Foreign
investor could handle intellectual property disputes in Vietnam through
negotiation and mediation, arbitration or litigation depending on various
factors.
Intellectual
property rights is the rights of organizations, individuals to the intellectual
property, including copyrights and related rights, industrial property rights,
including trademark, patent, and industrial
design and rights to the plant varieties. Under
Vietnam intellectual property law, owners are granted certain exclusive
right to the intangible assets. Intellectual property infringement occurs
whenever the rights of any type of intellectual property are violated. The
intellectual property disputes arise directly from all types of intellectual
property as mentioned or commercial transactions and extraction process
regarding to types of intellectual property such as license agreement,
intellectual property transferring agreement.
Disputes could be settled by different methods, depending on the
subjective wills of parties. The parties have right to choose any methods that
they deem ideal to protect their interests.
Nowadays,
international practice allows parties to choose one of two ways to settle their
disputes, including dispute settlement mechanism without litigation
(negotiation and mediation) and dispute settlement mechanism with litigation
(civil litigation and arbitration). Typically, when disputes occur, parties
often choose simplest methods before using other ones. The simplest methods are
negotiation and mediation.
Negotiation
is a procedure whereby parties work together and reach the solution by
expressing their own point of views to the dispute. This method is used for
small, non-complex disputes so that parties could be easy to reach a consensus
about dispute settlement. Though this method is simple, it is hard for parties
to shake their hands together and come to consensus. It is simply because each
party always need advantages come to them. Besides, for example, if parties
reach the consensus in settling dispute, there is no mechanism to ensure enforcement
of dispute solution.
Mediation,
different from negotiation, the participation of third party is requested by
parties. However, the same thing between negotiation and mediation is that
parties are sole those holding right to decide what solutions are applied to
settle dispute. Despite the third party only act as intermediary, the mission
of third party is really important. The third party helps to connect dispute
parties and avoid stronger conflict between them. With experience and skills,
they make opportunity for parties exchange information, help them express their
standpoints, promote flexible solutions and suggest solution suitable for both
of them. Of course, a methodswhich the third party proposes is solely
recognized as a reference. In mediation, the information security is highly
ensured. Parties are not forced to reveal any information that they want to
keep as a secret. Besides, mediation helps parties minimize fees due to simple
procedure. Moreover, mediation allows opportunity for parties to work together
and reach settlement and typically, parties still keep their business
relationship. Last but not least, parties can mediate in any period of dispute
settling process. Mediation can be chosen as the first step to come to dispute
settling process after each side’s endeavor.
After
no result of both side’s endeavor, parties can choose one of the dispute
settlement mechanism with litigation to settle dispute. Generally, the
proceeding of civil litigation is more complex than the arbitration proceeding.
In case one side needs a decision from court so as to end infringement, civil
litigation is top priority. In the remaining case, arbitration is a choice with
advantages. Arbitration is solely conducted when parties reach consensus that
arbitration is a form of dispute resolution. Arbitration agreement must be a
term of the core contract or an independent agreement.
Firstly,
cost for arbitration is typically cheaper than traditional litigation.
Attorney’s fees and expense are minimized in arbitration because arbitration is
generally concluded in far less time than cases at court. Secondly, length of
dispute settling time in arbitration is shorter than litigation in court
because of simple procedure. Court cases generally require more counsel time
and, thus, more expenses for preparation and trial than is needed in
arbitration. Thirdly, settling dispute by arbitration is effective because of
its flexibility. In arbitration, parties have right to choose form of
arbitration (Ad hoc or permanent). Moreover, parties can schedule hearings and
deadlines to meet their objectives and convenience. This flexibility allows
parties save money, time and partially promote dispute settling process to be
faster. Fourthly, arbitration is a secret proceeding. The decision is public,
but the trial is close. This feature of arbitration is a big advantage for
dispute involving trade secret or patent. Lastly, arbitration council’s
decision is final. It means that contrary to decision of court, most of
arbitration council’s decisions cannot be appealed. Chance for canceling
arbitration’s decisions is not much, primarily because of basic mistakes about
procedures.
Dispute
settling method in arbitration is suitable for most of intellectual property
disputes because this method meets the featured requirements of intellectual
property dispute (multinational, information security, complexity). Mediation
and arbitration can combine together in settling dispute. Firstly, dispute is
settled by mediation. Then, in case if parties do not reach settlement in
mediation, dispute will be settled by arbitration council. The advantage of
this combination is that it promotes parties propose goodwill engagement in
mediation and after that, will create more advantages for dispute resolution in
arbitration.
To
summarize, when facing a dispute relating to intellectual property right,
foreign investor can handle out dispute through judging exactly about scale of
dispute, financial capability, dispute settling time, level of information
security because intellectual property is worthy assets that can impact
development as well as existence of enterprises.
With
highly professional staff and great experience in IP aspect in Vietnam, ANT
Lawyers would like to support you in extending your intellectual property in
Vietnam.
ANT
Lawyers - Law firm in Vietnam
our trial lawyers with accreditation in national and international arbitration
practice could help providing legal advice in disputed matters, and guide the
clients through out the process. The
lawyers could also advise the clients on various matters from choice of
arbitrator, choice of arbitration rules, ad-hoc or institutional arbitration,
place of arbitration, enforcement of arbitral award.
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