What is Arbitration? The Center makes available a Guide to WIPO Arbitration, which may be ordered or downloaded (PDF).

Arbitration is a procedure in which a dispute is submitted, by agreement of the parties, to one or more arbitrators who make a binding decision on the dispute. In choosing arbitration, the parties opt for a private dispute resolution procedure instead of going to court. Its principal characteristics are:

Arbitration is consensual

Arbitration can only take place if both parties have agreed to it. In the case of future disputes arising under a contract, the parties insert an arbitration clause in the relevant contract. An existing dispute can be referred to arbitration by means of a submission agreement between the parties. In contrast to mediation, a party cannot unilaterally withdraw from arbitration.

The parties choose the arbitrator(s)

Under the WIPO Arbitration Rules, the parties can select a sole arbitrator together. If they choose to have a three-member arbitral tribunal, each party appoints one of the arbitrators; those two persons then agree on the presiding arbitrator. Alternatively, the Center can suggest potential arbitrators with relevant expertise or directly appoint members of the arbitral tribunal. The Center maintains an extensive roster of arbitrators ranging from seasoned dispute-resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property.

Arbitration is neutral

In addition to their selection of neutrals of appropriate nationality, parties are able to choose such important elements as the applicable law, language and venue of the arbitration. This allows them to ensure that no party enjoys a home court advantage.

Arbitration is a confidential procedure

The WIPO Rules specifically protect the confidentiality of the existence of the arbitration, any disclosures made during that procedure, and the award. In certain circumstances, the WIPO Rules allow a party to restrict access to trade secrets or other confidential information that is submitted to the arbitral tribunal or to a confidentiality advisor to the tribunal.

The decision of the arbitral tribunal is final and easy to enforce

Under the WIPO Rules, the parties agree to carry out the decision of the arbitral tribunal without delay. International awards are enforced by national courts under the New York Convention, which permits them to be set aside only in very limited circumstances. More than 140 States are party to this Convention.

How arbitration works Most people even those well versed in the world of defamation and media law are unfamiliar with arbitration and how it works. If youre facing a libel action and are considering your options, its worth understanding the Early Resolution scheme and what benefits it can offer. Heres our quick guide to the process. The goal of arbitration: early resolution The outcome of most media disputes depends on four things:

Whether the words complained of actually refer to the claimant If the words are really defamatory as opposed to being just inaccurate

Whether the words are honest comment or a statement of fact, and What the words complained of actually mean to the average reasonable reader

In many cases, the issue of meaning will not be determined until trial, by which time both parties will have incurred substantial legal costs. The ER Scheme has been set up to enable key issues like those set out above to be determined by experts, under a voluntary arbitration system, at the outset of a dispute. Experience shows that once the meaning of the words has been determined or other key issues resolved, settlement of the complaint follows rapidly. Arbitration can resolve disputes more quickly The ER Scheme recognises that libel disputes need to be resolved quickly. Under the Scheme disputes are referred to an expert Arbitrator or Panel within days of an arbitration agreement being signed by the parties. We at ER help with the drafting of this arbitration agreement and the selection of an Arbitrator from the list of experts we have in this field. The parties may also agree that the expert Arbitrator should be assisted by two lay assessors (the Panel). ER then helps with the instructions that need to be sent to the Arbitrator and what issue(s) need to be determined &mdash usually "meaning". The Arbitrator/Panel Chair will then direct the parties to submit and exchange written Submissions on the law and the actual meaning of the words complained of. The Arbitrator/Panel will then meet and consider the words/images complained of, plus the parties written submissions. Within a few days of the meeting, the Arbitrator/Panel Chair will send the parties the decision on meaning or any other key issue, together with brief reasons. The overall time taken to resolve key issues is usually 28 days from the appointment of the Arbitrator/Panel Chair. Your dispute could be resolved within 28 days. Arbitration avoids the huge legal costs of a trial ER Members, who are likely to be authors, journalists, publishers, broadcasters, public authorities, academics, scientists, NGOs and bloggers, will be told if their case is susceptible to early resolution through the ER scheme. ER will then help them achieve early resolution through arbitration. By joining ER, Members will be expected to share the Principles of ER. These normally require commercial defendants

participating in the Scheme to pay the initial cost of determining the meaning of the words complained of or other key issues in the proceedings. If the arbitrator rules in a Members favour, the Member will be expected not to seek to recover any initial legal costs or the cost of the arbitration from an unsuccessful claimant. But note: you need only opt for the ER scheme where there is a genuine ambiguity or real uncertainty about the words you wrote AND they are clearly defamatory. The initial arbitration costs should not normally exceed 2,500 plus VAT a tiny fraction of the cost of going to a trial with all the attendant uncertainty that that entails. If the arbitrator rules in the claimants favour, you will still be better off opting for the ER scheme than going to trial. You will be able to make an immediate offer of amends, pay less in damages, avoid the uncertainty of a jury trial and save what may be hundreds of thousands of pounds in legal costs. The initial arbitration costs should not normally exceed 2,500 plus VAT a tiny fraction of the cost of going to trial. An arbitrator is appointed ER has drawn up a list of experts in media law who are ready and willing to arbitrate key issues in libel actions. Those on the list of experts are retired Court of Appeal or High Court Judges and/or practising Queens Counsel in the law of defamation. All of them possess wide experience of media disputes and have agreed to arbitrate key issues at fixed fees. Once approached by an ER member or an Associate law firm acting for a claimant or defendant, we will, if asked to, approach the other side and invite them to participate in the voluntary ER Scheme. If both parties agree to the voluntary resolution of a key issue, such as meaning, both sides will be sent a draft Arbitration Agreement including the List of Experts. The parties will then be invited to agree an arbitrator from the list, but in the absence of agreement ER will appoint the arbitrator after confidential discussions with each party. The ER list of experts are all retired High Court judges or Queens Counsel and ideally suited to resolve libel disputes. The arbitrator makes a binding ruling

All communications with ER are entirely confidential and without prejudice. Rulings by the arbitrator or panel are not appealable and are binding on the parties. Each party is encouraged to set out the meaning or meanings contended for, and ensure that their written submissions deal succinctly with any factual and/or legal issues arising. They will also be expected to agree the likely consequences of a finding or ruling in favour of one party or the other. After the arbitrator or panel has delivered a finding/ruling, the parties will be invited to enter into without-prejudice negotiations, or for the defendant to make an offer of amends, or for the claimant to discontinue the complaint. If the parties have not agreed a settlement within 14 days, either party has the right to refer any consequential issue back to the arbitrator or panel for a further and final ruling. Rulings by the arbitrator or panel are not appealable and are binding on the parties. Read the full rules of the scheme for more information For full details of the arbitration process and its terms and conditions, please see the rules of the scheme. The rules of Early Resolution 1. Key issues susceptible to early resolution

Is the Claimant identifiable from the words complained of? Are the words defamatory of the Claimant? What is the natural and ordinary meaning of the words complained to the ordinary reasonable reader? Are the words honest comment/opinion on a matter of public interest or a statement of fact, which needs to be justified? Are the words complained of words which have been published in the public interest? Has the Claimant, if normally resident outside the United Kingdom, suffered substantial damage to his/her/its reputation in the United Kingdom from the words complained of? What damages should be awarded to the Claimant if, having agreed liability, the parties cannot agree on the quantum of damage? Any other issue that the parties have agreed should be arbitrated under the Arbitration Act 1996 and the Arbitrator is happy to arbitrate.

2. Confidentiality All correspondence/communications by either Party with Early Resolution (ER) leading up to the signing of an Arbitration Agreement or any instructions to ER by either Party or from the Parties to the Arbitrator/Panel Chair shall be entirely without prejudice to any Court hearing and the eventual resolution of the Dispute. 3. Binding nature of findings/rulings The Parties agree to be bound by the Arbitration Act 1996 and accept that any decision of the Arbitrator/Panel on any key issue shall be binding on both Parties even if the Dispute does not settle and reverts to court proceedings. 4. Time Both parties and ER agree that time is of the essence and shall use all reasonable endeavours to comply with the following time scales: 1. Agree an Arbitrator/Panel Chair within seven days of signing an Arbitration Agreement 2. Agree instructions to the Arbitrator/Panel within 7 days of the Arbitrator/Panel being agreed and appointed 3. Send written submissions to the Arbitrator/Panel Chair and ER within 14 days of his/her appointment and exchange the same with the other side 4. The Arbitrator/Panel Chair shall arrange a deliberation/meeting within seven days of receipt of written submissions and notify the Parties of the date 5. Write up and record the decision of the Arbitrator/Panel and submit it to both parties within seven days of the Arbitration meeting 6. Immediately on receipt of the Arbitrators/Panels decision enter into without prejudice negotiations to resolve the dispute 7. If agreement is not reached within 14 days of the Arbitration decision being handed down report back to the Arbitrator for further consequential rulings or advice 5. Failure to agree an arbitrator from List of Experts

If the parties are unable to agree an Arbitrator from the List of Experts held by ER then either party may put forward names of other possible experts. If the parties cannot agree an Arbitrator after seven days, ER will ask the Parties to list the Experts in order of preference and then appoint the Expert who commands most support. 6. Panel with two lay assessors The parties may agree that the Arbitrator should be assisted by two lay assessors. In such event, the Arbitrator shall appoint two independent and neutral lay assessors (one male and one female) from friends or colleagues and notify the Parties of their names, sex and professions and anything else which might cause a conflict of interest or be relevant to their appointment. Either Party can object, giving reasonable grounds, to a lay assessor so chosen and the Arbitrator shall select someone else in his/her place. 7. Instructions to Arbitrator/Panel Chair Within seven days of the Arbitrator or full Panel being agreed, the Parties shall, with the help of ER, agree instructions to the Arbitrator/Panel Chair on what the key issue(s) is/are and what needs to be decided by the Arbitrator/Panel. In the case of a meaning dispute the Parties may set out the contended for meanings or their preferred meaning and ask the Arbitrator/Panel if there is some other or a lesser defamatory meaning than those contended for by the parties. Instructions shall, when agreed by the Parties, be sent to ER which shall forward them to the Arbitrator/Panel Chair with copies of the words complained of. 8. Written submissions/hearings Each side shall be invited to make written submissions to the Arbitrator/Panel on matters of law or fact within a set time frame. Any legal submissions may be limited by the Arbitrator to a certain number of pages. Any submissions relating to matters of fact or what the words actually mean to the average reasonable reader shall be attested to by the Party making the submission and that Party may be cross-examined on any facts set out in the submission by the other Party with the consent of the Arbitrator. The Arbitrator shall retain an absolute discretion to order an oral hearing if thought appropriate but this shall be the exception rather than the rule.

9. Arbitration Decision The Arbitrator shall notify both parties of any decision on meaning or any other key issue within seven days of the Arbitration meeting. Either Party may then revert to the Arbitrator for clarification on any part of the decision but all correspondence must be copied to the other party and ER. The Parties shall then enter into without prejudice negotiations to try to settle the dispute as soon as possible. If the Parties have not resolved the dispute after 14 days from the decision being handed down then either Party may apply to the Arbitrator for consequential or further rulings or seek help from ER. 10. Consequential or further Rulings If the Parties cannot agree the wording of a correction and/or apology or its positioning or the issue of damages, either Party shall have the right to apply to the Arbitrator for: 1. A fair and accurate summary of the decision handed down (no more than a 150-word summary) 2. Where the correction and apology should reasonably appear and if it does not, how much more might be added in damages if the correction/apology does not so appear 3. And what the damages should be with any possible Jimmy Nail discount if the Respondent has made an offer of amends. Prior to making an award of damages, the Arbitrator shall have the power to call on the Parties to serve written submissions on the issue of quantum of damages. The Arbitrator cannot order an apology to appear in a particular place or exactly what any apology/correction should say. The Arbitrator is limited to a fair and accurate summary of the decision made. 11. Costs Costs shall also fall within the category of consequential rulings. The Arbitrator may award the Claimant his/her reasonable costs and order that these be paid by the Respondent. The Arbitrator may not order that any such costs be anything other than a reasonable, proportionate and fair amount to recompense the Claimant for bringing the claim. The Arbitrator may not award any success fee to the Claimants solicitors if they are working on a CFA basis nor award the Claimant a sum in respect of any

ATE insurance premium taken out by the Claimant if and only if the Respondent has agreed to pay the cost of the Arbitration and given up any right to recover costs from the Claimant if the Claimant is unsuccessful. Prior to any award of costs, the Arbitrator may call on the parties to submit schedules of costs. Advantages and disadvantages Parties often seek to resolve their disputes through arbitration because of a number of perceived potential advantages over judicial proceedings:

when the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed (as one cannot "choose the judge" in litigation) arbitration is often faster than litigation in court[citation needed] arbitration can be cheaper and more flexible for businesses[citation needed] arbitral proceedings and an arbitral award are generally non-public, and can be made confidential[5] in arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the country of the competent court will be automatically applied because of the provisions of the New York Convention 1958, arbitration awards are generally easier to enforce in other nations than court judgments in most legal systems there are very limited avenues for appeal of an arbitral award, which is sometimes an advantage because it limits the duration of the dispute and any associated liability

Some of the disadvantages include:

arbitration may become highly complex[citation needed] arbitration may be subject to pressures from powerful law firms representing the stronger and wealthier party[citation needed] arbitration agreements are sometimes contained in ancillary agreements, or in small print in other agreements, and consumers and employees often do not know in advance that they have agreed to mandatory binding pre-dispute arbitration by purchasing a product or taking a job if the arbitration is mandatory and binding, the parties waive their rights to access the courts and to have a judge or jury decide the case

in some arbitration agreements, the parties are required to pay for the arbitrators, which adds an additional layer of legal cost that can be prohibitive, especially in small consumer disputes[citation needed] in some arbitration agreements and systems, the recovery of attorneys' fees is unavailable, making it difficult or impossible for consumers or employees to get legal representation[citation needed]; however most arbitration codes and agreements provide for the same relief that could be granted in court if the arbitrator or the arbitration forum depends on the corporation for repeat business, there may be an inherent incentive to rule against the consumer or employee[citation needed] there are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned although usually thought to be speedier, when there are multiple arbitrators on the panel, juggling their schedules for hearing dates in long cases can lead to delays in some legal systems, arbitrary awards have fewer enforcement options than judgments; although in the United States arbitration awards are enforced in the same manner as court judgments and have the same effect arbitrators are generally unable to enforce interlocutory measures against a party, making it easier for a party to take steps to avoid enforcement of member or a small group of members in arbitration due to increasing legal fees, without explaining to the members the adverse consequences of an unfavorable ruling rule of applicable law is not necessarily binding on the arbitrators, although they cannot disregard the law[citation needed] discovery may be more limited in arbitration or entirely nonexistent the potential to generate billings by attorneys may be less than pursuing the dispute through trial unlike court judgments, arbitration awards themselves are not directly enforceable. A party seeking to enforce an arbitration award must resort to judicial remedies, called an action to "confirm" an award although grounds for attacking an arbitration award in court are limited, efforts to confirm the award can be fiercely fought[citation needed], thus necessitating huge legal expenses that negate the perceived economic incentive to arbitrate the dispute in the first place.