UPC Mediation Rules

Lisbon Bridge

Photo Matt Perich
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Art 35 (1) of the Unified Patent Court Agreement establishes a patent mediation and arbitration centre with seats in Ljubljana and Lisbon. Its purpose is to provide facilities for mediation and arbitration of patent disputes falling within the scope of that Agreement. The Centre is required by art 35 (3) to establish Mediation and Arbitration Rules and by art 35 (4) to draw up a list of mediators and arbitrators to assist the parties in the settlement of their dispute.

On 15 Feb 2016 the Preparatory Committee published the latest draft Mediation Rules for the Centre. These Rules will be incorporated into every mediation agreement. Art 2 (1) of the draft Rules states that the mediation service of the Centre offers support in the settlement of disputes relating to European patents and European patents with unitary effects for which the Unified Patent Court  is exclusively competent. It will be open to the parties include any other disposable right or obligation factually or legally linked to the dispute into mediation by virtue of art 2 (3).

A mediation will be initiated by the parties (or one of them) lodging a request through a form on the Centre's website setting out the following information:

"a) the request that the dispute be referred to mediation under the Rules;
b) the names in full, addresses, telephone numbers, e-mail addresses or any other contact details of the parties and their representatives;
c) a succinct summary of the facts giving rise to the dispute including an indication of the intellectual property rights involved and the nature of any technology involved and if possible an assessment of its value;
d) a statement as to whether the parties have already agreed upon mediation and if so annexing a copy of the agreement;
e) any agreement as to the time limits for conducting the mediation, as to the language of the mediation, as to the location of any physical meetings or as to the joint nomination of a mediator or to the attribution to the Centre of the nomination of a mediator
f) any document or information which the applicant considers relevant to the dispute."

The possibility of settling a dispute by mediation or arbitration is one of the matters that a rapporteur must explore in the interim procedure under art 52 (2) of the Agreement. If the request is made by one side only the other parties will be allowed up to 15 days to the request.

The parties may choose whomsoever they wish to be their mediator (art 6 (1) of the draft Rules) but in the absence of an agreement the Centre may propose a list of not less than 5 names (art 6 (1) (a)). If the parties cannot agree one of those names the Centre will appoint a mediator after consulting  the parties and respecting their requirements or the specificities of the dispute (art 6 (1) (c)).

Art 7 (1) of the draft Rules provides:

"The mediator is a neutral, impartial and independent third person, devoid of powers of imposition upon the parties to the mediation, who assists the parties in their attempt to obtain a final settlement on the subject matter in dispute. In particular he may not legally or otherwise represent or consult the parties or third persons on legal issues, which are or have been the subject matter of the mediation proceedings. The mediator shall disclose to the parties and the Centre all possible conflicts of interests or other circumstances likely to give rise to doubts as to his independence or impartiality without undue delay."

Art 7 (4) requires mediators to adhere to the principles of the European Code of Conduct for Mediators.

Parties may be represented or assisted in their dealings with the mediator. Representatives must be mandated in writing. The names and addresses of mediators are to be communicated to the mediator and exchanged with the other parties immediately after the appointment of the mediator.

The parties may decide the place and the language in which the mediation shall take place. If they cannot agree the location it will be decided by the Centre. If they cannot agree on the language it will be in the language in which the patent was granted by the EPO. The mediation shall be conducted in the manner agreed by the parties or determined by the mediator. Each party shall cooperate in good faith with the mediator throughout the mediation proceedings. The mediator shall promote the settlement of the dispute in an orderly and appropriate manner having regard to the wishes of the parties. He shall listen and help the parties identify underlying causes of the conflict, the apparent interests and the consequences of an absence of settlement agreement. The mediator may make proposals for the resolution of the dispute but shall have no authority to impose a settlement on the parties. The agreement and outcome of the mediation are decided by the parties. The mediation shall continue until the parties reach an agreement or the time fixed for the mediation expires.

All proceedings will take place in secret. Art 15 (1) of the draft Rules requires every participant in the mediation to respect the confidentiality of the proceedings to be reinforced if necessary by confidentiality agreements. With a number of limited exceptions nothing that is discussed in the mediation may be used or disclosed in any other proceedings and nobody can be compelled to give evidence in any proceedings.

The Centre's registration fee and the mediator's fees and expenses will be shared equally by the parties unless they agree some other basis.

If anyone wants to discuss this article further or mediation or the Unified Patent Court in general, he or she should call me on 020 7404 5252 during office hours or get in touch through my contact form.