Arbitrating IP Disputes: Navigating the intersection of innovation and adjudication

Written by Andre Yeghiazarian and Avi Bhandari, Dispute resolution and IP lawyer at gunnercooke LLP

As the post London International Disputes Week (LIDW) 2025 blues set in. we remember how the city this year reaffirmed its status as a global hub for arbitration. This year’s theme, “Innovation in Dispute Resolution: Navigating Global Risks,” feels especially timely against the backdrop of increasingly complex intellectual property (IP) disputes. In a world shaped by rapid technological change and cross-border commerce, the traditional courtroom is no longer always the most effective or appropriate forum for resolving IP conflicts. Instead, arbitration is emerging as a compelling alternative offering flexibility, confidentiality, and international enforceability.

Why Arbitrate IP disputes?

• Confidentiality: IP disputes often involve sensitive information, such as proprietary technologies or confidential business strategies. Arbitration proceedings are private, ensuring that trade secrets and other confidential information remain protected from public disclosure. This confidentiality is particularly valuable in industries where maintaining a competitive edge is paramount.

• Expert arbitrators: Unlike generalist judges, arbitrators can be selected for their specific expertise in IP law or the relevant technical field. This specialisation can lead to more informed decisions and a better understanding of complex IP issues.

• Enforceability: Arbitral awards are generally easier to enforce internationally, thanks to the New York Convention.

• Flexibility and efficiency: In IP disputes, where issues are often highly technical and time-sensitive, arbitration’s procedural flexibility is a major advantage. This can result in faster resolutions compared to traditional litigation, which is often bogged down by procedural formalities and court schedules. This adaptability is particularly valuable in cross-border IP conflicts, where parties may seek neutral forums and enforceable decisions without getting entangled in multiple national court systems.

The sweet spot (and limits) to IP arbitration

Several types of IP disputes lend themselves particularly well to arbitration, especially when the priority is speed, confidentiality, and subject-matter expertise. Disputes stemming from licensing agreements like disagreements over royalty payments or the geographic scope of licensed rights, are classic examples. So are conflicts arising out of technology transfer arrangements, where nuanced understanding of the underlying tech can make or break a decision. Joint ventures and collaborations, particularly those involving shared IP contributions, also benefit from arbitration’s more flexible structure and the ability to handpick technically proficient arbitrators. Allegations of trade secret misappropriation, which often require preserving sensitive business information, are also well-suited to the privacy and tailored procedures of arbitration.

However, before jumping into arbitration, it is worth remembering that not all IP battles can or should be arbitrated. The biggest limitation is on issues of validity. In many jurisdictions, patents and trade marks are considered public rights, and their validity can only be ruled on by national courts or IP offices. Even if an arbitral tribunal does weigh in, that ruling often only applies inter partes i.e., between the parties to the arbitration and does not affect the broader legal status of the IP right.

Then there is the issue of non-signatories to the arbitration agreement. Arbitration is a consensual process. If a third party like a downstream licensee or a rogue infringer is not a party to the agreement, they cannot be compelled into arbitration. Finally, public policy can also act as a brake. Some jurisdictions, such as the UAE, may bar arbitration for certain categories of IP disputes when public interest is at stake. While the DIFC is more permissive, the onshore UAE courts tend to be more cautious. So, as always in IP: context is king. Arbitration is likely to be powerful tool but it is important to keep these considerations in mind when including arbitration clauses in IP agreements.

Conclusions

Arbitration is proving to be more than just a litigation alternative in IP disputes, in fact, it is becoming a strategic asset, but, like any powerful tool, it requires careful handling. For those considering this route, a few foundational practices go a long way. Start by drafting clear and deliberate arbitration clauses that leave little room for ambiguity.

Then, ask the critical question: is this dispute arbitrable in the relevant jurisdiction? Some matters, such as challenging the validity of a patent, might be off-limits in arbitration, depending on local arbitral rules. Equally important is thinking ahead about enforcement. It is one thing to win an award; it is another to get it recognised and executed across borders.

Finally, choose your decision-makers wisely. IP is rarely straightforward, so picking arbitrators with the right blend of legal acumen and technical fluency can shape the outcome significantly.

Arbitration, done right, offers a custom-fit solution for IP disputes. The key lies in knowing when, where, and how to deploy it. It is not just about whether arbitration is possible, it is about whether it is the right move for the problem at hand. By thoughtfully considering these factors and strategically drafting arbitration agreements, parties can harness the benefits of arbitration while mitigating its limitations.