The introduction of mediation mechanisms in Serbian civil law was incited by the accession of the country to the Council of Europe in 2003. The chapter starts by examining the general rules on mediability in Serbian law and applying them to IP-related disputes. As a general rule, mediation may be used as an alternative dispute resolution mechanism: (i) in contentious legal matters in which the parties may freely dispose of their claims; (ii) unless the law stipulates exclusive authority of a court or other relevant entity. This rule sets the objective boundaries of mediation. The subjective boundaries of mediation, related to the criteria that the parties in mediation must meet, are not prescribed in Serbian law. The first criterion is quite extensively defined, given that the parties may freely dispose not only of their property claims but also of non-property claims, as long as this is in accordance with the imperative norms, public order, moral rules and customary rules. The Serbian intellectual property legislation explicitly refers to mediation mechanisms in two cases only. First, the copyright legislation allows for a mediation mechanisms to be employed if a broadcasting organization and a cable operator are unable to reach an agreement on cable retransmission conditions. Second, trademark legislation allows for the parties to trademark opposition proceedings to attempt to resolve the dispute by means of mediation within the time frame of 24 months. Even if an IP dispute is mediable, one should not necessarily conclude that it is always appropriate to resolve it by way of mediation. Accordingly, the chapter examines the advantages and disadvantages of mediation over litigation.

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Mediation Mechanisms in Serbian Intellectual Property Law: A Steady Progression

  • Dušan V. Popović

摘要

The introduction of mediation mechanisms in Serbian civil law was incited by the accession of the country to the Council of Europe in 2003. The chapter starts by examining the general rules on mediability in Serbian law and applying them to IP-related disputes. As a general rule, mediation may be used as an alternative dispute resolution mechanism: (i) in contentious legal matters in which the parties may freely dispose of their claims; (ii) unless the law stipulates exclusive authority of a court or other relevant entity. This rule sets the objective boundaries of mediation. The subjective boundaries of mediation, related to the criteria that the parties in mediation must meet, are not prescribed in Serbian law. The first criterion is quite extensively defined, given that the parties may freely dispose not only of their property claims but also of non-property claims, as long as this is in accordance with the imperative norms, public order, moral rules and customary rules. The Serbian intellectual property legislation explicitly refers to mediation mechanisms in two cases only. First, the copyright legislation allows for a mediation mechanisms to be employed if a broadcasting organization and a cable operator are unable to reach an agreement on cable retransmission conditions. Second, trademark legislation allows for the parties to trademark opposition proceedings to attempt to resolve the dispute by means of mediation within the time frame of 24 months. Even if an IP dispute is mediable, one should not necessarily conclude that it is always appropriate to resolve it by way of mediation. Accordingly, the chapter examines the advantages and disadvantages of mediation over litigation.