Dispute Avoidance and Resolution Best Practices for the Application Service Provider Industry

ANNEXES

WIPO Dispute Resolution Clauses
Model Problem Resolution Clause
WIPO Mediation Rules
WIPO Arbitration Rules
WIPO Expedited Arbitration Rules
WIPO Arbitration and Mediation Center Schedule of Fees and Costs
Examples of ASP Supply Chain Disputes
Other ADR Processes

ANNEX A

WIPO DISPUTE RESOLUTION CLAUSES

Set out below are model dispute resolution clauses and optional clauses that contracting parties in the ASP supply chain may consider including in their agreements. No attempt should be made to modify the language or the terms of these clauses without seeking expert advice.

Recommended Clauses for Future Disputes

Mediation

Arbitration

Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules. The arbitral tribunal shall consist of [three arbitrators][a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction].

Expedited Arbitration

Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction].

Mediation Followed, in the Absence of Settlement, by Arbitration

If, and to the extent that, any such dispute, controversy or claim has not been settled pursuant to the mediation within [60][90] days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

Alternatively, if, before the expiration of the said period of [60][90] days, either party fails to participate or to continue to participate in the mediation, the dispute, controversy or claim shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

The arbitral tribunal shall consist of [three arbitrators] [a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim referred to arbitration shall be decided in accordance with the law of [specify jurisdiction].

Mediation Followed, in the Absence of Settlement, by Expedited Arbitration

The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim referred to arbitration shall be decided in accordance with the law of [specify jurisdiction].

Multi-Step Dispute Resolution Clause

To the extent not resolved in the normal course of business, the parties shall attempt in good faith to resolve any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims (a Dispute), in accordance with the following procedures (the Dispute Resolution Procedure):

1. Negotiations

1.1 If a Dispute should arise, no later than [specify number of business or calendar days] following the transmission of notice in writing by one party to the other party, [identify name of person] of [first contracting party, as defined] and [identify name of person] of [second contracting party, as defined], or their respective successors in the positions they now hold (the Relationship Managers), shall meet at a mutually agreed place, or otherwise communicate, in an effort to resolve the Dispute. Any subsequent meetings or communications shall be agreed by the Relationship Managers in light of their first meeting and taking into consideration the circumstances underlying the Dispute.

1.2 If the Dispute has not been resolved within [specify number of business or calendar days] days of their first meeting or communication to resolve the Dispute, the Relationship Managers shall refer the Dispute immediately to senior executives, who shall have the authority to settle the Dispute (the Senior Executives). Upon such referral, the Relationship Managers shall promptly prepare and exchange memoranda (i) stating the issues in dispute and their respective positions; (ii) summarizing the negotiations that have taken place and (iii) attaching relevant documents. The Senior Executives shall meet for negotiations as soon as practicable and, in any event, within [specify number of business or calendar days] days of the first meeting between the Relationship Managers, at a mutually agreed time and place.

2. Mediation

2.1 If the Dispute has not been resolved within [specify number of business or calendar days] days of the meeting of the Senior Executives, except if the parties agree to extend such period, they shall endeavor to settle the dispute by mediation in accordance with the WIPO Mediation Rules (the Mediation). The place of mediation shall be [specify place]. The language of the mediation shall be [specify language].

3. Arbitration

3.1 If, and to the extent that, the Dispute has not been settled pursuant to the Mediation within [specify number of business or calendar days, usually 60 or 90] days of the commencement of the Mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

3.2 Alternatively, if, before the expiration of the above period, either party fails to participate or to continue to participate in the Mediation, the Dispute shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

3.3 The arbitral tribunal shall consist of [three arbitrators] [a sole arbitrator]. The place of arbitration shall be [specify place]. The language of the arbitration shall be [specify language]. ]. The dispute, controversy or claim referred to arbitration shall be decided in accordance with the law of [specify jurisdiction].

Note: If the parties refer to the WIPO Expedited Arbitration Rules instead of the WIPO Arbitration Rules, the highlighted clause should be deleted.

Recommended Submission Agreements for Existing Disputes

Mediation

We, the undersigned parties, hereby agree to submit to mediation in accordance with the WIPO Mediation Rules the following dispute:

[Brief description of the dispute]

The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language].

Arbitration

We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules:

[Brief description of the dispute]

The arbitral tribunal shall consist of [three arbitrators] [a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute shall be decided in accordance with the law of [specify jurisdiction].

Expedited Arbitration

We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules:

[Brief description of the dispute]

The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute shall be decided in accordance with the law of [specify jurisdiction].

Mediation Followed, in the Absence of Settlement, by Arbitration

We, the undersigned parties, hereby agree to submit to mediation in accordance with the WIPO Mediation Rules the following dispute:

[Brief description of the dispute]

The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language].

We further agree that, if, and to the extent that, the dispute has not been settled pursuant to the mediation within [60][90] days of the commencement of the mediation, it shall, upon the filing of a Request for Arbitration by either party, be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

Alternatively, if, before the expiration of the said period of [60][90] days, either party fails to participate or to continue to participate in the mediation, the dispute shall, upon the filing of a Request for Arbitration by the other party, be referred to and finally determined by arbitration in accordance with the WIPO Arbitration Rules.

The arbitral tribunal shall consist of [three arbitrators][a sole arbitrator]. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute referred to arbitration shall be decided in accordance with the law of [specify jurisdiction].

Mediation Followed, in the Absence of Settlement, by Expedited Arbitration

We, the undersigned parties, hereby agree to submit to mediation in accordance with the WIPO Mediation Rules the following dispute:

[Brief description of the dispute]

The place of mediation shall be [specify place]. The language to be used in the mediation shall be [specify language].

The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute referred to arbitration shall be decided in accordance with the law of [specify jurisdiction].

ANNEX B

MODEL PROBLEM RESOLUTION CLAUSE

xx. Problem Resolution

xx.1 Priority Levels

Within the scope of this Agreement contract-related problems shall be categorized as follows:

a: Priority 1

Severe impact to performance
Requires action within 1 Working Day

b: Priority 2

Significant impact on performance
Requires action within 5 Working Days

c: Priority 3

Moderate impact on performance
Requires action within 20 Working Days.

xx.2 Problem Escalation Process

The following diagram provides the framework for the Problem Escalation Process.

Diagram

xx.2.1 The escalation path for all problems shall be through each Parties respective organizational hierarchy and the formal process described in Section [ ] to [ ] will be consistently used at each level.

xx.2.1.1 The first level shall consist of direct reports to the Regional Account Manager.

xx.2.1.2 The second level shall be the Global Account Manager.

xx.2.1.3 The third level shall be the Executive Sponsor.

xx.2.2 All issues must be resolved within the time periods set forth in Section [ ]. Issues not resolved within such time period shall be managed through the dispute resolution procedure set out in [cross-reference to dispute resolution clause]. This consists of problem reporting, acknowledgment and resolution steps. It also requires the Global Account Managers to be kept informed throughout the process.

xx.2.3 The problem escalation process shall incorporate a communications plan to ensure that all impacted groups are informed of the problem and the progress of the resolution.

xx.2.4 In the event that a problem is not resolved within the specified timeframe or an action plan agreed by each Party, then it shall be escalated to the next level in the organizational hierarchy.

xx.2.5 Problems that are escalated above the General Account Manager level shall be dealt with by the Executive Sponsors. If the Executive Sponsors are unable to resolve the problem it shall be classified as a dispute and actioned for settlement in accordance with the dispute resolution procedure set out in [cross-reference to dispute resolution clause].

xx.3 Problem Reporting

xx.3.1 Problems may be reported by either Party. When a problem is reported it shall be in writing, preferably using electronic mail, to the equivalent level of the other Parties organization.

xx.3.2 The format for problem reporting is:

Date and time problem reported
Problem priority
Problem reported by
Problem reported to
Persons copied on the problem report
Description of the problem
Suggested solution

xx.3.3 The Party reporting the problem may also call their counterpart in the other Company to report the problem, in addition to reporting it in writing. The priority of the problem shall also be agreed at this stage.

xx.4 Problem Acknowledgment

xx.4.1 The format for acknowledgment of receipt of a problem is:

Persons acknowledging receipt of the problem
Persons copied on the acknowledgement
Action plan description for solving the problem
Person accountable for the action plan
Estimated problem resolution date
Attachments should include the original problem report

xx.4.2 Upon acknowledgment of the problem the Party responsible to take action to resolve the problem shall inform the person who identified it of the action plan.

xx.5 Problem Resolution

xx.5.1 The format for reporting a problem resolution is:

Date and time of problem resolution notification
Person accountable for the problem resolution
Description of problem resolution
Appropriate attachments including previous communications

xx.5.2 Upon receipt of the problem resolution notification, the Party who identified the problem shall acknowledge receipt of the notification and shall reply stating whether or not that party agrees that the problem has been resolved using the following format:

Date and time of acknowledgement of problem resolution report
Person responding to problem resolution report
Statement of acceptance of the solution, or if the solution has not been accepted a statement as to why it has not been accepted. Such notice shall constitute a new cycle of problem identification and shall follow the protocol described in this Schedule
Appropriate communications relating to the problem shall be attached

xx.5.3 If the problem resolution has not been accepted by the other Party and an alternative action plan agreed, the problem shall be escalated.

xx.6 Personnel Resolution

xx.6.1 In the event of a personality conflict between the Global Account Managers the problem shall be escalated to the Executive Sponsors of each Party. A resolution plan shall be agreed by the Executive Sponsors and implemented.

xx.6.2 In the event of a personality conflict between the other key positions defined in this Schedule then the problem shall be escalated to the Global Account Managers of each Party. A resolution plan shall be agreed by the Global Account Managers and implemented.

xx.6.3 In the event of the resolution plan failing then the other Party has the authority to remove the offending person subject to a reasonable notice period to ensure a smooth handover.

ANNEX C

WIPO MEDIATION RULES

Abbreviated Expressions

Article 1

In these Rules:

Mediation Agreement means an agreement by the parties to submit to mediation all or certain disputes which have arisen or which may arise between them; a Mediation Agreement may be in the form of a mediation clause in a contract or in the form of a separate contract;

Mediator includes a sole mediator or all the mediators where more than one is appointed;

WIPO means the World Intellectual Property Organization;

Center means the WIPO Arbitration and Mediation Center, a unit of the International Bureau of WIPO;

Words used in the singular include the plural and vice versa, as the context may require.

Scope of Application of Rules

Article 2

Where a Mediation Agreement provides for mediation under the WIPO Mediation Rules, these Rules shall be deemed to form part of that Mediation Agreement. Unless the parties have agreed otherwise, these Rules as in effect on the date of the commencement of the mediation shall apply.

Commencement of the Mediation

Article 3

(a) A party to a Mediation Agreement that wishes to commence a mediation shall submit a Request for Mediation in writing to the Center. It shall at the same time send a copy of the Request for Mediation to the other party.

(b) The Request for Mediation shall contain or be accompanied by

(i) the names, addresses and telephone, telex, telefax or other communication references of the parties to the dispute and of the representative of the party filing the Request for Mediation;

(ii) a copy of the Mediation Agreement; and

(iii) a brief statement of the nature of the dispute.

Article 4

The date of the commencement of the mediation shall be the date on which the Request for Mediation is received by the Center.

Article 5

The Center shall forthwith inform the parties in writing of the receipt by it of the Request for Mediation and of the date of the commencement of the mediation.

Appointment of the Mediator

Article 6

(a) Unless the parties have agreed themselves on the person of the mediator or on another procedure for appointing the mediator, the mediator shall be appointed by the Center after consultation with the parties.

(b) The prospective mediator shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the mediation to be conducted expeditiously.

Article 7

The mediator shall be neutral, impartial and independent.

Representation of Parties and Participation in Meetings

Article 8

(a) The parties may be represented or assisted in their meetings with the mediator.

(b) Immediately after the appointment of the mediator, the names and addresses of persons authorized to represent a party, and the names and positions of the persons who will be attending the meetings of the parties with the mediator on behalf of that party, shall be communicated by that party to the other party, the mediator and the Center.

Conduct of the Mediation

Article 9

The mediation shall be conducted in the manner agreed by the parties. If, and to the extent that, the parties have not made such agreement, the mediator shall, in accordance with these Rules, determine the manner in which the mediation shall be conducted.

Article 10

Each party shall cooperate in good faith with the mediator to advance the mediation as expeditiously as possible.

Article 11

The mediator shall be free to meet and to communicate separately with a party on the clear understanding that information given at such meetings and in such communications shall not be disclosed to the other party without the express authorization of the party giving the information.

Article 12

(a) As soon as possible after being appointed, the mediator shall, in consultation with the parties, establish a timetable for the submission by each party to the mediator and to the other party of a statement summarizing the background of the dispute, the party's interests and contentions in relation to the dispute and the present status of the dispute, together with such other information and materials as the party considers necessary for the purposes of the mediation and, in particular, to enable the issues in dispute to be identified.

(b) The mediator may at any time during the mediation suggest that a party provide such additional information or materials as the mediator deems useful.

(c) Any party may at any time submit to the mediator, for consideration by the mediator only, written information or materials which it considers to be confidential. The mediator shall not, without the written authorization of that party, disclose such information or materials to the other party.

Role of the Mediator

Article 13

(a) The mediator shall promote the settlement of the issues in dispute between the parties in any manner that the mediator believes to be appropriate, but shall have no authority to impose a settlement on the parties.

(b) Where the mediator believes that any issues in dispute between the parties are not susceptible to resolution through mediation, the mediator may propose, for the consideration of the parties, procedures or means for resolving those issues which the mediator considers are most likely, having regard to the circumstances of the dispute and any business relationship between the parties, to lead to the most efficient, least costly and most productive settlement of those issues. In particular, the mediator may so propose:

(i) an expert determination of one or more particular issues;

(ii) arbitration;

(iii) the submission of last offers of settlement by each party and, in the absence of a settlement through mediation, arbitration conducted on the basis of those last offers pursuant to an arbitral procedure in which the mission of the arbitral tribunal is confined to determining which of the last offers shall prevail; or

(iv) arbitration in which the mediator will, with the express consent of the parties, act as sole arbitrator, it being understood that the mediator may, in the arbitral proceedings, take into account information received during the mediation.

Confidentiality

Article 14

No recording of any kind shall be made of any meetings of the parties with the mediator.

Article 15

Each person involved in the mediation, including, in particular, the mediator, the parties and their representatives and advisors, any independent experts and any other persons present during the meetings of the parties with the mediator, shall respect the confidentiality of the mediation and may not, unless otherwise agreed by the parties and the mediator, use or disclose to any outside party any information concerning, or obtained in the course of, the mediation. Each such person shall sign an appropriate confidentiality undertaking prior to taking part in the mediation.

Article 16

Unless otherwise agreed by the parties, each person involved in the mediation shall, on the termination of the mediation, return, to the party providing it, any brief, document or other materials supplied by a party, without retaining any copy thereof. Any notes taken by a person concerning the meetings of the parties with the mediator shall be destroyed on the termination of the mediation.

Article 17

Unless otherwise agreed by the parties, the mediator and the parties shall not introduce as evidence or in any manner whatsoever in any judicial or arbitration proceeding:

(i) any views expressed or suggestions made by a party with respect to a possible settlement of the dispute;

(ii) any admissions made by a party in the course of the mediation;

(iii) any proposals made or views expressed by the mediator;

(iv) the fact that a party had or had not indicated willingness to accept any proposal for settlement made by the mediator or by the other party.

Termination of the Mediation

Article 18

The mediation shall be terminated

(i) by the signing of a settlement agreement by the parties covering any or all of the issues in dispute between the parties;

(ii) by the decision of the mediator if, in the mediator's judgment, further efforts at mediation are unlikely to lead to a resolution of the dispute;

(iii) by a written declaration of a party at any time after attending the first meeting of the parties with the mediator and before the signing of any settlement agreement.

Article 19

(a) Upon the termination of the mediation, the mediator shall promptly send to the Center a notice in writing that the mediation is terminated and shall indicate the date on which it terminated, whether or not the mediation resulted in a settlement of the dispute and, if so, whether the settlement was full or partial. The mediator shall send to the parties a copy of the notice so addressed to the Center.

(b) The Center shall keep the said notice of the mediator confidential and shall not, without the written authorization of the parties, disclose either the existence or the result of the mediation to any person.

(c) The Center may, however, include information concerning the mediation in any aggregate statistical data that it publishes concerning its activities, provided that such information does not reveal the identity of the parties or enable the particular circumstances of the dispute to be identified.

Article 20

Unless required by a court of law or authorized in writing by the parties, the mediator shall not act in any capacity whatsoever, otherwise than as a mediator, in any pending or future proceedings, whether judicial, arbitral or otherwise, relating to the subject matter of the dispute.

Registration Fee of the Center

Article 21

(a) The Request for Mediation shall be subject to the payment to the Center of a registration fee, which shall belong to the International Bureau of WIPO. The amount of the registration fee shall be fixed in accordance with the Schedule of Fees applicable on the date of the Request for Mediation.

(b) The registration fee shall not be refundable.

(d) If a party who has filed a Request for Mediation fails, within 15 days after a second reminder in writing from the Center, to pay the registration fee, it shall be deemed to have withdrawn its Request for Mediation.

Fees of the Mediator

Article 22

(a) The amount and currency of the fees of the mediator and the modalities and timing of their payment shall be fixed, in accordance with the provisions of this Article, by the Center, after consultation with the mediator and the parties.

(b) The amount of the fees shall, unless the parties and the mediator agree otherwise, be calculated on the basis of the hourly or, if applicable, daily indicative rates set out in the Schedule of Fees applicable on the date of the Request for Mediation, taking into account the amount in dispute, the complexity of the subject matter of the dispute and any other relevant circumstances of the case.

Deposits

Article 23

(a) The Center may, at the time of the appointment of the mediator, require each party to deposit an equal amount as an advance for the costs of the mediation, including, in particular, the estimated fees of the mediator and the other expenses of the mediation. The amount of the deposit shall be determined by the Center.

(b) The Center may require the parties to make supplementary deposits.

(c) If a party fails, within 15 days after a second reminder in writing from the Center, to pay the required deposit, the mediation shall be deemed to be terminated. The Center shall, by notice in writing, inform the parties and the mediator accordingly and indicate the date of termination.

(d) After the termination of the mediation, the Center shall render an accounting to the parties of any deposits made and return any unexpended balance to the parties or require the payment of any amount owing from the parties.

Costs

Article 24

Unless the parties agree otherwise, the registration fee, the fees of the mediator and all other expenses of the mediation, including, in particular, the required travel expenses of the mediator and any expenses associated with obtaining expert advice, shall be borne in equal shares by the parties.

Exclusion of Liability

Article 25

Except in respect of deliberate wrongdoing, the mediator, WIPO, the WIPO Center shall not be liable to any party for any act or omission in connection with any mediation conducted under these Rules.

Waiver of Defamation

Article 26

The parties and, by accepting appointment, the mediator agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the mediation shall not be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this Article may be pleaded in bar to any such action.

Suspension of Running of Limitation Period Under the Statute of Limitations

Article 27

The parties agree that, to the extent permitted by the applicable law, the running of the limitation period under the Statute of Limitations or an equivalent law shall be suspended in relation to the dispute that is the subject of the mediation from the date of the commencement of the mediation until the date of the termination of the mediation.

ANNEX D

WIPO ARBITRATION RULES

I. GENERAL PROVISIONS

Abbreviated Expressions

Article 1

In these Rules:

Arbitration Agreement means an agreement by the parties to submit to arbitration all or certain disputes that have arisen or that may arise between them; an Arbitration Agreement may be in the form of an arbitration clause in a contract or in the form of a separate contract;

Claimant means the party initiating an arbitration;

Respondent means the party against which the arbitration is initiated, as named in the Request for Arbitration;

Tribunal includes a sole arbitrator or all the arbitrators where more than one is appointed;

WIPO means the World Intellectual Property Organization;

Center means the WIPO Arbitration Center, a unit of the International Bureau of WIPO;

Words used in the singular include the plural and vice versa, as the context may require.

Scope of Application of Rules

Article 2

Where an Arbitration Agreement provides for arbitration under the WIPO Arbitration Rules, these Rules shall be deemed to form part of that Arbitration Agreement and the dispute shall be settled in accordance with these Rules, as in effect on the date of the commencement of the arbitration, unless the parties have agreed otherwise.

Article 3

(a) These Rules shall govern the arbitration, except that, where any of these Rules is in conflict with a provision of the law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.

(b) The law applicable to the arbitration shall be determined in accordance with Article 59(b).

Notices, Periods of Time

Article 4

(a) Any notice or other communication that may or is required to be given under these Rules shall be in writing and shall be delivered by expedited postal or courier service, or transmitted by telex, telefax or other means of telecommunication that provide a record thereof.

(b) A party's last known residence or place of business shall be a valid address for the purpose of any notice or other communication in the absence of any notification of a change by that party. Communications may in any event be addressed to a party in the manner stipulated or, failing such a stipulation, according to the practice followed in the course of the dealings between the parties.

(c) For the purpose of determining the date of commencement of a time limit, a notice or other communication shall be deemed to have been received on the day it is delivered or, in the case of telecommunications, transmitted in accordance with paragraphs (a) and (b) of this Article.

(d) For the purpose of determining compliance with a time limit, a notice or other communication shall be deemed to have been sent, made or transmitted if it is dispatched, in accordance with paragraphs (a) and (b) of this Article, prior to or on the day of the expiration of the time limit.

(e) For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice or other communication is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day which follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.

(f) The parties may agree to reduce or extend the periods of time referred to in Articles 11, 15(b), 16(b), 17(b), 17(c), 18(b), 19(b)(iii), 41(a) and 42(a).

(g) The Center may, at the request of a party or on its own motion, extend the periods of time referred to in Articles 11, 15(b), 16(b), 17(b), 17(c), 18(b), 19(b)(iii), 67(d), 68(e) and 70(e).

Documents Required to Be Submitted to the Center

Article 5

(a) Until the notification by the Center of the establishment of the Tribunal, any written

statement, notice or other communication required or allowed under Articles 6 to 36 shall be submitted by a party to the Center and a copy thereof shall at the same time be transmitted by that party to the other party.

(b) Any written statement, notice or other communication so sent to the Center shall be sent in

a number of copies equal to the number required to provide one copy for each envisaged arbitrator and one for the Center.

statements, notices or other communications shall be submitted by a party directly to the Tribunal and a copy thereof shall at the same time be supplied by that party to the other party.

(d) The Tribunal shall send to the Center a copy of each order or other decision that it makes.

II. COMMENCEMENT OF THE ARBITRATION

Request for Arbitration

Article 6

The Claimant shall transmit the Request for Arbitration to the Center and to the Respondent.

Article 7

The date of commencement of the arbitration shall be the date on which the Request for Arbitration is received by the Center.

Article 8

The Center shall inform the Claimant and the Respondent of the receipt by it of the Request for Arbitration and of the date of the commencement of the arbitration.

Article 9

The Request for Arbitration shall contain:

(i) a demand that the dispute be referred to arbitration under the WIPO Arbitration Rules;

(ii) the names, addresses and telephone, telex, telefax or other communication references of the parties and of the representative of the Claimant;

(iii) a copy of the Arbitration Agreement and, if applicable, any separate choice-of-law clause;

(iv) a brief description of the nature and circumstances of the dispute, including an indication of the rights and property involved and the nature of any technology involved;

(v) a statement of the relief sought and an indication, to the extent possible, of any amount claimed;

(vi) any appointment that is required by, or observations that the Claimant considers useful in connection with, Articles 14 to 20.

Article 10

The Request for Arbitration may also be accompanied by the Statement of Claim referred to in Article 41.

Answer to the Request

Article 11

Within 30 days from the date on which the Respondent receives the Request for Arbitration from the Claimant, the Respondent shall address to the Center and to the Claimant an Answer to the Request which shall contain comments on any of the elements in the Request for Arbitration and may include indications of any counterclaim or setoff.

Article 12

If the Claimant has filed a Statement of Claim with the Request for Arbitration pursuant to Article 10, the Answer to the Request may also be accompanied by the Statement of Defense referred to in Article 42.

Representation

Article 13

(a) The parties may be represented by persons of their choice, irrespective of, in particular, nationality or professional qualification. The names, addresses and telephone, telex, telefax or other communication references of representatives shall be communicated to the Center, the other party and, after its establishment, the Tribunal.

(b) Each party shall ensure that its representatives have sufficient time available to enable the arbitration to proceed expeditiously.

III. COMPOSITION AND ESTABLISHMENT OF THE TRIBUNAL

Number of Arbitrators

Article 14

(a) The Tribunal shall consist of such number of arbitrators as has been agreed by the parties.

(b) Where the parties have not agreed on the number of arbitrators, the Tribunal shall consist of a sole arbitrator, except where the Center in its discretion determines that, in view of all the circumstances of the case, a Tribunal composed of three members is appropriate.

Appointment Pursuant to Procedure Agreed Upon by the Parties

Article 15

(a) If the parties have agreed on a procedure of appointing the arbitrator or arbitrators other than as envisaged in Articles 16 to 20, that procedure shall be followed.

(b) If the Tribunal has not been established pursuant to such procedure within the period of time agreed upon by the parties or, in the absence of such an agreed period of time, within 45 days after the commencement of the arbitration, the Tribunal shall be established or completed, as the case may be, in accordance with Article 19.

Appointment of a Sole Arbitrator

Article 16

(a) Where a sole arbitrator is to be appointed and the parties have not agreed on a procedure of appointment, the sole arbitrator shall be appointed jointly by the parties.

(b) If the appointment of the sole arbitrator is not made within the period of time agreed upon by the parties or, in the absence of such an agreed period of time, within 30 days after the commencement of the arbitration, the sole arbitrator shall be appointed in accordance with Article 19.

Appointment of Three Arbitrators

Article 17

(a) Where three arbitrators are to be appointed and the parties have not agreed upon a

procedure of appointment, the arbitrators shall be appointed in accordance with this Article.

(b) The Claimant shall appoint an arbitrator in its Request for Arbitration. The Respondent shall appoint an arbitrator within 30 days from the date on which it receives the Request for Arbitration. The two arbitrators thus appointed shall, within 20 days after the appointment of the second arbitrator, appoint a third arbitrator, who shall be the presiding arbitrator.

the exercise of the discretion of the Center under Article 14(b), the Claimant shall, by notice to the Center and to the Respondent, appoint an arbitrator within 15 days after the receipt by it of notification by the Center that the Tribunal is to be composed of three arbitrators. The Respondent shall appoint an arbitrator within 30 days after the receipt by it of the said notification. The two arbitrators thus appointed shall, within 20 days after the appointment of the second arbitrator, appoint a third arbitrator, who shall be the presiding arbitrator.

(d) If the appointment of any arbitrator is not made within the applicable period of time referred to in the preceding paragraphs, that arbitrator shall be appointed in accordance with Article 19.

Appointment of Three Arbitrators in Case of Multiple Claimants or Respondents

Article 18

(a) Where

(i) three arbitrators are to be appointed,

(ii) the parties have not agreed on a procedure of appointment, and

(iii) the Request for Arbitration names more than one Claimant,

the Claimants shall make a joint appointment of an arbitrator in their Request for Arbitration. The appointment of the second arbitrator and the presiding arbitrator shall, subject to paragraph (b) of this Article, take place in accordance with Article 17(b), (c) or (d), as the case may be.

(b) Where

(i) three arbitrators are to be appointed,

(ii) the parties have not agreed on a procedure of appointment, and

(iii) the Request for Arbitration names more than one Respondent,

the Respondents shall jointly appoint an arbitrator. If, for whatever reason, the Respondents do not make a joint appointment of an arbitrator within 30 days after receiving the Request for Arbitration, any appointment of the arbitrator previously made by the Claimant or Claimants shall be considered void and two arbitrators shall be appointed by the Center. The two arbitrators thus appointed shall, within 30 days after the appointment of the second arbitrator, appoint a third arbitrator, who shall be the presiding arbitrator.

(i) three arbitrators are to be appointed,

(ii) the parties have agreed upon a procedure of appointment, and

(iii) the Request for Arbitration names more than one Claimant or more than one Respondent,

paragraphs (a) and (b) of this Article shall, notwithstanding Article 15(a), apply irrespective of any contractual provisions in the Arbitration Agreement with respect to the procedure of appointment, unless those provisions have expressly excluded the application of this Article.

Default Appointment

Article 19

(a) If a party has failed to appoint an arbitrator as required under Articles 15, 17 or 18, the Center shall, in lieu of that party, forthwith make the appointment.

(b) If the sole or presiding arbitrator has not been appointed as required under Articles 15, 16, 17 or 18, the appointment shall take place in accordance with the following procedure:

(i) The Center shall send to each party an identical list of candidates. The list shall comprise the names of at least three candidates in alphabetical order. The list shall include or be accompanied by a brief statement of each candidate's qualifications. If the parties have agreed on any particular qualifications, the list shall contain only the names of candidates that satisfy those qualifications.

(ii) Each party shall have the right to delete the name of any candidate or candidates to whose appointment it objects and shall number any remaining candidates in order of preference.

(iii) Each party shall return the marked list to the Center within 20 days after the date on which the list is received by it. Any party failing to return a marked list within that period of time shall be deemed to have assented to all candidates appearing on the list.

(iv) As soon as possible after receipt by it of the lists from the parties, or failing this, after the expiration of the period of time specified in the previous sub-paragraph, the Center shall, taking into account the preferences and objections expressed by the parties, invite a person from the list to be the sole or presiding arbitrator.

(v) If the lists which have been returned do not show a person who is acceptable as arbitrator to both parties, the Center shall be authorized to appoint the sole or presiding arbitrator. The Center shall similarly be authorized to do so if a person is not able or does not wish to accept the Center's invitation to be the sole or presiding arbitrator, or if there appear to be other reasons precluding that person from being the sole or presiding arbitrator, and there does not remain on the lists a person who is acceptable as arbitrator to both parties.

(c) Notwithstanding the provisions of paragraph (b), the Center shall be authorized to appoint the sole or presiding arbitrator if it determines in its discretion that the procedure described in that paragraph is not appropriate for the case.

Nationality of Arbitrators

Article 20

(a) An agreement of the parties concerning the nationality of arbitrators shall be respected.

(b) If the parties have not agreed on the nationality of the sole or presiding arbitrator, such

arbitrator shall, in the absence of special circumstances such as the need to appoint a person having particular qualifications, be a national of a country other than the countries of the parties.

Communication Between Parties and Candidates for Appointment as Arbitrator

Article 21

No party or anyone acting on its behalf shall have any ex parte communication with any candidate for appointment as arbitrator except to discuss the candidate's qualifications, availability or independence in relation to the parties.

Impartiality and Independence

Article 22

(a) Each arbitrator shall be impartial and independent.

(b) Each prospective arbitrator shall, before accepting appointment, disclose to the parties, the

Center and any other arbitrator who has already been appointed any circumstances that might give rise to justifiable doubt as to the arbitrator's impartiality or independence, or confirm in writing that no such circumstances exist.

justifiable doubt as to any arbitrator's impartiality or independence, the arbitrator shall promptly disclose such circumstances to the parties, the Center and the other arbitrators.

Availability, Acceptance and Notification

Article 23

(a) Each arbitrator shall, by accepting appointment, be deemed to have undertaken to make

available sufficient time to enable the arbitration to be conducted and completed expeditiously.

(b) Each prospective arbitrator shall accept appointment in writing and shall communicate

such acceptance to the Center.

Challenge of Arbitrators

Article 24

(a) Any arbitrator may be challenged by a party if circumstances exist that give rise to

justifiable doubt as to the arbitrator's impartiality or independence.

(b) A party may challenge an arbitrator whom it has appointed or in whose appointment it

concurred only for reasons of which it becomes aware after the appointment has been made.

Article 25

A party challenging an arbitrator shall send notice to the Center, the Tribunal and the other party, stating the reasons for the challenge, within 15 days after being notified of that arbitrator's appointment or after becoming aware of the circumstances that it considers give rise to justifiable doubt as to that arbitrator's impartiality or independence.

Article 26

When an arbitrator has been challenged by a party, the other party shall have the right to respond to the challenge and shall, if it exercises this right, send, within 15 days after receipt of the notice referred to in Article 25, a copy of its response to the Center, the party making the challenge and the arbitrators.

Article 27

The Tribunal may, in its discretion, suspend or continue the arbitral proceedings during the pendency of the challenge.

Article 28

The other party may agree to the challenge or the arbitrator may voluntarily withdraw. In either case, the arbitrator shall be replaced without any implication that the grounds for the challenge are valid.

Article 29

If the other party does not agree to the challenge and the challenged arbitrator does not withdraw, the decision on the challenge shall be made by the Center in accordance with its internal procedures. Such a decision is of an administrative nature and shall be final. The Center shall not be required to state reasons for its decision.

Release from Appointment

Article 30

At the arbitrator's own request, an arbitrator may be released from appointment as arbitrator either with the consent of the parties or by the Center.

Article 31

Irrespective of any request by the arbitrator, the parties may jointly release the arbitrator from appointment as arbitrator. The parties shall promptly notify the Center of such release.

Article 32

At the request of a party or on its own motion, the Center may release an arbitrator from appointment as arbitrator if the arbitrator has become de jure or de facto unable to fulfill, or fails to fulfill, the duties of an arbitrator. In such a case, the parties shall be offered the opportunity to express their views thereon and the provisions of Articles 26 to 29 shall apply mutatis mutandis.

Replacement of an Arbitrator

Article 33

(a) Whenever necessary, a substitute arbitrator shall be appointed pursuant to the procedure

provided for in Articles 15 to 19 that was applicable to the appointment of the arbitrator being replaced.

(b) In the event that an arbitrator appointed by a party has either been successfully challenged

on grounds which were known or should have been known to that party at the time of appointment, or has been released from appointment as arbitrator in accordance with Article 32, the Center shall have the discretion not to permit that party to make a new appointment. If it chooses to exercise this discretion, the Center shall make the substitute appointment.

agreed by the parties.

Article 34

Whenever a substitute arbitrator is appointed, the Tribunal shall, having regard to any observations of the parties, determine in its sole discretion whether all or part of any prior hearings are to be repeated.

Truncated Tribunal

Article 35

(a) If an arbitrator on a three-person Tribunal, though duly notified and without good cause,

fails to participate in the work of the Tribunal, the two other arbitrators shall, unless a party has made an application under Article 32, have the power in their sole discretion to continue the arbitration and to make any award, order or other decision, notwithstanding the failure of the third arbitrator to participate. In determining whether to continue the arbitration or to render any award, order or other decision without the participation of an arbitrator, the two other arbitrators shall take into account the stage of the arbitration, the reason, if any, expressed by the third arbitrator for such non-participation, and such other matters as they consider appropriate in the circumstances of the case.

(b) In the event that the two other arbitrators determine not to continue the arbitration without

the participation of a third arbitrator, the Center shall, on proof satisfactory to it of the failure of the arbitrator to participate in the work of the Tribunal, declare the office vacant, and a substitute arbitrator shall be appointed by the Center in the exercise of the discretion defined in Article 33, unless the parties agree otherwise.

Pleas as to the Jurisdiction of the Tribunal

Article 36

(a) The Tribunal shall have the power to hear and determine objections to its own jurisdiction,

including any objections with respect to form, existence, validity or scope of the Arbitration Agreement examined pursuant to Article 59(b).

(b) The Tribunal shall have the power to determine the existence or validity of any contract of

which the Arbitration Agreement forms part or to which it relates.

Statement of Defense or, with respect to a counterclaim or a setoff, the Statement of Defense thereto, failing which any such plea shall be barred in the subsequent arbitral proceedings or before any court. A plea that the Tribunal is exceeding the scope of its authority shall be raised as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings. The Tribunal may, in either case, admit a later plea if it considers the delay justified.

(d) The Tribunal may rule on a plea referred to in paragraph (c) as a preliminary question or,

in its sole discretion, decide on such a plea in the final award.

(e) A plea that the Tribunal lacks jurisdiction shall not preclude the Center from administering

the arbitration.

IV. CONDUCT OF THE ARBITRATION

Transmission of the File to the Tribunal

Article 37

The Center shall transmit the file to each arbitrator as soon as the arbitrator is appointed.

General Powers of the Tribunal

Article 38

(a) Subject to Article 3, the Tribunal may conduct the arbitration in such manner as it

considers appropriate.

(b) In all cases, the Tribunal shall ensure that the parties are treated with equality and that

each party is given a fair opportunity to present its case.

may, at the request of a party or on its own motion, extend in exceptional cases a period of time fixed by these Rules, by itself or agreed to by the parties. In urgent cases, such an extension may be granted by the presiding arbitrator alone.

Place of Arbitration

Article 39

(a) Unless otherwise agreed by the parties, the place of arbitration shall be decided by the Center, taking into consideration any observations of the parties and the circumstances of the arbitration.

(b) The Tribunal may, after consultation with the parties, conduct hearings at any place that it considers appropriate. It may deliberate wherever it deems appropriate.

Language of Arbitration

Article 40

(a) Unless otherwise agreed by the parties, the language of the arbitration shall be the language of the Arbitration Agreement, subject to the power of the Tribunal to determine otherwise, having regard to any observations of the parties and the circumstances of the arbitration.

(b) The Tribunal may order that any documents submitted in languages other than the language of arbitration be accompanied by a translation in whole or in part into the language of arbitration.

Statement of Claim

Article 41

(a) Unless the Statement of Claim accompanied the Request for Arbitration, the Claimant shall, within 30 days after receipt of notification from the Center of the establishment of the Tribunal, communicate its Statement of Claim to the Respondent and to the Tribunal.

(b) The Statement of Claim shall contain a comprehensive statement of the facts and legal arguments supporting the claim, including a statement of the relief sought.

(c) The Statement of Claim shall, to as large an extent as possible, be accompanied by the documentary evidence upon which the Claimant relies, together with a schedule of such documents. Where the documentary evidence is especially voluminous, the Claimant may add a reference to further documents it is prepared to submit.

Statement of Defense

Article 42

(a) The Respondent shall, within 30 days after receipt of the Statement of Claim or within 30 days after receipt of notification from the Center of the establishment of the Tribunal, whichever occurs later, communicate its Statement of Defense to the Claimant and to the Tribunal.

(b) The Statement of Defense shall reply to the particulars of the Statement of Claim required pursuant to Article 41(b). The Statement of Defense shall be accompanied by the corresponding documentary evidence described in Article 41(c).

(c) Any counterclaim or setoff by the Respondent shall be made or asserted in the Statement of Defense or, in exceptional circumstances, at a later stage in the arbitral proceedings if so determined by the Tribunal. Any such counterclaim or setoff shall contain the same particulars as those specified in Article 41(b) and (c).

Further Written Statements

Article 43

(a) In the event that a counterclaim or setoff has been made or asserted, the Claimant shall reply to the particulars thereof. Article 42(a) and (b) shall apply mutatis mutandis to such reply.

(b) The Tribunal may, in its discretion, allow or require further written statements.

Amendments to Claims or Defense

Article 44

Subject to any contrary agreement by the parties, a party may amend or supplement its claim, counterclaim, defense or setoff during the course of the arbitral proceedings, unless the Tribunal considers it inappropriate to allow such amendment having regard to its nature or the delay in making it and to the provisions of Article 38(b) and (c).

Communication Between Parties and Tribunal

Article 45

Except as otherwise provided in these Rules or permitted by the Tribunal, no party or anyone acting on its behalf may have any ex parte communication with any arbitrator with respect to any matter of substance relating to the arbitration, it being understood that nothing in this paragraph shall prohibit ex parte communications which concern matters of a purely organizational nature, such as the physical facilities, place, date or time of the hearings.

Interim Measures of Protection; Security for Claims and Costs

Article 46

(a) At the request of a party, the Tribunal may issue any provisional orders or take other interim measures it deems necessary, including injunctions and measures for the conservation of goods which form part of the subject matter in dispute, such as an order for their deposit with a third person or for the sale of perishable goods. The Tribunal may make the granting of such measures subject to appropriate security being furnished by the requesting party.

(b) At the request of a party, the Tribunal may, if it considers it to be required by exceptional

circumstances, order the other party to provide security, in a form to be determined by the Tribunal, for the claim or counterclaim, as well as for costs referred to in Article 72.

(d) A request addressed by a party to a judicial authority for interim measures or for security for the claim or counterclaim, or for the implementation of any such measures or orders granted by the Tribunal, shall not be deemed incompatible with the Arbitration Agreement, or deemed to be a waiver of that Agreement.

Preparatory Conference

Article 47

The Tribunal may, in general following the submission of the Statement of Defense, conduct a preparatory conference with the parties for the purpose of organizing and scheduling the subsequent proceedings.

Evidence

Article 48

(a) The Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.

(b) At any time during the arbitration, the Tribunal may, at the request of a party or on its own motion, order a party to produce such documents or other evidence as it considers necessary or appropriate and may order a party to make available to the Tribunal or to an expert appointed by it or to the other party any property in its possession or control for inspection or testing.

Experiments

Article 49

(a) A party may give notice to the Tribunal and to the other party at any reasonable time before a hearing that specified experiments have been conducted on which it intends to rely. The notice shall specify the purpose of the experiment, a summary of the experiment, the method employed, the results and the conclusion. The other party may by notice to the Tribunal request that any or all such experiments be repeated in its presence. If the Tribunal considers such request justified, it shall determine the timetable for the repetition of the experiments.

(b) For the purposes of this Article, "experiments" shall include tests or other processes of verification.

Site Visits

Article 50

The Tribunal may, at the request of a party or on its own motion, inspect or require the inspection of any site, property, machinery, facility, production line, model, film, material, product or process as it deems appropriate. A party may request such an inspection at any reasonable time prior to any hearing, and the Tribunal, if it grants such a request, shall determine the timing and arrangements for the inspection.

Agreed Primers and Models

Article 51

The Tribunal may, where the parties so agree, determine that they shall jointly provide:

(i) a technical primer setting out the background of the scientific, technical or other specialized information necessary to fully understand the matters in issue; and

(ii) models, drawings or other materials that the Tribunal or the parties require for reference purposes at any hearing.

Disclosure of Trade Secrets and Other Confidential Information

Article 52

(a) For the purposes of this Article, confidential information shall mean any information, regardless of the medium in which it is expressed, which is

(i) in the possession of a party,

(ii) not accessible to the public,

(iii) of commercial, financial or industrial significance, and

(iv) treated as confidential by the party possessing it.

(b) A party invoking the confidentiality of any information it wishes or is required to submit in the arbitration, including to an expert appointed by the Tribunal, shall make an application to have the information classified as confidential by notice to the Tribunal, with a copy to the other party. Without disclosing the substance of the information, the party shall give in the notice the reasons for which it considers the information confidential.

(c) The Tribunal shall determine whether the information is to be classified as confidential and of such a nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party invoking its confidentiality. If the Tribunal so determines, it shall decide under which conditions and to whom the confidential information may in part or in whole be disclosed and shall require any person to whom the confidential information is to be disclosed to sign an appropriate confidentiality undertaking.

(d) In exceptional circumstances, in lieu of itself determining whether the information is to be classified as confidential and of such nature that the absence of special measures of protection in the proceedings would be likely to cause serious harm to the party invoking its confidentiality, the Tribunal may, at the request of a party or on its own motion and after consultation with the parties, designate a confidentiality advisor who will determine whether the information is to be so classified, and, if so, decide under which conditions and to whom it may in part or in whole be disclosed. Any such confidentiality advisor shall be required to sign an appropriate confidentiality undertaking.

(e) The Tribunal may also, at the request of a party or on its own motion, appoint the confidentiality advisor as an expert in accordance with Article 55 in order to report to it, on the basis of the confidential information, on specific issues designated by the Tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the Tribunal.

Hearings

Article 53

(a) If either party so requests, the Tribunal shall hold a hearing for the presentation of evidence by witnesses, including expert witnesses, or for oral argument or for both. In the absence of a request, the Tribunal shall decide whether to hold such a hearing or hearings. If no hearings are held, the proceedings shall be conducted on the basis of documents and other materials alone.

(b) In the event of a hearing, the Tribunal shall give the parties adequate advance notice of the date, time and place thereof.

(d) The Tribunal shall determine whether and, if so, in what form a record shall be made of any hearing.

Witnesses

Article 54

(a) Before any hearing, the Tribunal may require either party to give notice of the identity of witnesses it wishes to call, as well as of the subject matter of their testimony and its relevance to the issues.

(b) The Tribunal has discretion, on the grounds of redundance and irrelevance, to limit or refuse the appearance of any witness, whether witness of fact or expert witness.

(c) Any witness who gives oral evidence may be questioned, under the control of the Tribunal, by each of the parties. The Tribunal may put questions at any stage of the examination of the witnesses.

(d) The testimony of witnesses may, either at the choice of a party or as directed by the Tribunal, be submitted in written form, whether by way of signed statements, sworn affidavits or otherwise, in which case the Tribunal may make the admissibility of the testimony conditional upon the witnesses being made available for oral testimony.

(e) A party shall be responsible for the practical arrangements, cost and availability of any witness it calls.

(f) The Tribunal shall determine whether any witness shall retire during any part of the proceedings, particularly during the testimony of other witnesses.

Experts Appointed by the Tribunal

Article 55

(a) The Tribunal may, after consultation with the parties, appoint one or more independent experts to report to it on specific issues designated by the Tribunal. A copy of the expert's terms of reference, established by the Tribunal, having regard to any observations of the parties, shall be communicated to the parties. Any such expert shall be required to sign an appropriate confidentiality undertaking.

(b) Subject to Article 52, upon receipt of the expert's report, the Tribunal shall communicate a copy of the report to the parties, which shall be given the opportunity to express, in writing, their opinion on the report. A party may, subject to Article 52, examine any document on which the expert has relied in such a report.

(c) At the request of a party, the parties shall be given the opportunity to question the expert at a hearing. At this hearing, the parties may present expert witnesses to testify on the points at issue.

(d) The opinion of any expert on the issue or issues submitted to the expert shall be subject to the Tribunal's power of assessment of those issues in the context of all the circumstances of the case, unless the parties have agreed that the expert's determination shall be conclusive in respect of any specific issue.

Default

Article 56

(a) If the Claimant, without showing good cause, fails to submit its Statement of Claim in accordance with Article 41, the Tribunal shall terminate the proceedings.

(b) If the Respondent, without showing good cause, fails to submit its Statement of Defense in accordance with Article 42, the Tribunal may nevertheless proceed with the arbitration and make the award.

(c) The Tribunal may also proceed with the arbitration and make the award if a party, without showing good cause, fails to avail itself of the opportunity to present its case within the period of time determined by the Tribunal.

(d) If a party, without showing good cause, fails to comply with any provision of, or requirement under, these Rules or any direction given by the Tribunal, the Tribunal may draw the inferences therefrom that it considers appropriate.

Closure of Proceedings

Article 57

(a) The Tribunal shall declare the proceedings closed when it is satisfied that the parties have had adequate opportunity to present submissions and evidence.

(b) The Tribunal may, if it considers it necessary owing to exceptional circumstances, decide, on its own motion or upon application of a party, to reopen the proceedings it declared to be closed at any time before the award is made.

Waiver

Article 58

A party which knows that any provision of, or requirement under, these Rules, or any direction given by the Tribunal, has not been complied with, and yet proceeds with the arbitration without promptly recording an objection to such non-compliance, shall be deemed to have waived its right to object.

V. AWARDS AND OTHER DECISIONS

Laws Applicable to the Substance of the Dispute, the Arbitration and the Arbitration Agreement

Article 59

(a) The Tribunal shall decide the substance of the dispute in accordance with the law or rules of law chosen by the parties. Any designation of the law of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules. Failing a choice by the parties, the Tribunal shall apply the law or rules of law that it determines to be appropriate. In all cases, the Tribunal shall decide having due regard to the terms of any relevant contract and taking into account applicable trade usages. The Tribunal may decide as amiable compositeur or ex aequo et bono only if the parties have expressly authorized it to do so.

(b) The law applicable to the arbitration shall be the arbitration law of the place of arbitration, unless the parties have expressly agreed on the application of another arbitration law and such agreement is permitted by the law of the place of arbitration.

(c) An Arbitration Agreement shall be regarded as effective if it conforms to the requirements concerning form, existence, validity and scope of either the law or rules of law applicable in accordance with paragraph (a), or the law applicable in accordance with paragraph (b).

Currency and Interest

Article 60

(a) Monetary amounts in the award may be expressed in any currency.

(b) The Tribunal may award simple or compound interest to be paid by a party on any sum awarded against that party. It shall be free to determine the interest at such rates as it considers to be appropriate, without being bound by legal rates of interest, and shall be free to determine the period for which the interest shall be paid.

Decision-Making

Article 61

Unless the parties have agreed otherwise, where there is more than one arbitrator, any award, order or other decision of the Tribunal shall be made by a majority. In the absence of a majority, the presiding arbitrator shall make the award, order or other decision as if acting as sole arbitrator.

Form and Notification of Awards

Article 62

(a) The Tribunal may make preliminary, interim, interlocutory, partial or final awards.

(b) The award shall be in writing and shall state the date on which it was made, as well as the

place of arbitration in accordance with Article 39(a).

(c) The award shall state the reasons on which it is based, unless the parties have agreed that no reasons should be stated and the law applicable to the arbitration does not require the statement of such reasons.

(d) The award shall be signed by the arbitrator or arbitrators. The signature of the award by a majority of the arbitrators, or, in the case of Article 61, second sentence, by the presiding arbitrator, shall be sufficient. Where an arbitrator fails to sign, the award shall state the reason for the absence of the signature.

(e) The Tribunal may consult the Center with regard to matters of form, particularly to ensure the enforceability of the award.

(f) The award shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the arbitrator or arbitrators and the Center. The Center shall formally communicate an original of the award to each party and the arbitrator or arbitrators.

(g) At the request of a party, the Center shall provide it, at cost, with a copy of the award certified by the Center. A copy so certified shall be deemed to comply with the requirements of Article IV(1)(a) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, June 10, 1958.

Time Period for Delivery of the Final Award

Article 63

(a) The arbitration should, wherever reasonably possible, be heard and the proceedings declared closed within not more than nine months after either the delivery of the Statement of Defense or the establishment of the Tribunal, whichever event occurs later. The final award should, wherever reasonably possible, be made within three months thereafter.

(b) If the proceedings are not declared closed within the period of time specified in paragraph (a), the Tribunal shall send the Center a status report on the arbitration, with a copy to each party. It shall send a further status report to the Center, and a copy to each party, at the end of each ensuing period of three months during which the proceedings have not been declared closed.

(c) If the final award is not made within three months after the closure of the proceedings, the Tribunal shall send the Center a written explanation for the delay, with a copy to each party. It shall send a further explanation, and a copy to each party, at the end of each ensuing period of one month until the final award is made.

Effect of Award

Article 64

(a) By agreeing to arbitration under these Rules, the parties undertake to carry out the award without delay, and waive their right to any form of appeal or recourse to a court of law or other judicial authority, insofar as such waiver may validly be made under the applicable law.

(b) The award shall be effective and binding on the parties as from the date it is communicated by the Center pursuant to Article 62(f), second sentence.

Settlement or Other Grounds for Termination

Article 65

(a) The Tribunal may suggest that the parties explore settlement at such times as the Tribunal may deem appropriate.

(b) If, before the award is made, the parties agree on a settlement of the dispute, the Tribunal shall terminate the arbitration and, if requested jointly by the parties, record the settlement in the form of a consent award. The Tribunal shall not be obliged to give reasons for such an award.

(c) If, before the award is made, the continuation of the arbitration becomes unnecessary or impossible for any reason not mentioned in paragraph (b), the Tribunal shall inform the parties of its intention to terminate the arbitration. The Tribunal shall have the power to issue such an order terminating the arbitration, unless a party raises justifiable grounds for objection within a period of time to be determined by the Tribunal.

(d) The consent award or the order for termination of the arbitration shall be signed by the arbitrator or arbitrators in accordance with Article 62(d) and shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the arbitrator or arbitrators and the Center. The Center shall formally communicate an original of the consent award or the order for termination to each party and the arbitrator or arbitrators.

Correction of the Award and Additional Award

Article 66

(a) Within 30 days after receipt of the award, a party may, by notice to the Tribunal, with a copy to the Center and the other party, request the Tribunal to correct in the award any clerical, typographical or computational errors. If the Tribunal considers the request to be justified, it shall make the correction within 30 days after receipt of the request. Any correction, which shall take the form of a separate memorandum, signed by the Tribunal in accordance with Article 62(d), shall become part of the award.

(b) The Tribunal may correct any error of the type referred to in paragraph (a) on its own initiative within 30 days after the date of the award.

(c) A party may, within 30 days after receipt of the award, by notice to the Tribunal, with a copy to the Center and the other party, request the Tribunal to make an additional award as to claims presented in the arbitral proceedings but not dealt with in the award. Before deciding on the request, the Tribunal shall give the parties an opportunity to be heard. If the Tribunal considers the request to be justified, it shall, wherever reasonably possible, make the additional award within 60 days of receipt of the request.

VI. FEES AND COSTS

Fees of the Center

Article 67

(a) The Request for Arbitration shall be subject to the payment to the Center of a registration fee, which shall belong to the International Bureau of WIPO. The amount of the registration fee shall be fixed in the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.

(b) The registration fee shall not be refundable.

(d) If a Claimant fails, within 15 days after a second reminder in writing from the Center, to pay the registration fee, it shall be deemed to have withdrawn its Request for Arbitration.

Article 68

(a) An administration fee, which shall belong to the International Bureau of WIPO, shall be payable by the Claimant to the Center within 30 days after the commencement of the arbitration. The Center shall notify the Claimant of the amount of the administration fee as soon as possible after receipt of the Request for Arbitration.

(b) In the case of a counterclaim, an administration fee shall also be payable by the Respondent to the Center within 30 days after the date on which the counterclaim referred to in Article 42(c) is made. The Center shall notify the Respondent of the amount of the administration fee as soon as possible after receipt of notification of the counterclaim.

(c) The amount of the administration fee shall be calculated in accordance with the Schedule of Fees applicable on the date of commencement of the arbitration.

(d) Where a claim or counterclaim is increased, the amount of the administration fee may be increased in accordance with the Schedule of Fees applicable under paragraph (c), and the increased amount shall be payable by the Claimant or the Respondent, as the case may be.

(e) If a party fails, within 15 days after a second reminder in writing from the Center, to pay any administration fee due, it shall be deemed to have withdrawn its claim or counterclaim, or its increase in claim or counterclaim, as the case may be.

(f) The Tribunal shall, in a timely manner, inform the Center of the amount of the claim and any counterclaim, as well as any increase thereof.

Fees of the Arbitrators

Article 69

(a) The amount and currency of the fees of the arbitrators and the modalities and timing of their payment shall be fixed, in accordance with the provisions of this Article, by the Center, after consultation with the arbitrators and the parties.

(b) The amount of the fees of the arbitrators shall, unless the parties and arbitrators agree otherwise, be determined within the range of minimum and maximum fees set out in the Schedule of Fees applicable on the date of the commencement of the arbitration, taking into account the estimated time needed by the arbitrators for conducting the arbitration, the amount in dispute, the complexity of the subject matter of the dispute, the urgency of the case and any other relevant circumstances of the case.

Deposits

Article 70

(a) Upon receipt of notification from the Center of the establishment of the Tribunal, the Claimant and the Respondent shall each deposit an equal amount as an advance for the costs of arbitration referred to in Article 71. The amount of the deposit shall be determined by the Center.

(b) In the course of the arbitration, the Center may require that the parties make supplementary deposits.

(c) If the required deposits are not paid in full within 30 days after receipt of the corresponding notification, the Center shall so inform the parties in order that one or other of them may make the required payment.

(d) Where the amount of the counterclaim greatly exceeds the amount of the claim or involves the examination of significantly different matters, or where it otherwise appears appropriate in the circumstances, the Center in its discretion may establish two separate deposits on account of claim and counterclaim. If separate deposits are established, the totality of the deposit on account of claim shall be paid by the Claimant and the totality of the deposit on account of counterclaim shall be paid by the Respondent.

(e) If a party fails, within 15 days after a second reminder in writing from the Center, to pay the required deposit, it shall be deemed to have withdrawn the relevant claim or counterclaim.

(f) After the award has been made, the Center shall, in accordance with the award, render an accounting to the parties of the deposits received and return any unexpended balance to the parties or require the payment of any amount owing from the parties.

Award of Costs of Arbitration

Article 71

(a) In its award, the Tribunal shall fix the costs of arbitration, which shall consist of:

(i) the arbitrators' fees,

(ii) the properly incurred travel, communication and other expenses of the arbitrators,

(iii) the costs of expert advice and such other assistance required by the Tribunal pursuant to these Rules, and

(iv) such other expenses as are necessary for the conduct of the arbitration proceedings, such as the cost of meeting and hearing facilities.

(b) The aforementioned costs shall, as far as possible, be debited from the deposits required under Article 70.

(c) The Tribunal shall, subject to any agreement of the parties, apportion the costs of arbitration and the registration and administration fees of the Center between the parties in the light of all the circumstances and the outcome of the arbitration.

Award of Costs Incurred by a Party

Article 72

In its award, the Tribunal may, subject to any contrary agreement by the parties and in the light of all the circumstances and the outcome of the arbitration, order a party to pay the whole or part of reasonable expenses incurred by the other party in presenting its case, including those incurred for legal representatives and witnesses.

VII. CONFIDENTIALITY

Confidentiality of the Existence of the Arbitration

Article 73

(a) Except to the extent necessary in connection with a court challenge to the arbitration or an action for enforcement of an award, no information concerning the existence of an arbitration may be unilaterally disclosed by a party to any third party unless it is required to do so by law or by a competent regulatory body, and then only

(i) by disclosing no more than what is legally required, and

(ii) by furnishing to the Tribunal and to the other party, if the disclosure takes place during the arbitration, or to the other party alone, if the disclosure takes place after the termination of the arbitration, details of the disclosure and an explanation of the reason for it.

(b) Notwithstanding paragraph (a), a party may disclose to a third party the names of the parties to the arbitration and the relief requested for the purpose of satisfying any obligation of good faith or candor owed to that third party.

Confidentiality of Disclosures Made During the Arbitration

Article 74

(a) In addition to any specific measures that may be available under Article 52, any documentary or other evidence given by a party or a witness in the arbitration shall be treated as confidential and, to the extent that such evidence describes information that is not in the public domain, shall not be used or disclosed to any third party by a party whose access to that information arises exclusively as a result of its participation in the arbitration for any purpose without the consent of the parties or order of a court having jurisdiction.

(b) For the purposes of this Article, a witness called by a party shall not be considered to be a

third party. To the extent that a witness is given access to evidence or other information obtained in the arbitration in order to prepare the witness's testimony, the party calling such witness shall be responsible for the maintenance by the witness of the same degree of confidentiality as that required of the party.

Confidentiality of the Award

Article 75

The award shall be treated as confidential by the parties and may only be disclosed to a third party if and to the extent that

(i) the parties consent, or

(ii) it falls into the public domain as a result of an action before a national court or other competent authority, or

(iii) it must be disclosed in order to comply with a legal requirement imposed on a party or in order to establish or protect a party's legal rights against a third party.

Maintenance of Confidentiality by the Center and Arbitrator

Article 76

(a) Unless the parties agree otherwise, the Center and the arbitrator shall maintain the confidentiality of the arbitration, the award and, to the extent that they describe information that is not in the public domain, any documentary or other evidence disclosed during the arbitration, except to the extent necessary in connection with a court action relating to the award, or as otherwise required by law.

(b) Notwithstanding paragraph (a), the Center may include information concerning the arbitration in any aggregate statistical data that it publishes concerning its activities, provided that such information does not enable the parties or the particular circumstances of the dispute to be identified.

VIII. MISCELLANEOUS

Exclusion of Liability

Article 77

Except in respect of deliberate wrongdoing, the arbitrator or arbitrators, WIPO and the Center shall not be liable to a party for any act or omission in connection with the arbitration.

Waiver of Defamation

Article 78

The parties and, by acceptance of appointment, the arbitrator agree that any statements or comments, whether written or oral, made or used by them or their representatives in preparation for or in the course of the arbitration shall not be relied upon to found or maintain any action for defamation, libel, slander or any related complaint, and this Article may be pleaded as a bar to any such action.

ANNEX E

WIPO EXPEDITED ARBITRATION RULES

I. GENERAL PROVISIONS

Abbreviated Expressions

Article 1

In these Rules:

Claimant means the party initiating an arbitration;

Respondent means the party against which the arbitration is initiated, as named in the Request for Arbitration;

Tribunal means the sole arbitrator;

WIPO means the World Intellectual Property Organization;

Center means the WIPO Arbitration and Mediation Center, a unit of the International Bureau of WIPO;

Words used in the singular include the plural and vice versa, as the context may require.

Scope of Application of Rules

Article 2

Where an Arbitration Agreement provides for arbitration under the WIPO Expedited Arbitration Rules, these Rules shall be deemed to form part of that Arbitration Agreement and the dispute shall be settled in accordance with these Rules, as in effect on the date of the commencement of the arbitration, unless the parties have agreed otherwise.

Article 3

(b) The law applicable to the arbitration shall be determined in accordance with Article 53(b).

Notices, Periods of Time

Article 4

(e) For the purpose of calculating a period of time under these Rules, such period shall begin to run on the day following the day when a notice or other communication is received. If the last day of such period is an official holiday or a non-business day at the residence or place of business of the addressee, the period is extended until the first business day that follows. Official holidays or non-business days occurring during the running of the period of time are included in calculating the period.

(f) The parties may agree to reduce or extend the periods of time referred to in Articles 11, 14(b), 37(a), 47(b) and 49(a).

(g) The Center may, at the request of a party or on its own motion, extend the periods of time referred to in Articles 11, 14(b), 37(a), 47(b), 49(a), 60(d), 61(e) and 63(e).

(h) The Center may, in consultation with the parties, reduce the period of time referred to in

Article 11.

Documents Required to Be Submitted to the Center

Article 5

(a) Until the notification by the Center of the establishment of the Tribunal, any written

statement, notice or other communication required or allowed under Articles 6 to 30 shall be submitted by a party to the Center and a copy thereof shall at the same time be transmitted by that party to the other party.

(b) Any written statement, notice or other communication so sent to the Center shall be sent in a number of copies equal to the number required to provide one copy for the Tribunal and one for the Center.

(c) After the notification by the Center of the establishment of the Tribunal, any written statements, notices or other communications shall be submitted by a party directly to the Tribunal and a copy thereof shall at the same time be supplied by that party to the other party.

(d) The Tribunal shall send to the Center a copy of each order or other decision that it makes.

II. COMMENCEMENT OF THE ARBITRATION

Request for Arbitration

Article 6

The Claimant shall transmit the Request for Arbitration to the Center and to the Respondent.

Article 7

The date of commencement of the arbitration shall be the date on which the Request for Arbitration, together with the Statement of Claim as required by Article 10, is received by the Center.

Article 8

The Center shall inform the Claimant and the Respondent of the receipt by it of the Request for Arbitration and Statement of Claim and of the date of the commencement of the arbitration.

Article 9

The Request for Arbitration shall contain:

(i) a demand that the dispute be referred to arbitration under the WIPO Expedited Arbitration Rules;

(ii) the names, addresses and telephone, telex, telefax or other communication references of the parties and of the representative of the Claimant;

(iii) a copy of the Arbitration Agreement and, if applicable, any separate choice-of-law clause;

(iv) any observations that the Claimant considers useful in connection with, Articles 14 and 15.

Article 10

The Request for Arbitration shall be accompanied by the Statement of Claim in conformity with Article 35(a) and (b).

Answer to the Request and Statement of Defense

Article 11

Within 20 days from the date on which the Respondent receives the Request for Arbitration and Statement of Claim from the Claimant, the Respondent shall address to the Center and to the Claimant an Answer to the Request which shall contain comments on any of the items in the Request for Arbitration.

Article 12

The Answer to the Request shall be accompanied by the Statement of Defense in conformity with Article 36(a) and (b).

Representation

Article 13

(b) Each party shall ensure that its representatives have sufficient time available to enable the arbitration to proceed expeditiously.

III. COMPOSITION AND ESTABLISHMENT OF THE TRIBUNAL

Number of Arbitrators

Article 14

(a) The Tribunal shall consist of a sole arbitrator, who shall be appointed by the parties.

(b) If the appointment of the sole arbitrator is not made within 15 days after the commencement of the arbitration, the sole arbitrator shall be appointed by the Center.

Nationality of Arbitrator

Article 15

(a) An agreement of the parties concerning the nationality of the arbitrator shall be respected.

(b) If the parties have not agreed on the nationality of the sole arbitrator, such

arbitrator shall, in the absence of special circumstances, such as the need to appoint a person having particular qualifications, be a national of a country other than the countries of the parties.

Communication Between Parties and Candidates for Appointment as Arbitrator

Article 16

No party or anyone acting on its behalf shall have any ex parte communication with any candidate for appointment as arbitrator except to discuss the candidate's qualifications, availability or independence in relation to the parties.

Impartiality and Independence

Article 17

(a) The arbitrator shall be impartial and independent.

(b) The prospective arbitrator shall, before accepting appointment, disclose to the parties and the Center any circumstances that might give rise to justifiable doubt as to the sole arbitrator's impartiality or independence, or confirm in writing that no such circumstances exist.

justifiable doubt as to the arbitrator's impartiality or independence, the sole arbitrator shall promptly disclose such circumstances to the parties and the Center.

Availability, Acceptance and Notification

Article 18

(a) The arbitrator shall, by accepting appointment, be deemed to have undertaken to make available sufficient time to enable the arbitration to be conducted and completed expeditiously.

(b) The prospective arbitrator shall accept appointment in writing and shall communicate

such acceptance to the Center.

Challenge of Sole Arbitrator

Article 19

(a) The arbitrator may be challenged by a party if circumstances exist that give rise to

justifiable doubt as to the sole arbitrator's impartiality or independence.

(b) Notwithstanding Article 14, a party may challenge the appointed sole arbitrator only for reasons of which it becomes aware after the appointment has been made.

Article 20

A party challenging the arbitrator shall send notice to the Center, the Tribunal and the other party, stating the reasons for the challenge, within seven days after being notified of the sole arbitrator's appointment or after becoming aware of the circumstances that it considers give rise to justifiable doubt as to the sole arbitrator's impartiality or independence.

Article 21

When the sole arbitrator has been challenged by a party, the other party shall have the right to respond to the challenge and shall, if it exercises this right, send, within seven days after receipt of the notice referred to in Article 20, a copy of its response to the Center, the party making the challenge and the sole arbitrator.

Article 22

The Tribunal may, in its discretion, suspend or continue the arbitral proceedings during the pendency of the challenge.

Article 23

The other party may agree to the challenge or the sole arbitrator may voluntarily withdraw. In either case, the sole arbitrator shall be replaced without any implication that the grounds for the challenge are valid.

Article 24

If the other party does not agree to the challenge and the sole arbitrator does not withdraw, the decision on the challenge shall be made by the Center in accordance with its internal procedures. Such a decision is of an administrative nature and shall be final. The Center shall not be required to state reasons for its decision.

Release from Appointment

Article 25

At the sole arbitrator's own request, the sole arbitrator may be released from appointment as arbitrator either with the consent of the parties or by the Center.

Article 26

Irrespective of any request by the sole arbitrator, the parties may jointly release the sole arbitrator from appointment as arbitrator. The parties shall promptly notify the Center of such release.

Article 27

At the request of a party or on its own motion, the Center may release the sole arbitrator from appointment as arbitrator if the sole arbitrator has become de jure or de facto unable to fulfill, or fails to fulfill, the duties of arbitrator. In such a case, the parties shall be offered the opportunity to express their views thereon and the provisions of Articles 21 to 24 shall apply mutatis mutandis.

Replacement of Sole Arbitrator

Article 28

(a) Whenever necessary, a substitute arbitrator shall be appointed pursuant to the procedure

provided for in Article 14 that was applicable to the appointment of the arbitrator being replaced.

(b) Pending the replacement, the arbitral proceedings shall be suspended, unless otherwise

agreed by the parties.

Article 29

Pleas as to the Jurisdiction of the Tribunal

Article 30

(a) The Tribunal shall have the power to hear and determine objections to its own jurisdiction,

including any objections with respect to form, existence, validity or scope of the Arbitration Agreement examined pursuant to Article 53(b).

(b) The Tribunal shall have the power to determine the existence or validity of any contract of

which the Arbitration Agreement forms part or to which it relates.

(d) The Tribunal may rule on a plea referred to in paragraph (c) as a preliminary question or,

in its sole discretion, decide on such a plea in the final award.

(e) A plea that the Tribunal lacks jurisdiction shall not preclude the Center from administering

the arbitration.

IV. CONDUCT OF THE ARBITRATION

Transmission of the File to the Tribunal

Article 31

The Center shall transmit the file to the sole arbitrator as soon as the sole arbitrator is appointed.

General Powers of the Tribunal

Article 32

(a) Subject to Article 3, the Tribunal may conduct the arbitration in such manner as it

considers appropriate.

(b) In all cases, the Tribunal shall ensure that the parties are treated with equality and that

each party is given a fair opportunity to present its case.

may, at the request of a party or on its own motion, extend in exceptional cases a period of time fixed by these Rules, by itself or agreed to by the parties.

Place of Arbitration

Article 33

(b) The Tribunal may, after consultation with the parties, conduct hearings at any place that it considers appropriate. It may deliberate wherever it deems appropriate.

Language of Arbitration

Article 34

(b) The Tribunal may order that any documents submitted in languages other than the language of arbitration be accompanied by a translation in whole or in part into the language of arbitration.

Statement of Claim

Article 35

(a) The Statement of Claim shall contain a comprehensive statement of the facts and legal arguments supporting the claim, including a statement of the relief sought.

(b) The Statement of Claim shall, to as large an extent as possible, be accompanied by the documentary evidence upon which the Claimant relies, together with a schedule of such documents. Where the documentary evidence is especially voluminous, the Claimant may add a reference to further documents it is prepared to submit.

Statement of Defense

Article 36

(a) The Statement of Defense shall reply to the particulars of the Statement of Claim required pursuant to Article 35(a). The Statement of Defense shall be accompanied by the corresponding documentary evidence described in Article 35(b).

(b) Any counterclaim or setoff by the Respondent shall be made or asserted in the Statement of Defense or, in exceptional circumstances, at a later stage in the arbitral proceedings if so determined by the Tribunal. Any such counterclaim or setoff shall contain the same particulars as those specified in Article 35(a) and (b).

Further Written Statements

Article 37

(a) In the event that a counterclaim or setoff has been made or asserted, the Claimant shall reply to the particulars thereof within 20 days from the date on which the Claimant receives such counter-claim or set-off. Article 36(a) shall apply mutatis mutandis to such reply.

(b) The Tribunal may, in its discretion, allow or require further written statements.

Amendments to Claims or Defense

Article 38

Communication Between Parties and Tribunal

Article 39

Except as otherwise provided in these Rules or permitted by the Tribunal, no party or anyone acting on its behalf may have any ex parte communication with the Tribunal with respect to any matter of substance relating to the arbitration, it being understood that nothing in this paragraph shall prohibit ex parte communications that concern matters of a purely organizational nature, such as the physical facilities, place, date or time of the hearings.

Interim Measures of Protection; Security for Claims and Costs

Article 40

(b) At the request of a party, the Tribunal may, if it considers it to be required by exceptional

circumstances, order the other party to provide security, in a form to be determined by the Tribunal, for the claim or counterclaim, as well as for costs referred to in Article 65.

Preparatory Conference

Article 41

Evidence

Article 42

(a) The Tribunal shall determine the admissibility, relevance, materiality and weight of evidence.

Experiments

Article 43

(b) For the purposes of this Article, "experiments" shall include tests or other processes of verification.

Site Visits

Article 44

Agreed Primers and Models

Article 45

The Tribunal may, where the parties so agree, determine that they shall jointly provide:

(i) a technical primer setting out the background of the scientific, technical or other specialized information necessary to understand fully the matters in issue; and

(ii) models, drawings or other materials that the Tribunal or the parties require for reference purposes at any hearing.

Disclosure of Trade Secrets and Other Confidential Information

Article 46

(a) For the purposes of this Article, confidential information shall mean any information, regardless of the medium in which it is expressed, which is

(i) in the possession of a party,

(ii) not accessible to the public,

(iii) of commercial, financial or industrial significance, and

(iv) treated as confidential by the party possessing it.

(e) The Tribunal may also, at the request of a party or on its own motion, appoint the confidentiality advisor as an expert in accordance with Article 49 in order to report to it, on the basis of the confidential information, on specific issues designated by the Tribunal without disclosing the confidential information either to the party from whom the confidential information does not originate or to the Tribunal.

Hearings

Article 47

(b) If a hearing is held, it shall be convened within 30 days after the receipt by the Claimant of the Answer to the Request and the Statement of Defense. The Tribunal shall give the parties adequate advance notice of the date, time and place of the hearing. Except in exceptional circumstances, hearings may not exceed three days. Each party shall be expected to bring to the hearing such persons as necessary to adequately inform the Tribunal of the dispute.

(d) The Tribunal shall determine whether and, if so, in what form a record shall be made of any hearing.

(e) Within such short period of time after the hearing as is agreed by the parties or, in the absence of such agreement, determined by the Tribunal, each party may communicate to the Tribunal and to the other party a post-hearing brief.

Witnesses

Article 48

(b) The Tribunal has discretion, on the grounds of redundance and irrelevance, to limit or refuse the appearance of any witness, whether witness of fact or expert witness.

(c) Any witness who gives oral evidence may be questioned, under the control of the Tribunal, by each of the parties. The Tribunal may put questions at any stage of the examination of the witnesses.

(e) A party shall be responsible for the practical arrangements, cost and availability of any witness it calls.

(f) The Tribunal shall determine whether any witness shall retire during any part of the proceedings, particularly during the testimony of other witnesses.

Experts Appointed by the Tribunal

Article 49

(b) Subject to Article 46, upon receipt of the expert's report, the Tribunal shall communicate a copy of the report to the parties, which shall be given the opportunity to express, in writing, their opinion on the report. A party may, subject to Article 46, examine any document on which the expert has relied in such a report.

Default

Article 50

(a) If the Claimant, without showing good cause, fails to submit its Statement of Claim in accordance with Articles 10 and 35, the Center shall not be required to take any action under Article 8.

(b) If the Respondent, without showing good cause, fails to submit its Statement of Defense in accordance with Articles 11, 12 and 36, the Tribunal may nevertheless proceed with the arbitration and make the award.

Closure of Proceedings

Article 51

(a) The Tribunal shall declare the proceedings closed when it is satisfied that the parties have had adequate opportunity to present submissions and evidence.

Waiver

Article 52

V. AWARDS AND OTHER DECISIONS

Laws Applicable to the Substance of the Dispute, the Arbitration and the Arbitration Agreement

Article 53

Currency and Interest

Article 54

(a) Monetary amounts in the award may be expressed in any currency.

Form and Notification of Awards

Article 55

(a) The Tribunal may make preliminary, interim, interlocutory, partial or final awards.

(b) The award shall be in writing and shall state the date on which it was made, as well as the

place of arbitration in accordance with Article 33(a).

(d) The award shall be signed by the sole arbitrator. Where the sole arbitrator fails to sign, the award shall state the reason for the absence of the signature.

(e) The Tribunal may consult the Center with regard to matters of form, particularly to ensure the enforceability of the award.

(f) The award shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the sole arbitrator and the Center. The Center shall formally communicate an original of the award to each party and the sole arbitrator.

Time Period for Delivery of the Final Award

Article 56

(a) The arbitration should, wherever reasonably possible, be heard and the proceedings declared closed within not more than three months after either the delivery of the Statement of Defense or the establishment of the Tribunal, whichever event occurs later. The final award should, wherever reasonably possible, be made within one month thereafter.

(b) If the proceedings are not declared closed within the period of time specified in paragraph (a), the Tribunal shall send the Center a status report on the arbitration, with a copy to each party. It shall send a further status report to the Center, and a copy to each party, at the end of each ensuing period of one month during which the proceedings have not been declared closed.

(c) If the final award is not made within one month after the closure of the proceedings, the Tribunal shall send the Center a written explanation for the delay, with a copy to each party. It shall send a further explanation, and a copy to each party, at the end of each ensuing period of one month until the final award is made.

Effect of Award

Article 57

(b) The award shall be effective and binding on the parties as from the date it is communicated by the Center pursuant to Article 55(f), second sentence.

Settlement or Other Grounds for Termination

Article 58

(a) The Tribunal may suggest that the parties explore settlement at such times as the Tribunal may deem appropriate.

(d) The consent award or the order for termination of the arbitration shall be signed by the sole arbitrator in accordance with Article 55(d) and shall be communicated by the Tribunal to the Center in a number of originals sufficient to provide one for each party, the sole arbitrator and the Center. The Center shall formally communicate an original of the consent award or the order for termination to each party and the sole arbitrator.

Correction of the Award and Additional Award

Article 59

(b) The Tribunal may correct any error of the type referred to in paragraph (a) on its own initiative within 30 days after the date of the award.

VI. FEES AND COSTS

Fees of the Center

Article 60

(a) The Request for Arbitration shall be subject to the payment to the Center of a non-refundable registration fee. The amount of the registration fee shall be fixed in the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.

(b) Any counterclaim by a Respondent shall be subject to the payment to the Center of a non-refundable registration fee. The amount of the registration fee shall be fixed in the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.

(c) No action shall be taken by the Center on a Request for Arbitration or counterclaim until the registration fee has been paid.

(d) If a Claimant or Respondent fails, within 15 days after a second reminder in writing from the Center, to pay the registration fee, it shall be deemed to have withdrawn its Request for Arbitration or counterclaim, as the case may be.

Article 61

(a) An administration fee shall be payable by the Claimant to the Center within 30 days after the Claimant has received notification from the Center of the amount to be paid.

(b) In the case of a counterclaim, an administration fee shall also be payable by the Respondent to the Center within 30 days after the date the Respondent has received notification from the Center of the amount to be paid.

(c) The amount of the administration fee shall be calculated in accordance with the Schedule of Fees applicable on the date of commencement of the arbitration.

(f) The Tribunal shall, in a timely manner, inform the Center of the amount of the claim and any counterclaim, as well as any increase thereof.

Fees of the Sole Arbitrator

Article 62

The amount and currency of the fees of the sole arbitrator and the modalities and timing of their payment shall be fixed in accordance with the Schedule of Fees applicable on the date on which the Request for Arbitration is received by the Center.

Deposits

Article 63

(a) Upon receipt of notification from the Center of the establishment of the Tribunal, the Claimant and the Respondent shall each deposit an equal amount as an advance for the costs of arbitration referred to in Article 64. The amount of the deposit shall be determined by the Center.

(b) In the course of the arbitration, the Center may require that the parties make supplementary deposits.

(c) If the required deposits are not paid in full within 20 days after receipt of the corresponding notification, the Center shall so inform the parties in order that one or other of them may make the required payment.

(e) If a party fails, within 15 days after a second reminder in writing from the Center, to pay the required deposit, it shall be deemed to have withdrawn the relevant claim or counterclaim.

Award of Costs of Arbitration

Article 64

(a) In its award, the Tribunal shall fix the costs of arbitration, which shall consist of:

(i) the sole arbitrators fees,

(ii) the properly incurred travel, communication and other expenses of the sole arbitrator,

(iii) the costs of expert advice and such other assistance required by the Tribunal pursuant to these Rules, and

(iv) such other expenses as are necessary for the conduct of the arbitration proceedings, such as the cost of meeting and hearing facilities.

(b) The aforementioned costs shall, as far as possible, be debited from the deposits required under Article 63.

Award of Costs Incurred by a Party

Article 65

VII. CONFIDENTIALITY

Confidentiality of the Existence of the Arbitration

Article 66

(i) by disclosing no more than what is legally required, and

Confidentiality of Disclosures Made During the Arbitration

Article 67

(a) In addition to any specific measures that may be available under Article 46, any documentary or other evidence given by a party or a witness in the arbitration shall be treated as confidential and, to the extent that such evidence describes information that is not in the public domain, shall not be used or disclosed to any third party by a party whose access to that information arises exclusively as a result of its participation in the arbitration for any purpose without the consent of the parties or order of a court having jurisdiction.

(b) For the purposes of this Article, a witness called by a party shall not be considered to be a

Confidentiality of the Award

Article 68

The award shall be treated as confidential by the parties and may only be disclosed to a third party if and to the extent that

(i) the parties consent, or

(ii) it falls into the public domain as a result of an action before a national court or other competent authority, or

(iii) it must be disclosed in order to comply with a legal requirement imposed on a party or in order to establish or protect a party's legal rights against a third party.

Maintenance of Confidentiality by the Center and Arbitrator

Article 69

VIII. MISCELLANEOUS

Exclusion of Liability

Article 70

Except in respect of deliberate wrongdoing, the sole arbitrator, WIPO and the Center shall not be liable to a party for any act or omission in connection with the arbitration.

Waiver of Defamation

Article 71

ANNEX F

WIPO ARBITRATION AND MEDIATON CENTER

SCHEDULE OF FEES

ANNEX G

EXAMPLES OF ASP SUPPLY CHAIN DISPUTES

	Application Service Provider
CUSTOMER	Dispute arising out of perceived versus actual service level agreement terms customer does not fully understand the service level agreement and expects more than what it contracted for Dispute over pricing model subscription versus transaction-based Dispute concerning limitations of software or customization of software Dispute over latency problems, e.g., resulting from application performance or network problems Dispute resulting from problems caused by changes from one version of an application to the next Dispute over modifications requested by the ASP or customer, e.g., as a result of changes in operational conditions of one or both of the parties, thereby requiring a renegotiation of certain aspects of the existing contractual relationship Dispute over data ownership, e.g., conflict over the centralized aggregated data at an ASP site for analysis regarding customer behavior (i.e. purchasing activities, vendors used, etc); customer claims Dispute resulting from breach of data security Dispute arising out of change in personnel, e.g., change in end-users CIO who then wishes to re-negotiate the contract terms or sever the relationship completely Dispute resulting from customers refusal to modify SLAs Dispute arising out of customer allegation that support response-time is not being met Dispute regarding accuracy of usage data, billing, payment Customer allegation that support is inappropriate or inadequate to address the type of problem being experienced or its frequency Customer allegation that the actual solution is not what it understood it had contracted for Disputes arising over application administration, where the customer expects more control, which the ASP refuses to grant due to configuration and security issues Disputes over misrepresentation of ownership of services (e.g., how much the company says it provides versus what it subcontracts) Dispute over time to implementation Dispute over move to new ASP, e.g., if a customer does not like the service provided by its ASP, what time/plan is in place to allow for the movement of data to another ASP Dispute over ownership of software, i.e., who owns it? Customer, ASP, ISV?
ISV/VAR	Dispute resulting from inadequate or improper auditing, accounting and payment of licensing fees Dispute resulting from ISV allegation that the ASP does not have sufficient licenses to cover the number of users coming in to the server farms resulting in lost revenue to the ISV Dispute resulting from ISVs allegation that an ASP is recycling customer license keys as a result of customer turnover Dispute resulting from ASP allegation that the ISV has not fulfilled the sales or marketing commitments that were made when the two partnered up often tied in with licensing fees Dispute resulting from ISV allegation that its intellectual property rights are being infringed by the ASP or its customer Dispute resulting from ISV allegation that the ASP has not complied with installation protocols as to use and or documentation thereof Dispute resulting from ASP allegation that the ISV is not meeting support commitments or response times Dispute resulting from ASP allegation that the ISV is not meeting its technical commitments as to software applicability Dispute resulting from access rights to the licensed applications and data (Example: Company A is an ISV, which is experimenting with an ASP deployment of its legacy client/server application. It is working with a systems integrator. The ISV requires greater administrative access to its application than the ASP is willing to provide. The ISV is concerned that the live data that it has had its customers enter will be held hostage in a dispute with the ASP as the ISV contemplates re-locating.) Sales channel conflicts between ASP-oriented "software rental" sales and an ISVs traditional software sales channel and licensing model Dispute resulting from ISV allegation that ASP violated its non-disclosure commitments Disputes that might arise when an ISV discontinues a particular application or sells the application to another ISV. For instance, what obligations does an ISV have to continue to support the application, especially as compared to the ASPs obligations to support the application to its customers/end users Disputes over modifications of software. For instance, how many versions or modifications of the same application will an ISV agree to support Disputes over how ISVs and ASPs define the market sector that the ASP will pursue. Disputes over branding. An ISV will likely want to make sure that its trade name is protected while the ASP may believe that functionality should trump branding issues. Disputes over customers termination of services. Who should bear the burden and risk of customers terminating services. For instance, an ISV may invest a significant amount of money up front to create an application for a particular customer of the ASP. What result should occur if that customer terminates service before the ASPs contract with that customer naturally terminates?
AIP	Dispute resulting from ASP allegation that the AIP is not meeting the application implementation schedule promised to the customer Dispute arising out of data access rights, e.g., in some hosted applications there will be integration requirements to other services and applications. The lines on what data can be accessed must clearly be drawn or disputes will arise over privacy and security.
IUP Aggregator	Disputes arising from ASPs inability to deliver on the ASPs downstream business growth objectives
NSP	Dispute arising out of ASP allegation that the NSP is not meeting its bandwidth and connectivity commitments; the NSP counters by claiming that the problem lies with the application or data center, not the network

ANNEX H

OTHER ADR PROCESSES

Summarized below are several ADR techniques that are increasingly being used in the United States of America and the United Kingdom, but that have yet to gain widespread acceptance elsewhere in the world.

Settlement Counsel

This is a relatively new ADR technique where the disputing parties retain counsel who are given the specific mandate of settling the dispute. The settlement counsel normally are not permitted to participate in any subsequent proceedings, in any capacity, if the attempts at settlement fail.

Mini-trial

The "mini-trial" is a private, confidential, voluntary and non-binding procedure (sometimes referred to as "executive tribunal") that takes the form of a mock trial in which the parties make submissions to a panel comprised of senior executives of the disputing companies and a third-party neutral(Footnote 1). Its purpose is to inform a companys chief executive decision-makers of the issues involved in the dispute and to provide them with some forewarning as to the possible outcome of a real trial.

A mini-trial is usually a more formal structured proceeding than mediation in which the roles for the parties business executives and counsel are more precisely defined. Even so, the parties have considerable flexibility in fashioning the procedures.

Mini-trial procedures usually provide for some limited discovery and information exchange (e.g., document production, depositions, interrogatories) between the parties prior to their meeting. The overall objective is to elicit enough information, within a short period of time, to define the issues and to enable the parties to learn the significant strengths and weaknesses of their case.

The mini-trial hearing consists of more elaborate presentations by counsel than in the typical mediation. It is also possible to provide for the testimony of witnesses, especially experts. The presentations are usually followed by rebuttals and questions by the opposing sides. The neutral does not rule on evidence or objections to arguments.

After the submissions, which are typically made within predetermined time periods, the executives enter into a facilitated negotiation procedure with the assistance of the neutral in an effort to reach an agreement and take advantage of the issues that have been elucidated during the mini-trial, thereby enabling them to exercise their business judgment in the ensuing settlement negotiations on a more informed basis. As the participating executives normally will have the authority to settle the case on behalf of their respective companies, the chances of a negotiated settlement are relatively high.

The neutral does not provide a decision or evaluation unless specifically requested to do so by the parties. If the parties are still at an impasse, if asked by the parties, the neutral can render an advisory opinion as to the outcome had the procedure been a real trial. Any such decision or evaluation, in any event, is non-binding.

The main disadvantages of the mini-trial are that it typically requires a significant commitment of time by senior company executives and considerable planning and co-ordination. It also takes longer, is more formalistic and more costly than other ADR processes. There is also a risk for the parties involved in the procedure that may reveal some aspect of their trial strategy.

Typically, the mini-trial procedure is invoked after a dispute has arisen and the parties are faced with the prospect of a long and costly dispute resolution process. The procedure can be used in both domestic and international disputes, whether or not litigation or arbitration has been commenced and in two-party and multi-party disputes. It is particularly appropriate in substantial business disputes covering mixed issues of fact and law or involving technical issues. However, care should be taken to ensure that the amount in controversy justifies the preparation and running costs.

Early Neutral Evaluation

Early neutral evaluation involves the referral of a case to a third-party for non-binding evaluation, in which the evaluator applies all of the principles that would be used in the event of formal adjudication. Like mediation or the mini-trial, it is voluntary, non-binding and confidential.

The early neutral evaluator assesses the strengths and weaknesses of the parties' respective positions and considers how best to conduct the litigation rapidly and economically. This is done on the basis of the pleadings that have already been filed by the parties in the court proceedings. At a subsequently convened evaluation session, presentations may be made by the parties or their counsel. This is followed by an evaluation by the evaluator, who will provide an objective assessment of the relative strengths and weaknesses of the case and will express his or her reasoning for the views expressed. The evaluator helps the parties to devise plans for conducting discovery, sharing material and expediting procedures. In some instances, if requested by the parties, the evaluator can also serve as a mediator and may provide advice on options the parties might consider to resolve their dispute more effectively and expeditiously.

The evaluation session and its related material do not become part of the trial record and are privileged. No communication made in the evaluation may be disclosed or used in any pending or subsequent proceedings.

Neutral Fact-Finding Expert

Where a case involves technical, scientific, accounting, economic or any other specialized issues, the appointment of a neutral fact-finding expert can help considerably in facilitating an early resolution. Not being partisan, such an expert can make a neutral evaluation of the facts, which can be of assistance to a court in adversarial proceedings and can help the parties by narrowing the issues and promoting settlement.

The neutral fact-finding procedure is non-binding. The parties commonly agree that the experts opinion will be admissible in any court proceeding between the parties, but that it is not conclusive. If this is agreed, it allows each party to adduce any other expert evidence to try to controvert the neutral experts views. This gives the neutral experts opinion a persuasive quality without making it decisive. It is this factor which keeps it a non-adjudicatory form of ADR. The information provided by the neutral expert will quite commonly cause either or both of the parties to reassess and perhaps modify their estimate of their probability of success, with consequent impact on settlement attitudes. If the parties agree, the neutral can also act as a mediator.

Ombudsperson

A particular kind of fact finder used by many corporations, educational institutions, government agencies, trade groups and consumer agencies to investigate and assist in resolving grievances and complaints. Generally, ombudspersons make non-binding advisory reports and recommendations to the responsible manager about how to resolve a dispute, but can also issue decisions that are binding.

Dispute Review Board

A private, voluntary and confidential procedure commonly used in the context of an ongoing long-term relationship, which consists of an informed standing group of experts who can quickly deal with disputes as they arise. This is commonly used in the construction industry and in high-value outsourcing contracts. Determinations may be binding or advisory.

Footnote:
1. A variant of the mini-trial is a procedure known as "senior executive appraisal". This procedure is similar to the mini-trial but is less adversarial. Another variant is the "Summary Jury Trial", where a private "jury pool" is assembled to provide a "moot jury verdict".