEGY
In court proceedings involving global IP issues, a large number of approaches in multiple wards may be used, with the risk of contradictory findings. Through ADR, Parties can resolve these global disputes, by involving a right that is protected in multiple countries within a single system, saving the cost and the manpower of going through court trials, evading the multi-jurisdictional lawsuits, therefore, saving courts time
NEUTRAL GROUNDS
In Multinational disputes, ADR can help the parties set a neutral ground, in which no party would have the advantage of home grounds and support resulting in a fair means of negotiation and settlement.
ADROITNESS
ADR allows the parties to choose an unbiased mediator/arbitrator who expertise in their fields, hence dealing with matters professionally without giving any advantage to any party involved
Confidentiality-
ADR is considered the safest option for the parties involved, as the dispute is resolved privately in the presence of an arbitrator in a room, therefore leading to no foliage of reputation, as parties being centric it gives immense importance to secrecy and confidentiality
SETBACKS OF UTILIZING ADR
ADR is likewise not flawless. It has a few confinements:
1. Some exceptional disputes requires to be resolved in formal litigation/trials
2. The choice of the judge is authoritative just on the gatherings concerned.
3. ADR is a collaboration to resolve a matter hence a cooperation is necessary
4. The Decision of the arbitrator is the conclusive decision for both the parties
A BRIEF UNDERSTANDING OF NEGOTIATION AND OTHER ALLIED FORMS OF ADR IPR
Negotiation is a process wherein 2 or more parties sit together and solve the amicable dispute with a general consensus and try to reach a settlement or resolution together. Usually, in Negotiation, the parties come to a settlement or resolution by discussing the matter or case between themselves along with their respective lawyers. The mode of negotiation in the settling disputes is a very feasible and the least time-consuming mode of resolution of conflicts as parties arrive on to a general consensus while keeping into consideration some mitigating factors revolving around the matter. To proceed via negotiation in an IP right infringement case it has been advised mostly to go for negotiation while suing or contesting a suit. The negotiation gives the parties to the suit some terms to settle the matter and the parties are supposed to either accept or to contest the terms further by knocking on the door of the court.
Similarly in the case of resolving disputes through another means of ADR in which an intermediary, a neutral one helps the parties in the dispute to discuss the reason of conflict, the issue of the matter and then upon discussing extensively reach on to a settlement of the dispute. The process of mediation is a nonbinding process and an open ended process which can be controlled by both the parties. Certain steps are to be taken in the due process of mediation starting from the starting pleadings for mediation, then the appointment of a neutral mediator, talks between the parties relating to the dispute, first meeting thereafter is to be held thereafter subsequent meetings are to be held.
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Thereafter the terms are put forth by the mediator or gather information about a particular issue. Then evaluation and then conclusion. These are some of the allied practices involved in ADR and for IP disputes can be a perfect fit for these techniques since they involve lesser costs and of course less time consuming.
CONCLUSION:
ADR System’s adaptability is admirable which permits gatherings to examine disputes and come up with a resolving solution to the dispute that may or may not be accessible by the traditional courts, In Cases of IPR disputes, parties are centric around monetary cures or demand explicit functionalities as a cure like an affirmation of a non-l-execution of legally binding commitments or encroachment of rights. Other demands like secrecy of the issue, arrangement of security, etc.
For the resolution of most IP infringement claims, ADR, particularly arbitration and mediation, is demonstrably preferable to litigation. ADR is less expensive, takes less time, is of greater quality, is more private, and has more flexibility. The advantages of resolving commercial conflicts through arbitration rather than litigation are well known. For a long time, arbitration has been a popular method of resolving disputes in international trade. IIt addresses the parties’ need for a peaceful, low-cost, and quick resolution of their disagreement by providing them with a neutral forum, a competent tribunal of their choice who is knowledgeable about the subject area, and a system that protects their privacy and confidentiality. From start to finish, the arbitral process is supposed to be efficient and speedy. The disputing parties can tailor the proceedings to their specific needs; specialists in the field can be appointed as arbitrators, and the arbitration’s confidentiality can be protected by a confidentiality agreement. be the subject of a confidentiality agreement.