This article has been written by:
1. Diya Jindal &
2. Taavish Agarwalla

This article has been selected for LLJ Publications.

Abstract

International commercial arbitration has emerged as the principal mechanism for resolving cross-border intellectual property (IP) disputes, driven by the confidentiality, neutrality, technical expertise, and enforceability advantages it offers over fragmented national litigation. Yet arbitration’s suitability for IP disputes remains contested because many jurisdictions treat core IP rights — grant, validity, and registration — as rights in rem reserved to sovereign authorities, while contractual IP disputes arising from licensing, technology transfer, and joint development agreements are increasingly recognised as arbitrable rights in personam. This paper undertakes a comparative doctrinal analysis of the arbitrability of IP disputes across major jurisdictions, including the United States, Switzerland, France, Singapore, China, and India, tracing the evolution of judicial attitudes from the U.S. Supreme Court’s landmark ruling in Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc. to India’s Vidya Drolia and post-Vidya Drolia jurisprudence. It examines the institutional infrastructure supporting IP arbitration, particularly the WIPO Arbitration and Mediation Center, whose caseload has grown by approximately 700 per cent over the past five years, and explores the emergent and contested practice of arbitrating standard-essential patent (SEP) and FRAND royalty disputes against the backdrop of competing court-based global rate-setting in the United Kingdom and China. Using doctrinal and comparative methodology supported by caseload data and illustrative visualisations, the paper identifies persistent fault lines — the in rem/in personam distinction, inconsistent recognition of patent-validity arbitrability, and inter-jurisdictional enforcement uncertainty under the New York Convention’s public-policy exception — and evaluates reform proposals including WIPO-administered SEP panels and harmonised international arbitrability standards. The paper concludes with concrete recommendations for legislative clarification, institutional specialisation, and party-drafting practice, arguing that a calibrated, jurisdiction-sensitive arbitrability framework is essential to realising arbitration’s full potential in global IP dispute resolution.

Keywords

International Commercial Arbitration; Intellectual Property Disputes; Arbitrability; WIPO Arbitration and Mediation Center; FRAND/SEP Licensing; New York Convention 1958; Comparative Arbitration Law; Vidya Drolia; Rights in Rem and in Personam.

I. Introduction

Intellectual property (IP) has become one of the principal assets of the contemporary global economy, embedded in cross-border licensing arrangements, joint research and development ventures, franchise networks, and standard-setting ecosystems. Because IP rights are simultaneously territorial in grant and global in commercial exploitation,[1] disputes concerning patents, trademarks, copyright, trade secrets, and technology-transfer agreements routinely span multiple legal systems, creating acute problems of forum selection, parallel litigation, and inconsistent adjudication. International commercial arbitration has emerged as the preferred mechanism for resolving such disputes, offering party autonomy in the selection of a neutral seat and applicable law, confidentiality, procedural flexibility, and — critically — an internationally enforceable award under the 1958 New York Convention, to which more than 170 States are now party.[2]

The growth of institutional IP arbitration is most vividly illustrated by the caseload of the WIPO Arbitration and Mediation Center (WIPO AMC), established in Geneva in 1994 specifically to provide tailored alternative dispute resolution (ADR) services for IP, innovation, and technology disputes.[3] Since 2016, the WIPO AMC’s caseload has grown by approximately 700 per cent, and in 2025 alone the Center administered 1,461 disputes, a 70 per cent increase over 2024.[4] This growth reflects both the intensifying cross-border character of IP transactions and rising confidence among rights holders, licensees, and technology companies that arbitration can deliver faster, more specialised, and more confidential outcomes than fragmented national litigation.

Notwithstanding this institutional growth, the arbitrability of IP disputes — the threshold question whether a particular category of IP dispute is legally capable of resolution by private arbitral tribunals rather than being reserved to national courts or administrative authorities — remains one of the most doctrinally unsettled areas of international arbitration law. The tension arises because IP rights, unlike ordinary contractual rights, are frequently granted, registered, and revoked by sovereign authorities and carry erga omnes effect: a patent or trademark, once granted or invalidated, affects the rights of the world at large, not merely the parties before the tribunal. Courts across jurisdictions have therefore drawn — with varying degrees of consistency — a distinction between disputes concerning “rights in rem” (generally non-arbitrable, being sovereign or public-interest matters) and disputes concerning “rights in personam” arising out of contracts such as licences, assignments, and joint development agreements (generally arbitrable).[5] [6]

This paper undertakes a comparative doctrinal study of the arbitrability and practical conduct of international commercial arbitration in IP disputes, examining the jurisprudence of the United States, Switzerland, France, Singapore, China, and India, alongside the institutional practice of the WIPO AMC and the ICC. It further examines the specialised and increasingly contentious sub-field of standard-essential patent (SEP) and FRAND (fair, reasonable and non-discriminatory) royalty arbitration, an area in which the tension between court-based global rate-setting — particularly in the United Kingdom and China — and confidential arbitral determination has generated significant doctrinal and geopolitical controversy.[7] [8] [9] The paper proceeds as follows: Part II reviews the existing literature; Part III sets out the comparative doctrinal analysis; Part IV presents findings; Part V offers recommendations; and Part VI concludes.

II. Literature Review

A. Foundational Scholarship on Arbitrability

The theoretical starting point for any study of IP arbitrability is the general doctrine of arbitrability in international commercial arbitration, most comprehensively treated by Born, who identifies arbitrability as a residual public-policy limitation on party autonomy, applied inconsistently across jurisdictions and typically assessed under the law of the seat, the law governing the contract, or the law of the anticipated place of enforcement.[10] The UNCITRAL Model Law on International Commercial Arbitration, adopted in some form by more than eighty jurisdictions, does not itself enumerate non-arbitrable subject matters, leaving the question to national law under Articles 34(2)(b)(i) and 36(1)(b)(i), which permit courts to set aside or refuse enforcement of awards where the subject matter of the dispute is not capable of settlement by arbitration under the law of that State.[11]

B. The U.S. Trajectory: From Presumptive Non-Arbitrability to Mitsubishi

United States jurisprudence has been particularly influential in shaping the global discourse on IP and antitrust arbitrability. In Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., the U.S. Supreme Court held that statutory antitrust claims arising from an international commercial transaction were arbitrable notwithstanding the prevailing domestic-law presumption against arbitrating antitrust disputes, reasoning that concerns of international comity, respect for foreign and transnational tribunals, and the international commercial system’s need for predictability required enforcement of the parties’ arbitration agreement.[12] Although Mitsubishi did not directly concern IP rights, its internationalist reasoning has been extended by commentators to intellectual property, and the Court itself observed, in dicta, that Congress had already expressly authorised arbitration of patent validity and infringement disputes through 35 U.S.C. § 294, enacted in 1983.[13] Scherk v. Alberto-Culver Co., an earlier decision enforcing an international arbitration clause covering securities-fraud claims arising from the sale of trademark rights, laid important groundwork for this internationalist approach.[14]

C. Civil Law Jurisdictions: Switzerland and France

Civil law jurisdictions have generally proved more hospitable to IP arbitrability than common law jurisdictions historically were. Article 177(1) of the Swiss Federal Act on Private International Law provides that any dispute of financial interest may be the subject of arbitration, a formulation broad enough to encompass patent validity and infringement disputes between private parties, since the arbitral award binds only the parties inter se and does not purport to revoke the patent erga omnes.[15] France similarly permits arbitration of IP disputes involving rights that parties may freely dispose of, subject to the mandatory public-policy exclusion under Articles 2059–2060 of the Code of Civil Procedure.[16] Commentary in the Global Arbitration Review Guide to IP Arbitration observes that patent-validity arbitration, while still controversial in Germany and Japan, is increasingly accepted in Switzerland and France precisely because the inter partes effect of an arbitral award is understood not to bind national patent registries.[17]

D. Asia-Pacific Developments: Singapore and China

Singapore’s International Arbitration Act 1994 does not exclude IP disputes from arbitrability, and Singapore has actively marketed itself as an IP arbitration hub through specialised institutional protocols.[18] China presents a markedly different and increasingly assertive posture: Chinese courts permit arbitration of contractual IP disputes (licensing, assignment, infringement damages), but the validity of patents and registration of trademarks remain the exclusive province of the China National Intellectual Property Administration and the courts. More significantly for global commerce, Chinese courts have in recent years asserted jurisdiction to set global FRAND royalty rates and issued anti-suit injunctions restraining parallel proceedings abroad, a practice that has provoked a formal WTO complaint by the European Union alleging non-compliance with transparency obligations under Article 63 of the TRIPS Agreement.[19] [20] [21]

E. India: The In Rem/In Personam Framework and Its Post-Vidya Drolia Evolution

Indian jurisprudence offers a particularly instructive case study of the doctrinal struggle between arbitral efficiency and the sovereign character of IP grants. In Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., the Supreme Court of India articulated the foundational distinction between rights in rem, which must be adjudicated by courts or statutory tribunals, and rights in personam, which are amenable to arbitration, while cautioning that subordinate rights in personam arising from rights in rem have always been considered arbitrable.[22] This nuance was elaborated in Vidya Drolia v. Durga Trading Corp., where the Court held that the grant and registration of patents and trademarks are sovereign or governmental functions with erga omnes effect and are therefore non-arbitrable, while clarifying that this does not render every dispute merely touching upon IP non-arbitrable.[23] Lower courts have since applied this test to uphold the arbitrability of contractual IP disputes: in Eros International Media Ltd. v. Telemax Links India Pvt. Ltd., the Bombay High Court held that not all IP disputes are rights in rem,[24] and in Hero Electric Vehicles Pvt. Ltd. v. Lectro E-Mobility Pvt. Ltd., the Delhi High Court held that a trademark dispute grounded in breach of a licensing contract, rather than in trademark legislation itself, is arbitrable.[25] The Supreme Court’s decision in Emaar MGF Land Ltd. v. Aftab Singh reaffirmed the general rights in rem/in personam dichotomy,[26] and the Court’s more recent decision in K. Mangayarkarasi v. N.J. Sundaresan has been read by commentators as providing further, albeit still incomplete, clarity on trademark arbitrability.[27] Despite this incremental judicial refinement, India’s Arbitration and Conciliation Act, 1996 contains no express statutory provision on IP arbitrability, and reform discussions have identified this as an area requiring legislative intervention.[28] [29]

F. Institutional Practice: WIPO and the Rise of Sector-Specific ADR

A separate strand of literature focuses on institutional practice, particularly the WIPO AMC, whose specialised WIPO Arbitration Rules, WIPO Expedited Arbitration Rules, and WIPO Mediation Rules (effective January 2020) are specifically drafted to accommodate technical evidence, confidentiality of trade secrets, and multi-party licensing structures.[30] [31] Empirical literature, including WIPO’s own caseload reports and the Global Arbitration Review Guide to IP Arbitration, documents both the quantitative growth of the WIPO AMC’s docket and a qualitative shift toward disputes involving artificial intelligence, FRAND licensing, and digital content platforms.[32] [33] The 2021 Queen Mary/White & Case International Arbitration Survey similarly confirms that technology, media, and telecommunications disputes are among the fastest-growing categories of international arbitration.[34]

G. SEP/FRAND Arbitration Literature

A final and increasingly prominent strand of scholarship addresses the arbitrability and desirability of arbitrating FRAND royalty disputes for standard-essential patents. Following the UK Supreme Court’s landmark ruling in Unwired Planet International Ltd. v. Huawei Technologies Co. Ltd., which confirmed that English courts may determine global FRAND licence terms as a condition for withholding a patent infringement injunction,[35] and subsequent decisions in InterDigital v. Lenovo[36] and Optis v. Apple,[37] commentators have debated whether court-based global rate-setting or confidential arbitration offers a more efficient, consistent, and legitimate mechanism for FRAND determination.[38] [39] Only a handful of SEP royalty arbitrations — Nokia v. Samsung, Nokia v. LGE, InterDigital v. Huawei, and Ericsson v. Huawei — have been publicly disclosed, underscoring both arbitration’s confidentiality advantage and the empirical difficulty of studying its outcomes.[40]

III. Analysis and Discussion

A. The Doctrinal Architecture of Arbitrability in IP Disputes

At the core of every jurisdiction’s approach to IP arbitrability lies a structural tension between two features of intellectual property law. First, IP rights are creatures of the State: patents are granted, trademarks registered, and their validity determined by national or regional IP offices exercising sovereign or administrative authority. Second, once granted, IP rights function as freely transferable, licensable, and commercially exploitable private property, generating contractual relationships — licences, assignments, joint development and co-existence agreements, franchise arrangements — that are, in form and substance, indistinguishable from ordinary commercial contracts. Arbitrability doctrine across jurisdictions attempts, with varying success, to separate these two dimensions: the sovereign act of grant, registration, or revocation is generally treated as non-arbitrable, while the contractual dimension of exploitation is generally treated as arbitrable.

This separation is operationalised differently across legal families. Common law jurisdictions, particularly India, have adopted the vocabulary of rights in rem (non-arbitrable, binding “the world at large”) versus rights in personam (arbitrable, binding only the contracting parties).[41] [42] Civil law jurisdictions such as Switzerland and France instead ask whether the dispute concerns matters “of financial interest” or rights “that parties may freely dispose of,” a formulation that functionally reaches a similar inter partes/erga omnes distinction without importing common law property vocabulary.[43] [44] The United States lacks a single controlling doctrine but relies on a combination of statutory authorisation — 35 U.S.C. § 294 for patent validity and infringement arbitration — and the general federal policy favouring arbitration articulated in Mitsubishi and Scherk.[45] [46] [47]

Three consequences follow from this comparative pattern. First, contractual IP disputes — breach of licence, royalty non-payment, ownership disputes arising from employment or assignment agreements, joint development disputes — are now arbitrable in the overwhelming majority of jurisdictions surveyed, including India post-Vidya Drolia.[48] [49] Second, patent-validity arbitration inter partes (i.e., an arbitral determination binding only the parties, without purporting to revoke the patent on the public register) is increasingly accepted in the United States and in leading civil law seats such as Switzerland, but remains contested or unavailable in China and India, where validity determinations are treated as inseparable from the sovereign grant function.[50] Third, trademark and design registration/ownership disputes occupy an intermediate and still-unsettled position: several jurisdictions, India prominent among them, continue to treat trademark ownership and registration disputes as rights in rem even while permitting arbitration of trademark licensing and assignment disputes arising from the same underlying mark.[51] [52] [53]

Table 1: Comparative Arbitrability of IP Disputes Across Select Jurisdictions

Jurisdiction	Governing Framework	Contractual IP Disputes	Patent Validity (inter partes)	Key Authority
United States	FAA; 35 U.S.C. § 294	Arbitrable	Arbitrable (statutory)	Mitsubishi Motors (1985)
Switzerland	Swiss PILA art. 177	Arbitrable	Arbitrable	PILA art. 177(1)
France	C.P.C. arts. 2059-2060	Arbitrable	Arbitrable	GAR Guide to IP Arbitration
Singapore	International Arbitration Act 1994	Arbitrable	Generally arbitrable	IAA 1994, s.5
China	PRC Arbitration Law / CNIPA framework	Arbitrable	Non-arbitrable	OPPO v. Nokia (2023)
India	Arbitration and Conciliation Act, 1996	Arbitrable (post-Vidya Drolia)	Non-arbitrable	Vidya Drolia v. Durga Trading (2021)
South Africa	Statutory bar	Non-arbitrable	Non-arbitrable	Statutory exclusion

The comparative picture in Table 1 and Figure 1 (below) illustrates the resulting fragmentation. No two jurisdictions surveyed adopt an identical arbitrability matrix, which creates material risk for parties drafting multi-jurisdictional IP arbitration clauses: an award rendered on a patent-validity issue may be fully enforceable in Switzerland yet vulnerable to a public-policy challenge under Article V(2)(b) of the New York Convention in a jurisdiction that treats validity as inherently non-arbitrable.[54] [55]

Figure 1: Comparative Arbitrability of IP-Related Issues Across Select Jurisdictions

B. Institutional Infrastructure: The WIPO Arbitration and Mediation Center

The growth of the WIPO AMC provides the clearest empirical evidence of arbitration’s expanding role in IP dispute resolution. Since inception in 1994, the Center has administered more than 5,200 IP, innovation, and technology disputes, with the overwhelming majority filed in the past five years.[56] In 2025 alone, the Center supported 1,461 disputes — a 70 per cent increase over 2024 — driven substantially by growth in its Co-Administration Program with national IP and copyright offices (+87 per cent) and in cases filed under the WIPO Mediation, Arbitration and Expert Determination Rules (+42 per cent).[57] As Figure 2 illustrates, this growth has been broad-based across the Center’s service lines, including a record 6,282 UDRP domain-name cases in 2025, the busiest year in the twenty-five-year history of that service.[58]

Figure 2: WIPO Arbitration and Mediation Center Caseload Growth, 2025 vs. 2024

The subject-matter composition of WIPO AMC cases (Figure 3) also reveals a significant structural shift: copyright and digital content disputes now constitute 71 per cent of cases administered under the WIPO Mediation, Arbitration and Expert Determination Rules, driven by disputes involving online platforms, content-sharing services, artificial intelligence training data, and video games/esports, with trademarks accounting for 23 per cent and patents and other commercial IP matters accounting for the balance.[59] This composition reflects both the digitisation of the creative economy and the accessibility of WIPO’s expedited and lower-value procedures to small and medium-sized enterprises, which accounted for 59 per cent of parties to WIPO AMC disputes in 2025, an 18 per cent increase over 2024.[60]

Figure 3: Subject-Matter Distribution of WIPO AMC Disputes (2025)

Two features of the WIPO framework merit particular analytical attention. First, the WIPO Arbitration Rules provide robust confidentiality mechanisms empowering tribunals to issue protective orders restricting access to trade secrets and sensitive technical information to designated individuals — a feature of particular importance in patent and technology-transfer disputes where evidentiary discovery routinely implicates commercially sensitive know-how.[61] Second, the WIPO Center’s settlement statistics — 70 per cent of mediations and 33 per cent of arbitrations concluding in settlement — suggest that WIPO ADR functions not merely as an adjudicative alternative to litigation but as a structured negotiation mechanism, particularly valuable in ongoing licensing relationships where preserving the commercial relationship, rather than merely resolving a discrete dispute, is a party priority.[62]

C. Standard-Essential Patents and the FRAND Arbitration Debate

The arbitration of FRAND royalty disputes for standard-essential patents (SEPs) represents the most doctrinally and geopolitically contested frontier of IP arbitration. SEP holders commit, through standard-setting organisations such as ETSI, to license their patents on fair, reasonable, and non-discriminatory terms; disputes over what constitutes a FRAND rate, and over the availability of injunctive relief pending determination of that rate, have generated a proliferating and increasingly incompatible body of national court jurisprudence.

The UK Supreme Court’s 2020 decision in Unwired Planet International Ltd. v. Huawei Technologies Co. Ltd. confirmed that English courts may determine the terms of a global FRAND licence — covering not only UK patents but the SEP holder’s entire portfolio — as the price of withholding a UK patent infringement injunction against an implementer found to infringe.[63] This approach was subsequently applied and refined in InterDigital Technology Corp. v. Lenovo Group Ltd.[64] and Optis Cellular Technology LLC v. Apple Retail UK Ltd., the latter producing strikingly divergent royalty outcomes between the High Court and Court of Appeal on materially similar facts, with the Court of Appeal ultimately awarding a royalty roughly seven times the first-instance figure.[65] [66] Chinese courts have responded assertively: in December 2023, the Chongqing First Intermediate People’s Court delivered China’s first global FRAND rate determination in OPPO v. Nokia,[67] building on the Supreme People’s Court’s earlier confirmation, in cases including Huawei v. Conversant and Xiaomi v. InterDigital, that Chinese courts may issue anti-suit injunctions restraining parties from pursuing parallel foreign FRAND or infringement proceedings.[68] This assertion of extraterritorial jurisdiction prompted the European Union, in January 2025, to initiate WTO dispute-settlement consultations against China alleging, inter alia, non-compliance with the transparency obligations of Article 63 of the TRIPS Agreement in relation to the publication of SEP rate-setting judgments.[69]

Against this backdrop of jurisdictional competition and forum-shopping, arbitration offers a potentially attractive alternative: unlike litigation, an arbitral SEP royalty determination can, by party agreement, bind both the SEP holder and the implementer to a single global rate without engaging the territorial and comity complications inherent in court-based global rate-setting, while preserving confidentiality of sensitive licensing comparables.[70] Only four cellular SEP portfolio arbitrations are known to have been publicly disclosed — Nokia v. Samsung, Nokia v. LGE, InterDigital v. Huawei, and Ericsson v. Huawei — a fact that itself demonstrates arbitration’s confidentiality advantage while limiting the development of transparent, precedent-based FRAND valuation methodology.[71] The WIPO Center has responded by expanding its FRAND-specific mediation practice, having facilitated more than 95 SEP-related mediations involving parties from over twenty jurisdictions, roughly half of them Asia-based,[72] and commentators have proposed the creation of a dedicated WIPO Global SEP Arbitration Panel, maintaining a pre-vetted roster of technical, legal, and economic experts to enhance the perceived neutrality and methodological consistency of FRAND arbitration.[73] The UPC’s Patent Mediation and Arbitration Centre and ICC SEP-specific rules represent parallel institutional efforts in the same direction.[74]

D. Enforcement and the Public-Policy Exception under the New York Convention

Even where an IP dispute is arbitrable at the seat of arbitration, enforcement of the resulting award in a third State remains subject to Article V(2)(b) of the New York Convention, which permits a competent authority to refuse recognition and enforcement where doing so would be contrary to the public policy of that country, and to Article V(2)(a), which permits refusal where the subject matter is not capable of settlement by arbitration under the law of the enforcing State.[75] Because national arbitrability standards for IP disputes are, as demonstrated above, materially divergent, an award rendered on a patent-validity issue that is arbitrable at a Swiss seat may face a public-policy or non-arbitrability challenge upon enforcement in a jurisdiction — India or China, for instance — that treats patent validity as an inalienable sovereign function.[76] [77] [78]

IV. Findings

1. Global convergence on contractual arbitrability, persistent divergence on sovereign-function arbitrability. Across every jurisdiction surveyed, contractual IP disputes — licensing, assignment, royalty, joint development, franchise, and co-existence disputes — are now arbitrable. However, jurisdictions remain sharply divided on whether IP grant, registration, and validity determinations may be arbitrated even inter partes, with the United States, Switzerland, France, and Singapore generally permissive, and China, India, and (categorically) South Africa restrictive.[79] [80] [81] [82] [83]
2. The in rem/in personam test, while analytically useful, produces inconsistent results in application. Indian jurisprudence exemplifies both the doctrine’s utility in distinguishing sovereign grant from contractual exploitation and its unpredictability in application, with courts reaching divergent conclusions on functionally similar trademark licensing disputes depending on how the claim is pleaded.[84] [85] [86] [87]
3. Institutional specialisation is driving caseload growth more than legislative reform. The approximately 700 per cent five-year growth in WIPO AMC caseload and the 70 per cent year-on-year increase in 2025 are attributable primarily to expanding institutional infrastructure — the Co-Administration Program, eADR platforms, sector-specific rules — rather than to statutory clarification of arbitrability, suggesting that procedural accessibility and technical specialisation are, in practice, more significant drivers of IP-ADR uptake than doctrinal certainty.[88] [89]

V. Recommendations

1. Legislative clarification of IP arbitrability. Jurisdictions such as India, whose arbitrability doctrine rests entirely on judicial interpretation of the in rem/in personam distinction, should consider amending the Arbitration and Conciliation Act, 1996, to expressly codify the arbitrability of contractual IP disputes and clarify the (non-)arbitrability of validity determinations, following the model of 35 U.S.C. § 294 in the United States.[90] [91] [92]
2. Careful jurisdiction-sensitive clause drafting. Parties negotiating cross-border IP licensing, technology-transfer, and joint development agreements should select an arbitral seat whose arbitrability law aligns with the law of anticipated enforcement jurisdictions, expressly limit tribunal remedies to inter partes contractual relief, and avoid drafting broad arbitration clauses that could be read to encompass validity or registration disputes in restrictive jurisdictions.[93] [94]
3. Expansion of WIPO-style institutional specialisation. Other regional and national arbitral institutions should emulate the WIPO AMC’s sector-specific rules, expedited procedures, and co-administration partnerships with national IP offices, particularly in emerging-market jurisdictions where SME access to IP ADR remains limited.[95] [96]
4. Development of a dedicated global SEP/FRAND arbitration mechanism. Standard-setting organisations, patent pools, and industry associations should consider adopting model arbitration clauses referring FRAND royalty disputes to a specialised panel — whether a WIPO Global SEP Arbitration Panel or an equivalent ICC/UPC mechanism — with pre-vetted technical, legal, and economic expertise, to reduce reliance on inconsistent, extraterritorial court-based rate-setting and the attendant risk of anti-suit and anti-anti-suit injunction warfare.[97] [98]

VI. Conclusion

International commercial arbitration has proved itself an increasingly indispensable, though not yet fully settled, mechanism for resolving cross-border intellectual property disputes. The institutional evidence — most vividly the WIPO Arbitration and Mediation Center’s near-exponential caseload growth — demonstrates that rights holders, licensees, and technology enterprises across sectors and firm sizes increasingly prefer confidential, specialised, and internationally enforceable arbitral resolution over fragmented multi-jurisdictional litigation.[99] Yet the doctrinal foundations of IP arbitrability remain unevenly developed. The comparative analysis undertaken in this paper demonstrates that while contractual IP disputes are now broadly arbitrable across major jurisdictions, the arbitrability of sovereign-function determinations — patent validity, trademark registration, and, increasingly, global FRAND royalty rates — remains contested, jurisdiction-dependent, and a significant source of enforcement risk under the New York Convention.[100] [101] [102]

India’s post-Vidya Drolia jurisprudence, China’s assertive extraterritorial FRAND rate-setting, and the widening gap between court-based and arbitration-based SEP dispute resolution together illustrate that the “lessons from global jurisdictions” are not lessons of convergence but of managed, calibrated divergence. For arbitration to realise its full potential in the IP domain, legislative clarification, institutionally specialised dispute-resolution infrastructure, and careful jurisdiction-sensitive clause drafting must proceed in tandem — a task to which lawmakers, arbitral institutions, and transactional counsel must now turn with renewed urgency.

References

A. International Instruments

1. Convention Establishing the World Intellectual Property Organization, July 14, 1967, as amended Sept. 28, 1979.
2. Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 U.N.T.S. 299.
3. Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 330 U.N.T.S. 38 (New York Convention).
4. UNCITRAL Model Law on International Commercial Arbitration (1985), as amended 2006.
5. WIPO Arbitration Rules (effective Jan. 1, 2021); WIPO Mediation Rules and WIPO Expedited Arbitration Rules (effective Jan. 1, 2020).

B. National Statutes

6. Federal Arbitration Act, 9 U.S.C. §§ 1-16, 201-208 (U.S.).
7. 35 U.S.C. § 294 (U.S.) (patent validity/infringement arbitration).
8. Swiss Federal Act on Private International Law, 1987, art. 177 (Switz.).
9. Code de procédure civile, arts. 2059-2060 (Fr.).
10. International Arbitration Act 1994 (Act 143A of 1994) (Sing.).
11. The Arbitration and Conciliation Act, 1996, No. 26, Acts of Parliament, 1996 (India).

C. Cases

12. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985) (U.S.).
13. Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974) (U.S.).
14. Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 (India).
15. Vidya Drolia v. Durga Trading Corp., (2021) 2 SCC 1 (India).
16. Eros International Media Ltd. v. Telemax Links India (P) Ltd., 2016 SCC OnLine Bom 2179 (India).
17. Hero Electric Vehicles (P) Ltd. v. Lectro E-Mobility (P) Ltd., 2021 SCC OnLine Del 1058 (India).
18. Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751 (India).
19. K. Mangayarkarasi v. N.J. Sundaresan (Supreme Court of India, 2026).
20. Unwired Planet International Ltd. v. Huawei Technologies Co. Ltd., [2020] UKSC 37 (U.K.).
21. InterDigital Technology Corp. v. Lenovo Group Ltd., [2023] EWHC 539 (Pat), aff’d [2024] EWCA Civ 743 (U.K.).
22. Optis Cellular Technology LLC v. Apple Retail UK Ltd., [2023] EWHC 1095 (Ch) (U.K.).
23. Huawei Technologies Co. Ltd. v. ZTE Corp., Case C-170/13, EU:C:2015:477 (CJEU).
24. OPPO v. Nokia (Chongqing First Intermediate People’s Court, China, Dec. 4, 2023).
25. Xiaomi Communication Technology Co. Ltd. v. InterDigital, Inc. (Wuhan Intermediate People’s Court, China, 2020).

D. Books, Articles, and Reports

26. Gary B. Born, International Commercial Arbitration (3d ed., Kluwer Law International 2021).
27. WIPO Arbitration and Mediation Center, WIPO Caseload Summary (2026), https://www.wipo.int/amc/en/center/caseload.html.
28. WIPO Arbitration and Mediation Center, WIPO ADR Highlights 2025, https://www.wipo.int/amc/en/center/summary2025.html.
29. WIPO Arbitration and Mediation Center, WIPO ADR Highlights 2024, https://www.wipo.int/amc/en/center/summary2024.html.
30. Aceris Law LLC, International Arbitration and Intellectual Property (IP) Disputes (2021).
31. The Guide to IP Arbitration (4th ed.), Global Arbitration Review (2026).
32. The Guide to IP Arbitration (4th ed.), “Obtaining Interim and Permanent Relief in International IP Arbitration,” World Trademark Review (2026).
33. Queen Mary University of London & White & Case LLP, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World (2021).
34. WilmerHale, FRAND Quarterly: Navigating the Global SEP Landscape (Jan. 2024).
35. Berkeley Center for Law and Technology, Global FRAND Rate Setting, Anti-Anti-Suit Injunctions, and the Licensing Negotiation Group Debate After Unwired Planet (2026).
36. “Arbitration of FRAND Disputes in SEP Licensing,” World Trademark Review (n.d.).
37. “Beyond FRAND: Can Arbitration Standardize Royalty Determination in SEP Disputes?”, Mediate Guru (Dec. 2025).
38. “Arbitrability of Trademark Disputes: An Analytical Study of the Judicial Decisions in India,” IJLSSS (June 2025).
39. “WIPO Arbitration: A Promising Solution to the Injunction Chaos of FRAND Disputes,” Washington University Law Review (2023).
40. World Trade Organization, China — Enforcement of Intellectual Property Rights, Request for Consultations by the European Union, WT/DS611 (Jan. 2025).

[1]Convention Establishing the World Intellectual Property Organization, art. 2(viii), July 14, 1967, as amended Sept. 28, 1979.

[2]Convention on the Recognition and Enforcement of Foreign Arbitral Awards, art. V(2)(a)-(b), June 10, 1958, 330 U.N.T.S. 38 [hereinafter New York Convention].

[3]WIPO Arbitration and Mediation Center, WIPO Caseload Summary, available at https://www.wipo.int/amc/en/center/caseload.html (last visited July 15, 2026).

[4]WIPO Arbitration and Mediation Center, WIPO ADR Highlights 2025, available at https://www.wipo.int/amc/en/center/summary2025.html (last visited July 15, 2026).

[5]Booz Allen and Hamilton Inc. v. SBI Home Finance Ltd., (2011) 5 SCC 532 (India).

[6]Vidya Drolia v. Durga Trading Corp., (2021) 2 SCC 1 (India).

[7]Unwired Planet International Ltd. v. Huawei Technologies Co. Ltd., [2020] UKSC 37.

[8]OPPO v. Nokia (Chongqing First Intermediate People’s Court, China, Dec. 4, 2023).

[9]World Trade Organization, China — Enforcement of Intellectual Property Rights, Request for Consultations by the European Union, WT/DS611 (Jan. 2025).

[10]Gary B. Born, International Commercial Arbitration § 6.03 (3d ed., Kluwer Law International 2021).

[11]UNCITRAL Model Law on International Commercial Arbitration (1985), as amended in 2006, arts. 34(2)(b)(i), 36(1)(b)(i).

[12]Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614 (1985).

[13]35 U.S.C. § 294 (2018) (authorising agreements to arbitrate disputes concerning patent validity or infringement).

[14]Scherk v. Alberto-Culver Co., 417 U.S. 506 (1974).

[15]Swiss Federal Act on Private International Law, 1987, art. 177(1) (Switz.).

[16]Code de procédure civile [C.P.C.] arts. 2059-2060 (Fr.).

[17]The Guide to IP Arbitration (4th ed.), “Recent Trends in WIPO Arbitration and Mediation,” Global Arbitration Review (2026).

[18]International Arbitration Act 1994 (Act 143A of 1994), s. 5 (Sing.); see also The Guide to IP Arbitration (4th ed.), Global Arbitration Review (2026).

[19]Xiaomi Communication Technology Co. Ltd. v. InterDigital, Inc. (Wuhan Intermediate People’s Court, China, 2020), discussed in “WIPO Arbitration: A Promising Solution to the Injunction Chaos of FRAND Disputes,” Washington University Law Review (2023).

[20]OPPO v. Nokia (Chongqing Ct.), supra note 8.

[21]WTO, China — Enforcement of IP Rights, supra note 9.

[22]Booz Allen v. SBI Home Finance, supra note 5.

[23]Vidya Drolia v. Durga Trading Corp., supra note 6.

[24]Eros International Media Ltd. v. Telemax Links India (P) Ltd., 2016 SCC OnLine Bom 2179 (India).

[25]Hero Electric Vehicles (P) Ltd. v. Lectro E-Mobility (P) Ltd., 2021 SCC OnLine Del 1058 (India).

[26]Emaar MGF Land Ltd. v. Aftab Singh, (2019) 12 SCC 751 (India).

[27]K. Mangayarkarasi v. N.J. Sundaresan (Supreme Court of India, 2026), as discussed in “Trademark Arbitrability Revisited: The Supreme Court’s Mangayarkarasi Verdict,” Arbitration & Corporate Law Review (Mar. 2026).

[28]The Arbitration and Conciliation Act, 1996, No. 26, Acts of Parliament, 1996 (India).

[29]The Guide to IP Arbitration (4th ed.), “Obtaining Interim and Permanent Relief in International IP Arbitration,” World Trademark Review (2026).

[30]WIPO Arbitration Rules (effective Jan. 1, 2021), arts. 1, 54.

[31]WIPO Mediation Rules and WIPO Expedited Arbitration Rules (effective Jan. 1, 2020).

[32]WIPO AMC, ADR Highlights 2025, supra note 4.

[33]GAR Guide to IP Arbitration (4th ed.), Recent Trends, supra note 17.

[34]Queen Mary University of London & White & Case LLP, 2021 International Arbitration Survey: Adapting Arbitration to a Changing World (2021).

[35]Unwired Planet v. Huawei, supra note 7.

[36]InterDigital Technology Corp. v. Lenovo Group Ltd., [2023] EWHC 539 (Pat), aff’d [2024] EWCA Civ 743.

[37]Optis Cellular Technology LLC v. Apple Retail UK Ltd., [2023] EWHC 1095 (Ch).

[38]“Arbitration of FRAND Disputes in SEP Licensing,” World Trademark Review (n.d.).

[39]“Beyond FRAND: Can Arbitration Standardize Royalty Determination in SEP Disputes?”, Mediate Guru (Dec. 2025).

[40]WTR, Arbitration of FRAND Disputes in SEP Licensing, supra note 38.

[41]Booz Allen v. SBI Home Finance, supra note 5.

[42]Vidya Drolia v. Durga Trading Corp., supra note 6.

[43]Swiss PILA, art. 177(1), supra note 15.

[44]C.P.C. arts. 2059-2060 (Fr.), supra note 16.

[45]Mitsubishi Motors v. Soler Chrysler-Plymouth, supra note 12.

[46]35 U.S.C. § 294, supra note 13.

[47]Scherk v. Alberto-Culver Co., supra note 14.

[48]Vidya Drolia v. Durga Trading Corp., supra note 6.

[49]Hero Electric v. Lectro E-Mobility, supra note 25.

[50]GAR Guide to IP Arbitration (4th ed.), Recent Trends, supra note 17.

[51]Eros International v. Telemax Links, supra note 24.

[52]Hero Electric v. Lectro E-Mobility, supra note 25.

[53]“Arbitrability of Trademark Disputes: An Analytical Study of the Judicial Decisions in India,” IJLSSS (June 2025).

[54]New York Convention, art. V(2), supra note 2.

[55]GAR Guide to IP Arbitration (4th ed.), Recent Trends, supra note 17.

[56]WIPO AMC, Caseload Summary, supra note 3.

[57]WIPO AMC, ADR Highlights 2025, supra note 4.

[58]Id.

[59]Id.

[60]Id.

[61]WIPO Mediation/Expedited Arbitration Rules, supra note 31.

[62]WIPO AMC, Caseload Summary, supra note 3.

[63]Unwired Planet v. Huawei, supra note 7.

[64]InterDigital v. Lenovo, supra note 36.

[65]Optis v. Apple, supra note 37.

[66]Mediate Guru, Beyond FRAND, supra note 39.

[67]OPPO v. Nokia (Chongqing Ct.), supra note 8.

[68]Xiaomi v. InterDigital (Wuhan Ct.), supra note 19.

[69]WTO, China — Enforcement of IP Rights, supra note 9.

[70]WTR, Arbitration of FRAND Disputes in SEP Licensing, supra note 38.

[71]Id.

[72]GAR Guide to IP Arbitration (4th ed.), Recent Trends, supra note 17.

[73]Mediate Guru, Beyond FRAND, supra note 39.

[74]Berkeley Center for Law and Technology, Global FRAND Rate Setting, Anti-Anti-Suit Injunctions, and the Licensing Negotiation Group Debate After Unwired Planet (2026).

[75]New York Convention, art. V(2), supra note 2.

[76]Swiss PILA, art. 177(1), supra note 15.

[77]Vidya Drolia v. Durga Trading Corp., supra note 6.

[78]GAR Guide to IP Arbitration (4th ed.), Recent Trends, supra note 17.

[79]Swiss PILA, art. 177(1), supra note 15.

[80]C.P.C. arts. 2059-2060 (Fr.), supra note 16.

[81]International Arbitration Act 1994 (Sing.), supra note 18.

[82]Vidya Drolia v. Durga Trading Corp., supra note 6.

[83]GAR Guide to IP Arbitration (4th ed.), Recent Trends, supra note 17.

[84]Booz Allen v. SBI Home Finance, supra note 5.

[85]Eros International v. Telemax Links, supra note 24.

[86]Hero Electric v. Lectro E-Mobility, supra note 25.

[87]K. Mangayarkarasi v. N.J. Sundaresan, supra note 27.

[88]WIPO AMC, ADR Highlights 2025, supra note 4.

[89]WIPO Arbitration and Mediation Center, WIPO ADR Highlights 2024, available at https://www.wipo.int/amc/en/center/summary2024.html (last visited July 15, 2026).

[90]35 U.S.C. § 294, supra note 13.

[91]Arbitration and Conciliation Act, 1996 (India), supra note 28.

[92]WTR Guide to IP Arbitration (4th ed.), Interim/Permanent Relief, supra note 29.

[93]Born, International Commercial Arbitration, supra note 10.

[94]QMUL & White & Case, 2021 Int’l Arbitration Survey, supra note 34.

[95]WIPO AMC, ADR Highlights 2025, supra note 4.

[96]WIPO Arbitration Rules, supra note 30.

[97]Berkeley CLT, Global FRAND Rate Setting, supra note 74.

[98]Mediate Guru, Beyond FRAND, supra note 39.

[99]WIPO AMC, ADR Highlights 2025, supra note 4.

[100]New York Convention, art. V(2), supra note 2.

[101]Vidya Drolia v. Durga Trading Corp., supra note 6.

[102]OPPO v. Nokia (Chongqing Ct.), supra note 8.