The primary difference between arbitration and litigation is that in litigation, court is involved as it is a lawsuit, whereas, in arbitration, a settlement between the parties is done out of court.

1. Arbitration or Litigation: Choosing the Appropriate Course of Action
Intellectual Property Rights (IPRs) have garnered the establishment of an
infrastructure to ensure better enforcement of rights not just at the national but also
at the international level since such assets are portable and accessible beyond
traditional borders. Therefore, contrary to the common misbelief that since these
rights emanate from the exclusive jurisdiction of a state and since they are rooted
in public policy, it is a matter to be addressed forth the national courts, it is instead
a reality to be reckoned with that in today's time most of the jurisdictions recognize
the arbitrability of Intellectual Property (IP) disputes. This recognition is not
absolute and is often accompanied by certain exceptions and limitations like any
other law regulating disputes.
Arbitration over Court Litigation: A Judgment Based on the Scale of
Balance

2. Characteristics to be
Considered
Arbitration Litigation
Jurisdiction Arbitration can address
IP disputes where parties
of two different
nationalities are involved
and governed by different
substantive laws.
Litigation is more
preferable when parties
are of same nationality. If
different nationalities are
involved, it may lead to a
risk of concluding at
conflicting results and
inconsistent judgments.
Subjectivity &
Technical knowledge
IP disputes require
technical expertise, and
therefore, arbitrators
possessing technical
knowledge benefit from
the resolution process of
the dispute since the
parties have the freedom
to choose the arbitrator.
Court proceedings are led
by a judge who may not
always have subject-
matter expertise. Also,
the parties have no
choice to make regarding
who takes over the chair.
Speed & Efficiency Arbitration is considered
for the speedy resolution
Adjournments are
common in litigation, and

3. of disputes. the hierarchy of courts
further complicates the
issue of speedy dispute
resolution.
Provisional Measures It is possible to grant
injunctive relief or
provisional measures to
prevent further breach of
confidentiality or
infringement.
There is a possibility of
getting an order of
injunction against the
further breach of
confidentiality.
Flexibility Arbitration introduces
flexibility in timelines
and procedural
formalities that need to
reflect in the entire
process. It may be
concerning where the
matter shall be heard,
physically, virtually, or
telephonically, how the
documents shall be
submitted in evidence,
etc.
Litigation follows a rigid
format since it is uniform
in the application
regardless of the needs of
each party. It adheres to a
well-defined discovery
and document
submission mode, rigid
deadlines, etc.
Appeals The options to appeal the
matter are limited in
scope.
There is a vast range of
appeal options,
considering the hierarchy
of courts in each
respective jurisdiction.
Confidentiality These proceedings are
confidential, and
therefore, the scope of
the disclosure is minimal
to nil.
The proceedings are
public like any other
proceedings, and
therefore, the influence
of media and disclosure
is outreaching.
Multiplicity of Suits Arbitration can be
considered to streamline
the issue since a single
proceeding under the law
determined by the parties
is administered.
There is a chance of
multiplicity of
proceedings since the
same suit can be brought
up under different laws,
leading to a risk of

4. conflicting results as the
decision in one lawsuit
may not necessarily
concur or be amicable to
the judgment delivered
by another court.
Pondering Further into Arbitrability of IP Disputes
Majority of the United Nation's contracting parties are also signatories to the New
York Convention on the Recognition and Enforcement of Foreign Arbitral Awards.
The New York Convention requires the national courts of the contracting states to
give effect to private contractual agreements and recognize and enforce an
arbitrational award delivered in another contracting state. It, therefore, allows
resolution of international commercial disputes. However, all member states are
free to deduce the subject matters that shall be arbitrable and those that won't be.
Hence, even if a state is signatory to the Convention, it does not automatically
render that IP disputes are within its remit.
It has been recorded that most states consider enforcement of such arbitral awards
that resolve disputes reduced into a written agreement, specifically when they deal
with the parties' rights in a licensing agreement. However, the issues that may
affect the public interest or are contrary to public policy may not be arbitrable, for
instance, compulsory licensing of patents, which may benefit the general public.
Major Challenges in Arbitration
The major difference between arbitration and litigation is that when a matter is
adjudicated by a national court, the award is said to be enforceable and have effect

5. on the parties in the issue, including third parties as well. Therefore, the judgment
deliver is in rem. However, the same cannot be definitely concluded in the instance
of an award by an arbitrator since it will depend on the jurisdictional laws of each
state respectively. Hence, an arbitral award is usually in personam.
Let us understand it better with an example. If a patent owner's invention is
considered invalid by a national court in litigation against some third party, say 'x,'
the patent owner cannot enforce the patented invention to prevent any other party
from using the same. However, in the event of an arbitral award in the same
instance, the proprietor of the patent can only enforce the rights and prevent third
parties other than 'x.' It is the reason why parties often choose to arbitrate since it is
less precarious and better to lose one's rights against one person or entity rather
than to lose them against all, in general. Hence, it is often concluded that the
disputes submitted to the civil courts can be allowed for arbitration except for some
reserved matters, and those in rem are beyond the perimeter of arbitration.
Conclusion
With the support of international arbitration institutions like UNICTRAL, ICC,
WIPO, and the WTO, there has been a soar in the cases concerning IPRs. National
laws must endure and incorporate a liberal approach to accommodate the interest
of all stakeholders to facilitate enforcement of such disputes. The same includes
structuralizing yet liberalizing the manner of appointment of arbitrators, provision
for proper infrastructure, procedure, and conduct of such institutions, and so on, to
ensure that such alternative methods of dispute resolution are not just welcomed
but also encouraged.