AIPPI Resolution: Privileges relating to Settlement Negotiations and Compromise Offers

AIPPI Resolution: Privileges relating to Settlement Negotiations and Compromise Offers  

The AIPPI’s Standing Committee on Alternative Dispute Resolution issued a resolution concerning privileged information relating to settlement negotiations and compromise offers. The AIPPI resolutions address this entity’s understanding on Intellectual Property issues with worldwide relevance.

The AIPPI understands that documents created for, and oral or written communications made during negotiations for the settlement of a dispute or offer to compromise should be subject to privilege and, therefore, should be inadmissible evidence in legal proceedings. By “privilege”, AIPPI means that any statement or document exchanged during settlement negotiations between the parties may not be used in court without the permission of the parties.

According to this association, rules regarding such privilege should be harmonized across jurisdictions, so that it applies uniformly, particularly in international and cross-border disputes.

The AIPPI affirmed that exceptions to the privilege should be limited, but may be available in the following situations: proving bias or prejudice; proving actual threats or bad faith; negating a contention of undue delay; proving the existence, the extent and/or scope of the settlement agreement. For this entity, an exceptional use in accordance with the indicated above can only be made if an advance notice with a reasonable time is given, providing opportunity for any person opposing such use to seek remedies to prevent the exceptional use.

The AIPPI understands that the privilege should be available for communications and documents made by anyone participating in the negotiations. This association also consider that the existence of privilege should be based on the purpose and content of the document or communication.

Finally, the APPI asserted that effective remedies should be available against the wrongful disclosure and use of privileged information in legal proceedings.

AIPPI’s opinions do not always comply with the laws or judicial precedents of the countries.