جستجوی مقالات مرتبط با کلیدواژه « Alternative Dispute Resolution » در نشریات گروه « فقه و حقوق »

The development of international transactions and the commercial exploitation of intellectual property has increased the necessity of creating dispute resolution methods in the field of intellectual property in accordance with international requirements. The parties to the dispute are looking for efficient, flexible, and low-cost dispute resolution mechanisms that will not disrupt their business relations. This is despite the fact that intellectual property disputes often lead to long and expensive lawsuits due to the territorial nature, diversity of rights, and technical complexities that result from the integration of different fields such as artificial intelligence with other fields, which is not favorable for the courts and litigants. Therefore, intellectual property rights holders have turned to methods that are more under the control and management of the disputing parties to resolve disputes. The special features of intellectual property rights and its lawsuits, such as territoriality, the specialization of intellectual property issues, conflicts in the jurisdiction of courts, widespread violations in different jurisdictions, the importance of confidentiality, the length of the process, andthe huge costs of international proceedings. The lack of an international convention on the enforcement of intellectual property judgments is one of the most important reasons that has affected the efficiency of judicial proceedings in these cases. Non-judicial dispute resolution methods, which mainly have fewer formalities and costs and are faster, reduce many of these problems. Among the non-judicial methods, mediation has the advantage of considering the characteristics of intellectual property, and compared to other methods, it is more successful in resolving these disputes. The interdisciplinary nature of most intellectual property claims and the need for various expertise to resolve disputes and the possibility of examining complex intellectual property cases, especially patent claims, by technical experts in the shortest time compared to other methods and often at a much lower cost, territorial nature of intellectual property rights and solving the problem of conflict in the jurisdiction of national and international courts and reducing the risk of issuing conflicting opinions, reducing the damage of the owner of the intellectual work due to the urgency and speed of mediation in resolving the dispute, focusing on the mutual interests of the parties and resolving the dispute amicably and, as a result, maintaining the commercial relations of the parties in long-term contracts that sometimes cover the entire period of protection of intellectual property, the suitability of the rapid development of technology, and the rapid diffusion of intellectual properties due to their intangible nature with the speed of dispute resolution in mediation compared to the slowness of judicial proceedings, extraordinary flexibility in the dispute resolution process and the possibility of adopting creative solutions such as concluding a license agreement, technology transfer, integration, cooperation in research and development, and agreement on the division of patent within a specific territorial area instead of being limited to the specific  Judicial decisions such as revocation, financial damage,   and etc. are the advantages of this method in solving intellectual property disputes compared to other alternative methods.Also, privacy and confidentiality and maintaining the technical and commercial secrets of the parties, avoiding the reinterpretation of the claim in court and the risk of narrowing the claims, reducing the risk of patent invalidation, avoiding the research process, and obtaining the opinions of multiple experts due to the complexities of intellectual property claims, especially patent lawsuits and its costs, complete control of the parties on the determination of proceedings and the absence of legal dates and deadlines, being held in a single stage and with quick results, lack of legal obligation of the parties to accept the mediator's recommendations and suggestions, and the optionality of the procedure that leads to the parties not resorting to useless tricks or objections to slow down or create obstacles in the mediation process. Another reason is the effectiveness of mediation in resolvingintellectual property disputes. A field research has been prepared to answer the question of what functions the mediation institution has to resolve intellectual property disputes and it comes to the conclusion that mediation is effective in all aspects of the conflict, including judicial and non-judicial elements such as commercial interests, feelings, and other conditions of companions. Considering the dispute and empowering the parties, it allows them to find the right solution based on their special interests and needs. Therefore, it can be said that although dispute resolution through mediation is not considered the only appropriate method for resolving intellectual property disputes, it has desirable functions and is efficient in most of these disputes.

Although in the case of disputes, the principle of general jurisdiction of the Courts has been established for the resolution of disputes, the existence of the Contractual Dispute Resolution Regulation makes some ambiguities to identify the competent authority to settle disputes of main and sub-companies of Iranian Ministry of Petroleum, Firstly, does the clause of dispute resolution and the nature of the resolution board in the above mentioned Regulation have the characteristics of the arbitration?Secondly, if the resolution board is an arbitrator, does fulfillment of the Regulation related in the case of disputes on properties belonging to the Ministry of Petroleum companies necessitates compliance with provisions of Constitutional law article 139?This article proves that firstly, substance of the clause of dispute resolution and stated process of resolution in the Regulation do not encompass the arbitration and secondly, if the board is accounted an arbitrator, disputes on properties of state corporations and disputes of which subjects do not directly pertain to state properties, will not be subject to the limitations mentioned in Constitutional law article 139 and civil procedural law article 457.