Ambiguity and Uncertainty Surrounding Public Policy and Confidentiality in the Context of Arbitration Intellectual Property Disputes

Abstract

This thesis offers a thorough examination of the interplay between public policy and the enforcement of arbitral awards, with a special focus on Intellectual Property (IP) rights disputes. It presents the argument that the effectiveness of arbitration largely depends on the ability to enforce its awards, which, if undermined, could weaken confidence in arbitration as an alternative dispute resolution method. Public policy is often cited as a common ground for challenging the enforcement of arbitral awards, with courts interpreting the concept of public policy narrowly. Moving beyond theoretical discussions, this thesis employs indicative statistics and analysis to demonstrate the extent to which public policy is considered an actual barrier to the enforcement of arbitral awards, with particular attention to IP disputes. This indicative statistic covers general arbitration cases with a focus on specific IP disputes. The findings suggest that public policy is interpreted restrictively, with a strong inclination towards enforcing arbitral awards. Furthermore, this thesis highlights a significant challenge related to confidentiality in arbitration, which is particularly pertinent in IP disputes where confidentiality is of paramount importance. This thesis puts forward a 'hybrid balancing approach' that thoughtfully weighs up the need for confidentiality against the need for transparency. This proposed approach is intended to harmonize the varying treatments of confidentiality across jurisdictions, thereby enhancing the predictability and effectiveness of arbitration. This, in turn, could increase the efficiency of arbitration as a favourable alternative method for resolving IP disputes. Ultimately, this thesis not only offers valuable insights into the challenges posed by public policy in the enforcement of arbitral awards but also proposes a strategic solution to address the tension between confidentiality and transparency in arbitration. Its findings and recommendations carry profound implications for policymakers, arbitrators, and legal practitioners in the realm of international arbitration, particularly within the field of intellectual property.

Date of Award	6 Jan 2025
Original language	English
Awarding Institution	The University of Manchester
Supervisor	Jasem Tarawneh (Supervisor), Geraint Howells (Supervisor), David Gadd (Supervisor) & Nicolette Butler (Supervisor)