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Chapter

Cover A Practical Approach to Alternative Dispute Resolution

17. Reaching a Settlement  

This chapter focuses on key aspects of the final stage of the negotiation or mediation process: reaching a settlement. An agreement reached through mediation or negotiation is essentially a contract. As such, contractual principles will apply, and oral or email exchanges may be binding. To avoid problems, it is important to be clear about process. It is also necessary to check the coverage and detail of a potential settlement fully. A potential agreement may be undermined by a failure to agree detail as the settlement process goes forward, or due to tactics in the final stages. Ultimately, it is very important to finalize the terms of an agreement at the end of the settlement process, perhaps building in terms to assist enforcement or implementation.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

23. Recording Settlement  

This chapter explores the process of recording a settlement, which is the final part of the alternative dispute resolution (ADR) process. It is essential that all the issues between the parties are covered in a settlement agreement. If particular issues are deliberately left out of the agreement, or are left for further agreement, this should be made clear. The normal rules of contract law must also be adhered to, or the settlement will not be binding. While oral agreements are usually binding, the risk of misunderstandings means that it is invariably best practice to record the agreement in writing. The chapter then looks at the different methods of recording settlement agreements, including exchange of letters, contract or deed, interim order, consent order, and Tomlin order. Ultimately, when drawing up the agreement, it is important not to overlook how any existing proceedings are to be dealt with and on how the costs are to be paid.

Chapter

Cover A Practical Approach to Alternative Dispute Resolution

19. International Mediation  

This chapter evaluates international mediation. Mediation is particularly effective as an alternative dispute resolution (ADR) process for resolving international disputes because it enables linguistic and cultural differences to be managed and respected to a greater extent than is possible in court proceedings. Moreover, it avoids complex arguments about which court has jurisdiction to determine the dispute and which system of law applies to the dispute. The chapter then looks at the EU Directive on mediation in civil and commercial matters, which sets minimum standards for mediation in EU countries. The United Kingdom has implemented the Directive by adding to the suspension of the operation of the limitation period while the parties are attempting mediation in a cross-border dispute, and providing for mediation settlement agreements in such disputes to be made orders of the court for ease of enforcement by enabling parties to apply for a Mediation Settlement Enforcement Order (MSEO).

Chapter

Cover Jones & Sufrin's EU Competition Law

12. Licensing Agreements and Other Agreements Involving Intellectual Property Rights  

Alison Jones, Brenda Sufrin, and Niamh Dunne

This chapter examines some of the different types of intellectual property rights (IPRs) before outlining the relationship between intellectual property and both EU competition law and the EU free movement rules. It focuses, however, on IP licensing agreements and their treatment under Article 101. The chapter traces the development of EU competition policy to IP licensing agreements and examine the current Technology Transfer Block Exemption and the Guidelines in detail. It also examines patent settlement agreements (including pay for delay agreements), patent pools, trademark licences, trademark delimitation agreements, and copyright (other than software) licences not covered by the TTBER and Guidelines.

Chapter

Cover Legal Systems & Skills

12. Negotiation and mediation  

Scott Slorach, Judith Embley, Peter Goodchild, and Catherine Shephard

This chapter provides guidance as to how to conduct a negotiation and a mediation, and explains the difference between the two. It explains how, why, and when a law student might require these skills, and how to further develop the skills for professional practice. Advice is given about how to prepare a negotiation plan.

Chapter

Cover Competition Law

19. The relationship between intellectual property rights and competition law  

This chapter considers the relationship between intellectual property rights and competition law. After a brief introduction, it deals in general terms with the application of Article 101 to licences of intellectual property rights. The chapter proceeds to discuss the provisions of Regulation 316/2014, the block exemption for technology transfer agreements. It also considers the application of Article 101 to various other agreements concerning intellectual property rights such as technology pools and settlements of litigation. This is followed by a section on the application of Article 102 to the way in which dominant undertakings exercise their intellectual property rights, including an examination of the controversial subject of refusals to license intellectual property rights which are sometimes found to be abusive. The chapter concludes with a look at the position in UK competition law.

Chapter

Cover Competition Law

10. Competition Act 1998 and the cartel offence: public enforcement and procedure  

This chapter describes the system of public enforcement under the Competition Act 1998. This chapter begins with a consideration of the way in which inquiries and investigations are carried out under the Competition Act. It briefly considers the position of complainants to the CMA, followed by a discussion of the extent to which it may be possible to receive guidance from the CMA on the application of the Act. The chapter then describes the powers of the CMA to enforce the Competition Act, the criminal law cartel offence and the provisions on company director disqualification. It concludes with a discussion of concurrency, appeals under the Competition Act and the Government’s review of the operation of the Competition Act between 2014 and 2019.