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Challenges and Solutions for PMAC Arbitral Awards under the Unified Patent Court
Challenges and Solutions for PMAC Arbitral Awards under the Unified Patent Court
Introduction:
The recent establishment of the Patent Mediation and Arbitration Centre (PMAC) within the Unified Patent Court (UPC) has brought forth a crucial mechanism for resolving disputes related to European patents. However, concerns loom over the enforceability of PMAC arbitral awards, particularly in the realm of EU competition law. This article delves into the intricacies of PMAC's role, and the challenges it faces, and proposes three viable solutions to mitigate the risks associated with the enforcement of its arbitral awards.
Competence and Enforcement Mechanisms:
The UPC and PMAC share jurisdiction over civil litigations involving European patents. While the UPC's decisions are enforceable in any Contracting State, PMAC arbitral awards fall under the purview of the 1958 New York Convention. However, the real challenge arises in the interplay with EU competition law, where the PMAC faces limitations absent in the UPC.
The Role of the UPC in EU Competition Law:
The UPC plays a crucial role in seeking preliminary rulings from the Court of Justice of the European Union (CJEU) on questions of EU competition law. This ensures uniform application and interpretation of EU law. In contrast, PMAC tribunals lack the authority to seek CJEU rulings, raising concerns about the accurate interpretation of EU competition law in arbitral awards.
EU Competition Law Implications for PMAC Arbitral Awards:
Given the intertwining nature of intellectual property (IP) and competition law, PMAC arbitral tribunals may frequently encounter EU competition law issues. However, their inability to seek CJEU guidance poses a potential threat to the uniform interpretation and application of these laws. Arbitral awards violating EU competition law face heightened scrutiny during enforcement proceedings, potentially being refused on public policy grounds.
Procedural Solutions to Mitigate the Risks:
To address these challenges, three potential solutions are proposed:
Direct Fixing:
PMAC could incorporate a provision in its procedural rules allowing arbitral tribunals to request CJEU preliminary rulings, akin to Rule 266 of the UPC Rules.
Limitation: Recognition as 'courts' under Article 267 TFEU is not guaranteed.
Indirect Fixing:
PMAC could delegate the UPC to submit a preliminary reference to the CJEU on its behalf, leveraging the cooperation framework between PMAC and UPC.
Drawback:
This might elongate the duration of PMAC arbitral proceedings.
Patch Solution:
Winning parties may request the PMAC arbitral tribunal to have its award confirmed by the UPC, providing an enforcement order.
Downside:
This transforms the award into a court judgment, impacting global enforceability under the 1958 New York Convention.
Conclusion:
While the establishment of PMAC marks a significant step in patent dispute resolution, its enforcement challenges in the context of EU competition law cannot be ignored. The proposed solutions aim to strike a balance between ensuring uniform interpretation and application of EU law and preserving the efficacy of the PMAC arbitral process. As the UPC and PMAC embark on their journey, these considerations become pivotal for the effective functioning of the Unified Patent Court.
- The UPC plays a crucial role in seeking preliminary rulings from the Court of Justice of the European Union (CJEU) on questions of EU competition law.
- Arbitral awards violating EU competition law face heightened scrutiny during enforcement proceedings, potentially being refused on public policy grounds.
- The proposed solutions aim to strike a balance between ensuring uniform interpretation and application of EU law and preserving the efficacy of the PMAC arbitral process.
