Arbitration is an alternative method of dispute resolution whereby parties agree to submit their dispute to an arbitral tribunal.
Use of arbitration?
In theory, it is possible to resort to arbitration in any dispute between two private persons (2059 Civil Code):
- via the introduction in a contract of an arbitration clause (1442 CPC) or
- through the signing of a compromise (1447 CPC).
Arbitrability of patent litigation
The position of the problem
Nevertheless, arbitrability is subject to some limitations that need to be analyzed:
- theexclusivity of jurisdiction of the article L615-17 CPI does she oppose arbitration?
- are the patents in an interesting area thepublic order French (2060 Civil Code)?
- are the rights submitted to arbitration available (2059 Civil Code)?
Analysis of the three problems
The problem of exclusivity of jurisdiction
Since the 1968 law, the article L615-17 CPI, paragraph 2 explicitly provides that the exclusivity of jurisdiction (provided for in paragraph 1) is not grounds for rejecting arbitration.
The problem of public order
If the letter of the article 2060 Civil Code indicates that the areas excluded from arbitration are the "interesting" areas of public order, the Court of Cassation specified that it was also necessary that public order had been violated (C. Cass. Civ. sect. com., November 29, 1950, Tissot case).
Therefore, there is no reason to think that, as a matter of principle, public policy may oppose the arbitration of patents.
The problem of the availability of rights
This question is legally complex.
Nevertheless, it seems relatively certain thatan arbitral tribunal can not annul, with effect erga omnes, a patent : the absolute effect of a cancellation decision is a cause of inactivity (the contractual nature of the arbitration precludes the effects of the arbitrators' decision from impacting third parties).
Examples of possible arbitration
The judges validated the use of arbitration in the following areas:
- paternity of the invention (Court of Appeal of Paris, 1st c., October 31, 2001);
- concerning the analysis of counterfeiting;
- concerning contracts relating to the exploitation of patents (Court of Appeal of Paris, 1ch., RG n ° 05/10577, February 28, 2008);
- concerning the validity of the title incidentally (Court of Appeal of Paris, 1ch., RG n ° 05/10577, February 28, 2008), ie without cancellation with effect erga omnes (eg by one exception, simply to dismiss the opponent's claim).
Effects of the arbitral award
The arbitral award has effect only between the parties (1165 Civil Code).
Therefore, the arbitration decision is not opposable to third parties and they can not invoke it.
For example, an arbitration decision annulling a patent will have no effect erga omnes (Court of Appeal of Paris, 1ch., RG n ° 05/10577, February 28, 2008).
Res judicata authority
The arbitral award has the authority of res judicata (1484 CPC), in relation to the challenge it settles.
Therefore, the party who is denied its claims (even if presented by way of exception) can not represent them before the national court (1351 Civil Code).
In principle, the sentence should be executed spontaneously by the parties.
An arbitral award is not enforceable, that is, notimperium : if a party is reluctant to execute the arbitral award, a procedure ofexequatur must be triggered (1487 CPC) by the most diligent party.
This exequatur is in principle before the judge of the execution of the Court of High Instance in the jurisdiction of which the award was made (1487 CPC): this one is not necessarily the TGI of Paris ...
What we have just said is especially relevant between French because, as you will have noticed, I have not cited any treaty or any international convention ... But fortunately, I will write an article about international arbitration.