Knowledge transfer litigation and arbitration in European Union - China relationships
Catherine KESSEDJIAN - Professor
Nicolas BINCTIN - Professor (université de Poitiers)
Edouard TREPPOZ - Professor (université Lyon 3)
Marie GORE - Professor (université Panthéon-Assas Paris II)
Jean-Baptiste RACINE - Professor (université de Nice)
Facing the evolution of international trade and the development of intellectual property trade between companies from different backgrounds, contractual model readjustments and a reordering of dispute resolution systems seem unavoidable. The unsettled legal nature of secret knowledge in China and in the EU can be an obstacle to the formalization of their transfer and therefore precludes the definition of a suitable framework for resolving disputes. The research conducted has mainly been focused on the voluntary transfer of knowledge and has taken into account the damage caused to the secret. To meet the needs of business operators, these operations shall not be limited to "know-how communication contracts. The concepts of intellectual good and "intellectual ownership" theoretically justify other types of contracts, while Chinese and European laws refer to assignment and license of trade secret. When disputes occur, the degree of confidentiality that can be guaranteed by national courts does not always meet parties' expectations. Differences in procedural cultures of the parties as well as the Chinese culture of amicable dispute settlement refrain the parties from relying on national courts. The combinations between mediation and arbitration, by their procedural flexibility, can provide a suitable dispute resolution framework taking into account economic and cultural aspects. Therefore, this research proposes, in particular, M²arb Rules that introduce a mediator-expert with a mission of securing knowledge confidentiality during the dispute resolution process.