ASPIC and WIPO Tackle ASP Disputes

A year after agreeing to jointly develop a set of global dispute avoidance and resolution procedures for ASPs, the ASP Industry Consortium and the World Intellectual Property Organization (WIPO) today unveiled a comprehensive set of recommendations and guidelines for enacting the process.

“It was one year ago that we stood here in Geneva and announced our plans to work together on something that would help build consumer confidence in what was then still a largely unknown way of delivering computer applications and services,” noted Traver Gruen-Kennedy, chairman of the ASP Industry Consortium. “A year later, ASPs have become increasingly common throughout the world, which makes our efforts toward avoiding and resolving ASP business disputes that much more important.”

“We are delighted to have completed this successful collaboration with the ASP Industry Consortium. The jointly developed procedures will provide greater certainty about business and legal obligations for the ASP model,” said Francis Gurry, WIPO Assistant Director and Director of the WIPO Arbitration and Mediation Center.

The World Intellectual Property Organization (WIPO), based in Geneva, is a specialized agency of the United Nations that is dedicated to promoting the use and protection of intellectual property works. Its Arbitration and Mediation Center, established in 1994, offers arbitration and mediation services for the resolution of international commercial disputes between private parties, and is widely recognized as a leading dispute resolution provider for Internet and information technology disputes involving intellectual property.

“Cyberspace has no borders, yet the world still operates under a system of cultural and historic borders, meaning a process is required to address business disputes that may occur in a cross-border relationship,” added Gruen-Kennedy, who is also chief strategist and VP strategy at Citrix Systems Inc.

The association between the two groups works well, Gruen-Kennedy said, because the ASP Industry Consortium had the technical expertise to bring to the table, while the WIPO Arbitration and Mediation Center has the structure to help businesses and their customers both avoid and resolve disputes on an international scale.

The main objective to the jointly developed guidelines, Gruen-Kennedy and Gurry agreed, is to help address ASP contract disputes before they become prevalent. These guidelines are acutely needed, they noted, because lawyers, judges, arbitrators and other “alternative dispute resolution” experts may not necessarily be familiar with the ASP industry and need insight into the unique nature of the ASP supply chain.

The guide provides an ASP industry primer, as well as examples of where disputes are likely to occur in the ASP supply chain. It then lays out a series of dispute resolution methods, both in terms of litigation and alternatives to litigation, with advantages, disadvantages and descriptions of commonly used alternative dispute resolution techniques.

Operating under the premise that dispute avoidance is the best remedy to any dispute, the guidelines help describe operational ASP best practices in areas such as problem identification, customer help desk and service level agreements (SLAs), focusing on terms and conditions for the network, host and application components to the supply chain. It also provides recommendations on drafting dispute resolution clauses for typical ASP contracts, taking into account applicable law, the scope of relief and a number of other factors.

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