지적재산권분쟁에 있어서 중재의 대상적격

Disputes over various intellectual property rights can not be settled efficiently by means of court adjudication. If such disputes are referred to arbitration, it gives the parties an opportunity to select for themselves a tribunal of arbitrators experienced in such matters, and the confidentiality of arbitral proceedings helps to provide a safeguard for trade secrets. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. Therefore, the parties may agree to arbitrate disputes relating to the rights that they freely dispose of. Besides, they may have the freedom to choose arbitration as the form of a dispute resolution. It is necessary to examine the arbitrability of the subject-matter of disputes over intellectual property rights on case-by-case basis, because the types of them are quite diverse. Whether or not a patent, utility model, design or trademark should be granted is plainly a matter for the public authorities of the state concerned, these being monopoly rights that only the state can grant. Any dispute as to their grant or validity is outside the domain of arbitration. However, the owner of a patent or trademark frequently issues licences to one or more corporations or individuals in order to exploit the patent or trademark; and any disputes between the licensor and licensee may be referred to arbitration. Unlike a patent etc., copyrights are intellectual property rights which exist independently of any national registration, and may be freely disposed of by parties. There is generally no doubt that disputes relating to such private rights may be referred to arbitration.