A guide to the UPC and the UP - Flipbook - Page 469
The Court’s Competence to Hear Disputes about Terms of Settlements
22-48 It appears that it was originally intended that all disputes relating to the terms of settlement
agreements would be within the competence of the Court, as the earlier drafts of the RoP
required the Court to confirm the terms of all settlements. 61 With this original wording, if there
was any disagreement as to the terms of a settlement, the Court would then have the power to
look at the materials relating to the negotiation of the settlement, so that the agreement could
be enforced.
22-49 However, the amendment to the RoP 62 to make it optional for the Court to confirm the terms of
settlement agreements means that it could be argued that the Court may not have competence
to hear disputes relating to the terms of a settlement agreement if the parties choose not to
have the terms of the agreement confirmed in an order of the Court. The Court, prima facie,
has only limited competence to hear contractual disputes, limited to infringement
counterclaims concerning licences and licences of right. 63 Given that many settlements will
result in a licence being granted, this means the Court will have competence to hear certain
disputes as to the scope of the licence where the patentee subsequently alleges infringement.
However, in all other situations, the Court is unlikely to have the competence to hear disputes
relating to settlements and jurisdiction to hear such a dispute will depend on the terms of the
dispute resolution clause in the settlement agreement. 64
Mediation and Arbitration
Introduction to the Centre
22-50 The establishment of the Centre as part of the Unitary Patent Package will introduce a new
dimension to dispute resolution, as no other court has such a close relationship with a centre
offering both mediation or arbitration as the Court will have to the Centre. The Centre will be
able to deal with all disputes that the Court is competent to hear. 65 The Centre is designed to sit
alongside the Court, with the intention that it will be used both to assist in settlement and as an
alternative to the Court, should the parties wish to settle a dispute by either mediation or
arbitration, without resorting to litigation.
22-51 The Centre will have two seats, one in Lisbon, Portugal, and one in Ljubljana, Slovenia.
The Centre will have facilities at each of the two locations, including meeting rooms that parties
may use for mediation or arbitration. Parties that wish to use the Centre for mediation or
arbitration will be free to do so at any suitable location and will not be restricted to either of the
locations of the Centre. However, the Preparatory Committee has stated that the facilities of the
Centre will be priced so as to encourage parties to make use of them. The Rules of Operation of
the Mediation and Arbitration Centre as adopted by the Administrative Committee on 8 July
2022, express the objective of the Centre as being to promote mediation and arbitration in
cases which fall wholly or in part within the competence of the UPC, and go on to state that
such objective includes in particular:
–
61
62
63
64
65
to make available institutional support for the mediation and arbitration proceedings,
See, for example, the 15th draft RoP dated 31 May 2013 available at http://www.brevet-inventionphilippeschmittleblog.eu/wp-content/uploads/2013/06/V-15-draft-rules-of-procedure.pdf
[Accessed 25 April 2023].
Amendments to rr.11(2) and 365(1) RoP to include the words “if requested by the parties” made in the 16th draft RoP dated
31 January 2016.
art 32(1)(a) and (h) UPCA.
See paragraphs 22-38 to 22-40.
art.35(2) UPCA.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 459
