It depends on the situation. If the disagreement between parties is not very serious, it is cheaper and faster to use conciliation and mediation.

However, in serious disputes invilving huge financial implications, most parties will resort to litigation, which is ling drawn out and very expensive.

That is why parties should try their best to conciliate and mediate their disagreements before they become too serious.

The legal possibility of using ADR institutions, in particular arbitration, to resolve - in general - disputes affecting intellectual and industrial property rights depends on the fact that they are "disposable", which means that they must be subjects on which the Autonomy of the Private Will can dispose. If not so, then you must go to the Courts of Justice. But which issues referring to intellectual and industrial property rights, are "disposable", and which are "non-disposable"? The decisive factor lies not in the mandatory or operative nature of the legal rules that are affected, but in the affectation, or not, of the General Interest, which is an essential Issue in "Civil Law" countries that follow the model of the french "Droit amministratif" or that follow the model of the german "Verwaltungsrecht", because in these legal systems, administrative law, which is the common statutory and relational law of public administrations, comes into play in those relations in which the general interest is at stake. So why is general interest at stake, in issues referring to intellectual and industrial property rights? The reason why lies in the fact that, when You try to explain the legal nature of such property rights, you can offer three explainations... all of then, equally true:

1.- They are rights of ownership, from the poin of view of the Continental "Ius Civile" [Derecho Civil, Diritto Civile, Droit Civil, bürgerliches Recht]

2.- They are legal monopolies that supersede free enterprise and free market, from the poin of view of the Continental "Lex Mercatoria" [Derecho mercantil, Diritto Commerciale, Droit Commercial, Handelsrecht]

3.- But there is also an Administrative aw pont of view, following which these rights have a concessional legal-administrative nature, as if the free market were a kind of public good and - above all - a good of public use, that only by means of an act -"provvedimento"- of concession could it be reserved for a specific person -e.g. the first and true inventor-, to the exclusion of other people. It's here where lies the General Interest, which in undisposable and lies outside the environment of ADR.

Thus, for example, the dispute between the user of a trademark... and the Registry of Trademarks and Patents, concerning the specificity or distinctive character and the risk of confusion with other trademarks, cannot be entrusted to an arbitration.

Bur on the contrary, dispute between the user of a trademark and the franchisor or seller of the trademark, in issues relating to contract, and to the right os using the property rights on the Trademark, surely can be entrusted to an arbitration, because they refer to the first level: as rights of ownership, from the poin of view of the Continental "Ius Civile" [Derecho Civil, Diritto Civile, Droit Civil, bürgerliches Recht]

Dear Colleague,

ADR proceedings are ideal for a highly technical are of expertise such as pharmaceuticals in general. This is because you have more often than not that presumed plaintiffs and defendants are both seasoned traders in the same sector, who understand well the ins and outs of the industry the dirty tactics and the legitimate manouvres of the players in the market, therefore, they will be talking business within carefully articulated and constructed legal arguments within the confines of the law, in the language and the mentality they are bound to understand. At the same time the lengthy legal procedures in a court of law cost money, in ADRs procedures are more expedite at the same time you have technical experts that are making the talk. Unless not presiding on procedures in special courts the adjudicators most often are not technically competent in the field they are requested to submit thier relevant judgment. Moreover, both parties in the contentious dispute do sometimes clearly understand the profitable and viable compromise both have to reach, therefore litigation in court apart from being costly, and lengthy, walking in the dark woods of legality may result in an outcome which although legally valid and correct, will not result in the most suited or convenient outcome. Apart from the fact that it is a fiction to ever consider a law complicated and detailed as it may be, gapless. This means there may be moot points in the law, or situations that the business world may create that the law is unable to solve neatly and unambiguously. In ADR proceedings contemporary usage and business sense of both parties can result in a workeable solution for instances that are not necessarily possible to resolve without arbitrary interpretation of the law. Ideally, mediation is the best option, because psychologically both parties sit down round a table as equals. Arbitration is another alternative, but it can be complex and costly especially when a compromis has to be agreed upon, with the richer party having an upperhand and cunningly doctoring the outcome of the arbitration proceeding. ADRs, are to be explored and analysed within the context of globalised trade, and the jungle of arbitration clauses, most often cropping up in arbitration procedures. In mediation it is most often the norm to speak the language of the jurisdiction where the issue of concern has occurred, in view of reaching an amicable settlement.

However, I still believe that the choice between ADR proceedings especially mediation and court litigation rests on the overall command over the journey a company is pursueing and the readings of the signs of time. If one is envisaging the destination in his vision and wants to reach it as quickly as possible, ADR proceedings have to be pursued, if on the other hand, a company is seeing that it is a defaulting party and legally its position is written on the wall, and it needs to buy time because it is to blame for a percieved misdoing, then judicial litigation can be the option, especially, if it can get away with murder because of a technical loop hole for example.

As is the case in business generally one has to leave his/her options open and choose the appropriate strategy according to the exigencies of the companies business goals and ambitions.

I hope this was of help,

Stefan Vella

Dear Mr. Stefan Nicholas Vella ,

Thank you for your support. Your complex and explicit answer is very helpful and confirms my hypothesis.

Regards,

Răzvan Tataru

Dear Mr. professor José Luis García-Pita ,

Thank you for your answer. Considering your expertise as an arbitrator, the provided information are very useful in my research.

Best regards,

Răzvan Tataru