As a rule, our clients are not satisfied with being right, they also want to be right. However, law enforcement, especially in the area of innovation protection (see chapter 08 Innovation protection of digital products), has become a luxury good for some (see tweet to NZZ article: twitter.com/juristenfutter/status/963900431935008768). For this reason, the primary aim must be to prevent a legal dispute or to seek possible alternative, i.e. out-of-court, ways of settling disputes (Alternative Dispute Resolution, ADR). The digital world in particular is particularly open to the latter, as legal disputes must be resolved quickly in a fast world.
At any time, but ideally before the outbreak of a dispute, the parties can define and agree escalation procedures. These are also referred to as “legal change management”, since it is often a matter of adapting a project to changed circumstances, even if the parties do not agree on this in advance. To this end, the parties determine what they do when (legal) differences of opinion arise, how they escape them, escalate. The aim is to settle the matter quickly and out of court.
As a rule, an escalation procedure is agreed upon in which one first searches for a solution at the lowest hierarchical level and within a project. If this is not successful, the search moves upwards on the hierarchy and outwards in the organization, i.e. from internal to external dispute resolution.
For example, it can be agreed that a (legal) difference of opinion is first negotiated between the project managers. If no agreement is reached at this stage, the problem is discussed at the management level of the parties involved in the project. If no agreement can be reached at this level either, the matter can still be raised to the last internal level, the board of directors, in the case of joint-stock companies. If there is no agreement here either, the internal escalation has failed and an external escalation is agreed. As in life, it is sometimes good to call in a third party in a dispute between two persons. In the escalation procedure, this is a mediator. A mediator is a person who is independent of the parties. The mediator’s task is not to resolve a conflict, but to help the parties find a solution acceptable to all parties. The latter in particular is a great advantage of mediation, because a solution acceptable to all increases the likelihood that this solution will actually be implemented by the parties. Mediation is thus a help to self-help. But even if the mediation should fail, there is still an (external) stage of escalation, before the (to be avoided; see the foregoing) course to a state court, namely the arbitration court. This is well known from sport and shows the obvious advantages. If, for example, there is a foul in football, the teams do not agree, the matter would have to be referred to a state court. This would mean that the game would have to be interrupted and could only be continued after months. However, the teams or their associations have agreed that in such a case an arbitral tribunal or, in football, a single judge, the referee, will decide. The advantage of a referee is that he decides quickly so that the match can continue immediately. But this is also the disadvantage. Because the referee has no time to judge the matter à fonds. His decision is Fastlaw from a legal point of view. In order to give the referee a better basis for his decision in the future, the video proof will now be introduced. However, this will then lead to delays. Another advantage of an arbitrator or an arbitral tribunal is its professional competence. Arbitration tribunals for business cases are often staffed not only by lawyers, but also, depending on the case to be judged, by experts such as software engineers, civil engineers, architects, physicists or chemists. An arbitral tribunal is explicitly agreed by the parties. It is a private institution. Well-known arbitral tribunals are in particular those of the Chambers of Commerce, in particular the International Chamber of Commerce in Paris (ICC). What most people are probably unaware of is that when they reserved a domain name, they submitted to the domain arbitration proceedings prescribed by the Internet Corporation for Assigned Names and Numbers (ICANN), the organization that coordinates the allocation of Internet addresses. One of the arbitral tribunals provided for this purpose is that of the World Intellectual Property Organization (WIPO) based in Geneva. These proceedings are regularly conducted in English.
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Applicable law and place of jurisdiction
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