This article provides a high-level overview of the competitive advantages, as well as the current challenges, that arbitration entails as a mechanism for the resolution of transnational intellectual property disputes. It builds upon the notion that globalization and the unitization of intellectual property law favor a dispute resolution mechanism without the traditional geographical barriers of national authorities and courts, even if intellectual property registrations and licenses are often secondary to the existence of actual legal rights. Stating that public policy (orden público or ordre public) issues are no longer, in and of themselves, obstacles for arbitrability, the requirement of consent of respondents or defendants (including that of state entities and national authorities), the difference amongst national and applicable substantive laws, and the transnational enforcement and annulment of arbitral awards, may represent practical obstacles for the effective use of arbitration. The article proposes conceptual solutions to those challenges, such as the possibility of mandatory institutional arbitration, expedited on-line arbitration for small cases, and the full recognition of foreign substantive laws and international Lex Mercatoria through the enforcement of arbitral awards, provided only that the awards are not in conflict with the ordre public or public policies of the place of enforcement.
Iurgium [previously Spain Arbitration Review]