This chapter offers a contribution to the discourse on procedural equality in international arbitration by explaining its interaction with other basic norms that govern the arbitral process and proposing a framework to assess equality claims.The principle of equal treatment or procedural equality is a core adjudicative ideal that has a long history dating as far back as the Magna Carta Libertatum. Together with the right to an impartial and independent tribunal and the right to be heard, the principle of equal treatment provides a foundation for the arbitral process that is essential to ensure its legitimacy. The principle of equal treatment pervades every aspect of the arbitral process and must be given due regard at each stage of the proceedings: at the stage of tribunal constitution, when joining additional parties, allocating time, determining the scope of privilege or allowing non-disputing third parties to intervene, among others. While the importance of procedural equality in international arbitration is today well-established, less attention has been paid to how claims of equality ought to be assessed. Drawing on jurisprudence on equal treatment protections in international human rights law, this chapter proposes a two-step inquiry that first considers whether there is a rational basis for any differentiated treatment between the parties, before analysing whether the differentiated treatment creates an unfair disadvantage.

Chapter 11 covers issues relating to litigation. Part A first addresses the right of exclusive licensees of patents, copyrights, trademarks and trade secrets to sue to enforce licensed IP against third party infringers, and the rules requiring licensors to be joined in such suits. The chapter next moves to contractual clauses that allocate responsibilty for litigation among the licensor and licensee (Ryan v. Graco). It next addresses contractual provisions relating to domestic and international choice of law and dispute resolution, including required arbitration and mediation (alternate dispute resolution). The shifting of fees and litigation expenses is covered next. The chapter concludes by considering special provisions germane to licenses that are entered into in settlement of litigation.

This chapter considers the issues arising in relation to the pleading phase of litigation, which is the first phase of court proceedings. After proceedings have been commenced by the originating process (which is often itself a pleading), the defendant (or defendants) must decide whether, and how, to defend the proceedings. The pleading process continues many of the key themes of civil dispute resolution discussed in Chapters 8 and 9. The procedures for pleading a case emanate from the same aims as the originating process of making justice accessible, maximising efficiency, giving all parties the right to be heard and ensuring open justice.1 Matters can involve large numbers of pleadings, with the most common types of pleadings required being defences, cross-claims, cross-defences and replies. Once all the pleadings have been filed and served, including any amendments to pleadings required and allowed by the court, the pleadings are said to have closed. The parties can then complete evidence gathering and preparation for trial.