Singapore ASEAN Mediation Programme: Confidentiality Vs Transparency

Introduction:  An increasing use of technology and the cross-border flow of information across markets has enhanced the importance of IP rights. Customarily, IP disputes have been dealt with using traditional mechanisms which might be considered as a time-consuming process. Thus, a more efficient way of dealing with IP disputes will enhance the accessibility to justice. One example of such an initiative can be Singapore ASEAN Mediation Programme jointly launched by the World Intellectual Property Organization along with the Intellectual Property Office of Singapore. The programme offers funding for IP as well as technology related mediations administered by the WIPO Arbitration and Mediation Center’s office in Singapore. The programme offers a blend of confidentiality through mediation but it is further characterized by a certain level of transparency. AMP, makes it a mandate for the parties to consent to named publicity and provide feedback on the mediation experience. Through the WIPO-ASEAN memorandum of understanding the ASEAN Parties can benefit through the Mediation.

This blog will discuss the key components of AMP and discuss the confidentiality vs transparency debate. Additionally, the blog shall also discuss the positives and limitations of AMP.

Key Components of ASEAN Mediation Programme:

The WIPO & Singapore Government Memorandum of Understanding is specifically tailored to deal with IP disputes that involves at-least one of the ASEAN members. The programme is designed to tailor to the disputes that are already ongoing before courts or arbitral authorities as well as deal mediation. The key components are as follows:

• Funding: The WIPO Center administration fee is waived off and upto SGD 8,000 per case, the amount is split equally among the parties, irrespective of the outcome of the mediation.
• Eligibility: In order to access the benefits of AMP+ one of the parties to the mediation should be a member of ASEAN, they should consent to publicity as well as provide feedback. Additionally, A Singapore professional should be appointed as the mediator.
• Shadow mediators: Unlike the usual process a shadow mediator cannot be considered as independent party to the proceedings. A shadow mediator is appointed by one of the parties instead of a mutual agreement. The major role of the shadow mediator is to ensure the profit of the mediation consultant and answers to that party as well. It is considered as an important cost-effective aspect of a mediation.
• Transparency Conditions: The parties must consent to revealing their names however their settlement terms can be kept confidential. Additionally, they should also provide feedback about the process.

Confidentiality Vs Transparency: Does AMP maintain a balance?

One of the main reasons why confidentiality is considered as an important aspect is because through the mediation the parties can express their concerns directly. One of the major reasons why corporations opt for mediation is because of the aspect of confidentiality. The parties can bring sensitive information into the forefront in a secured environment. It further enables the parties to oversee the aspects such as hampering their commercial interests in cases of publicity. Confidentiality can be considered as:

• Insider-outsider: The information is only restricted to the people who are a party to the dispute.
• Insider-insider: maintaining confidentiality among the parties to the mediation unless the other part consents to the information being revealed to the other party.
• Insider-court: the details of the proceedings cannot be used as precedents in other cases

However, confidentiality in mediation is not always absolute. Insider-Insider confidentiality maybe compromised in certain cases if the mediator thinks it is an important aspect of the settlement or may facilitate the proceedings.

In recent days transparency is also prevalent in mediation proceedings. Even though transparency can be considered as a drawback for majority of the parties, it may also incentivize a lot of companies to enter into mediation. It can also serve as an example for the parties that are interested in mediation and have a similar set of facts. It also ensures that the owner of the IP receives public affirmation of the validity and ownership of the IP rights which acts as a strong deterrent for infringement cases.

Thus, a balanced approach is an essential for a successful IP Mediation. The same has been inculcated in AMP and is one the major positives of the programme. It merges the concepts of confidentiality and transparency, the details of the settlement and nature of the dispute is confidential in nature however the parties should consent to named publicity. Thus, the parties to the mediation are entitled to protecting their trade secrets but can also claim more distinctiveness in cases of infringement.

Advantages:

The system of AMP+ is cost effective in nature considering the funding received by the parties to conduct the mediation proceedings. This acts as a major incentive for countries. Considering the allowance of members of the ASEAN countries the programme facilitates cross-border mediation as well. Further, the programme has been marked by successful settlements. In the case of Chew Optics by Chew Optics (Bishan) & Chew Optics (Kovan) involved claims of trademark infringement, passing off as well as malicious falsehood. The parties had received a settlement previously however, the same failed due to a different understanding of the terms of settlement. Through the AMP+ programme the matter was successfully resolved. Further, the feedback of the various mediations are positive as well. There is also scope for accountability since everything is publicized on the website. This further incentivizes the parties with similar interests.

Limitations:

One of the primary limitations of the programme is the transparency requirement. Even though it doesn’t disclose the settlement terms, subjecting their names to publicity may discourage businesses that place a significant value on privacy as well as the reputation. The facilities are also limited to members of ASEAN countries which restricts the ambit of cross-border dispute resolution. The system also heavily depends on co-operation among the parties. If the parties take an adversarial position or are averse to compromise mediation may fail.

Conclusion:

In view of the increasing complexity and transnational nature of intellectual property disputes, an efficient and low cost means of dispute resolution becomes necessary. The ASEAN Mediation Programme provides a positive move in that direction as a programme is designed to foster the use of mediation as an effective substitute to litigation and arbitration in disputes concerning IP rights and technology. This is achieved through providing financial inducements and a supportive environment to make mediation more accessible to individuals involved in transnational disputes between ASEAN entities.

The distinctive feature of the programme lies in the way in which it attempts to achieve a balance between two principles, which seem to be contradictory at first glance—confidentiality and transparency. Confidentiality is ensured by protecting the details of the settlement whereas, named publicity can create transparency, thus increasing trust in mediation and ensuring more accountability when using this type of dispute resolution procedure. Even though this might not suit all the enterprises the above approach is considered unique because of the way in which it seeks to combine the two contradictory factors.

However, even though AMP is advantageous there are certain constraints associated with this process, including issues pertaining to the region covered, transparency, and cooperation with the concerned political party. However, the fact that this process is being successfully used by many users demonstrates the possibility of developing it into a model for future intellectual property mediation systems.

Author :- Auridraa Chatterjee, in case of any query, contact us at Global Patent Filing or write back us via email at support@globalpatentfiling.com.

References:

1) ‘Singapore: WIPO-ASEAN Mediation Programme (AMP+) Extended for 2025’ (Baker McKenzie InsightPlus) https://insightplus.bakermckenzie.com/bm/intellectual-property/singapore-wipo-asean-mediation-programme-amp-extended-for-2025

2) Yuying Zhang, Increasing Transparency in Intellectual Property Mediation, Kluwer Arbitration Blog (Feb. 9, 2025)

3) Intellectual Property Office of Singapore, Amplifying Consensus – The WIPO-Singapore ASEAN Mediation Programme (May 20, 2024), https://www.ipos.gov.sg/news/news-collection/amplifying-consensus---the-wipo-singapore-asean-mediation-programme.