This article focuses on Protective Orders in international arbitration where the dispute involves intellectual property rights and high technology subject matter and requires a specific confidentiality regime. Such disputes commonly arise from Technology Transfer Agreements, Research & Development Agreements, and Patent & Know-How Licenses.
The subject matter in such disputes will, typically, involve not only disclosure of technically sensitive confidential documents, but also Product and/or Process Descriptions and site visits. Where, as is often the case, the parties compete in the same technical sector, mechanisms are required to find a balance between adequately protecting party confidentiality in such subject matter, while also providing sufficient disclosure to the counterparty, experts and the Arbitral Tribunal to facilitate the arbitral process.
This article outlines the Institutional Rules which provide the necessary mechanisms to achieve that balance and contains a sample Protective Order which may serve as a useful guide to those faced with resolving a procedural issue of this nature. It also focuses particularly on the WIPO Rules, which have been crafted specifically for disputes involving Intellectual Property Rights and other high technology subject matter.