TIME- AND COST-EFFICIENT DISPUTE RESOLUTION OPTIONS FOR FLA MEMBERS
Franchising agreements may give rise to disputes on issues that include, for instance, impact-encroachment, franchisee development rights, renewal of franchise, alleged underreporting of fees owed and customer service issues. Although such disputes can be brought before national courts, litigation is not always well equipped to take account of the particularities of this type of disputes because the issues are often complex and require specialized expertise. Alternative dispute resolution procedures (ADR) can be particularly advantageous to resolve franchising and licensing disputes out of court, especially contractual disputes involving parties from different jurisdictions.
FLA and the World Intellectual Property Organization Arbitration and Mediation Center (WIPO Center) have established a collaboration to raise awareness of ADR options to court litigation available to stakeholders in the franchising and licensing areas. FLA members enjoy special rates when using the WIPO Center dispute resolution services.
WIPO ARBITRATION AND MEDIATION CENTER
With offices at Maxwell Chambers in Singapore and in Geneva, Switzerland, the WIPO Center is a neutral, international and non-profit dispute resolution provider that offers ADR options, in particular mediation and arbitration, to enable private parties to efficiently settle their domestic or cross-border disputes.
WIPO ADR procedures are organized to stimulate positive opportunities for party settlement. Almost 70% of the mediation procedures administered by the WIPO Center have been settled. Even in arbitration, 40% of WIPO cases settle before any formal decision is issued.
WIPO RULES AND NEUTRALS
WIPO Mediation, Arbitration, Expedited Arbitration and Expert Determination Rules are generally suitable for all commercial disputes, and additionally feature provisions to address specific needs in intellectual property disputes, namely provisions on confidentiality and technical evidence. Parties can draw upon a database of over 1,500 independent WIPO arbitrators, mediators and experts from about a hundred jurisdictions, including Singapore. WIPO’s database covers expertise in a wide range of intellectual property areas.
WIPO MODEL CLAUSES
Referral to WIPO dispute resolution procedures is consensual. To facilitate such party agreement, the WIPO Center provides recommended contract clauses (for the submission of future disputes under a particular contract) and submission agreements (for existing disputes).
WIPO experience shows that the most frequently used WIPO ADR model clause is “Mediation Followed, in the Absence of a Settlement, by (Expedited) Arbitration”. Parties can include the following in their contracts:
"Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be submitted to mediation in accordance with the WIPO Mediation Rules. The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language].
If, and to the extent that, any such dispute, controversy or claim has not been settled pursuant to the mediation within  days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO [Expedited] Arbitration Rules. Alternatively, if, before the expiration of the said period of  days, either party fails to participate or to continue to participate in the mediation, the dispute, controversy or claim shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO [Expedited] Arbitration Rules. [The arbitral tribunal shall consist of [a sole arbitrator][three arbitrators].]* The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim referred to arbitration shall be decided in accordance with the law of [specify jurisdiction]." (* The WIPO Expedited Arbitration Rules provide that the arbitral tribunal shall consist of a sole arbitrator.)
REDUCED FEES FOR FLA MEMBERS
The costs of ADR procedures depend on different factors, including the amount in dispute and the complexity of the case. In all cases, however, the WIPO Center believes that ADR should be cost-effective. In consultation with parties and neutrals, the WIPO Center ensures that fees charged in WIPO ADR procedures are appropriate to the circumstances of the dispute.
For reduced WIPO Mediation, (Expedited) Arbitration and Expert Determination rates for FLA members, please click here.
WIPO MATERIALS ON IP MANAGEMENT
- In Good Company – Managing Intellectual Property Issues in Franchising
A guide that explores the various phases of the franchise process and focuses on the importance of managing IP assets.
- IP for Business
A practical publication addressing topics related to the protection and commercialization of IP assets for business success.
- IP PANORAMA
A handful e-learning tool designed to help SMEs utilize and manage IP in their business strategy.
- IP Advantage – Case studies on Intellectual Property
A database that provides a one-stop gateway to case studies that chronicle the IP experiences of entrepreneurs, inventors, creators and researchers from across the globe, including in the franchising and licensing areas.