Arbitrability of Intellectual Property Disputes in Kenya

Abstract

Intellectual Property Rights are perceived to have the same status as other personal rights and as such are arbitrable in nature unless statute provides the contrary. The use of arbitration to resolve IP disputes has a number of advantages such as confidentiality and flexibility. These advantages complement the characteristic of IP disputes. The current legislative frameworks regulating IP disputes is well advanced at the international, regional and national level and have significant influence on whether disputes are resolved in an efficient and effective manner. The main challenges facing these mechanisms are political interference, lack of resources and public ignorance. The challenges faced by these mechanisms have negative ripple effects on right holders whose IPR have been infringed upon as the mechanisms lack the capacity to determine matters in a just, expeditious, proportionate and affordable way. To create legislative and institutional mechanism that resolve IP disputes in an efficient and effective way, Kenya should enact legislative frameworks governing the resolution of IP disputes based on policy; reform the current laws to provide for the use of ADR as the first step to resolving IP disputes in Kenya; establish one IP organization within the country which will deal with IPRs other than having multiple institutions; and establish many arbitral administrative bodies that emulate those in the USA.