[Cross-posted from Concurring Opinions]
This recent New Yorker piece about “Baselworld,” the annual watchmakers’ confab in Switzerland (Patricia Marx, “Face Value,” May 25, 2009) included a throwaway line that I found fascinating. Baselworld is so large that it has its own police force and “a judiciary to settle trademark disputes.” Whoa. Huh?
True enough, Baselworld includes a limited-time, limited-purpose private arbitration forum, translated in English as “the Panel.” Here’s the Baselworld page about “the Panel”: “The Panel is an arbitration board within the show that deals with complaints about violations of intellectual property rights during the BASELWORLD Watch and Jewellery Show. The complaints procedure is provisional in nature. It grants the successful applicant temporary legal protection within 24 hours and ensures that intellectual property rights are respected and that peace is maintained at the show.”
Exhibitors are required to consent to the “jurisdiction” of the Panel. Its powers cover the full range of IP claims and related rights (trademark, copyright, patent, unfair competition), but procedures are relatively informal, and sanctions are limited to removal of the offending item(s), and perhaps closure of the offending exhibition pavilion, during Baselworld itself. The online summary notes, “If the legal dispute is continued before an ordinary court, the decisions of the Panel may be used as expert opinions if need be.” I don’t know what that means.
Justifications for special purpose tribunals like this one often rely on blends of private interest (my paraphrase: “the participants consented to the panel’s authority”) and public rule (again: “the panel is empowered to adjudicate claims regarding patent rights”). I wonder whether we have a persuasive general account of these hybrids. (Some of the “New Governance” work in the US, and its European cousin, focuses in part on this question, but only in part.) They’re increasingly common, and in some areas, quite important. For domain names, there is the Uniform Domain Name Dispute Resolution Policy (UDRP). For screenwriters, there is the arbitration system administered by the Writers Guild of America. Major League Baseball players submit to “baseball arbitration.” (Since “baseball arbitration” has become an ADR term of art, linguists will note the redundancy. What kind of arbitration would baseball players submit to – other than baseball arbitration?) Not surprisingly, with fantasy baseball comes fantasy baseball arbitration. The sporting world also brought us a special purpose tribunal at the edge of fantasy, the “Eagles Court” that operated at the old Veterans Stadium in Philly to deal with fans who had an uneasy relationship with reality.
Of course the “Eagles Court” was a real court, with a real judge. It just happened to be located in a stadium, not in a courthouse. Baselworld, the UDRP, the WGA procedures, and “baseball arbitration” are forms of private arbitration. So to some folks, the interesting questions don’t have to do with the public/private blends that generate the authority of special purpose tribunals (those questions might be answered easily). Instead, the interesting questions have to do with institutional design. How “closed” does the relevant community need to be (if it needs to be “closed” at all)? Relatedly but distinctly, what kind of assent to the authority needs to be present? How transparent and fair do relevant procedures need to be, and whose standards of transparency and fairness apply? What is the “right” relationship between the rulings of the special-purpose tribunal and traditional public authority?
Curiously, the one question that the Panel might answer authoritatively at a watchmakers convention appears *not* to be part of its mandate.
There is no Baselworld procedure for settling disputes over what time it is.