Tech List Members Present on Arbitrating Life Science Disputes

On May 1st, Tech List Members Angela (‘Anji’) Foster and Jonathan Fitch were panelists at an AAA-ICDR program hosted by Reed Smith in Philadelphia: “AAA-ICDR Arbitrating Domestic and International Life Science Disputes (including Pharmaceutical, Medical Device and Biotechnology).”

Anji Foster spoke on a range of topics including the suitability of arbitration for use in life science disputes, for example, with respect to license agreements and such issues as whether a drug, molecule or medical device does or does not fall within the purview of the agreement. She cited the main advantages of arbitrating life science disputes: the ability to select arbitrators with special expertise; the flexibility of the procedure; limitations on discovery; and, the confidentiality of intellectual property. Anji discussed the challenges of scheduling the phases of life science arbitrations and management of the time limitations with the parties and their counsel. Anji also said she has also observed problems in the presentation of expert testimony in life science arbitrations and that counsel need to be skilled in presenting the complexity of technologies to arbitral panels.

Jonathan Fitch addressed considerations for picking counsel, arbitrators and experts in technology-intensive life science disputes. Where the arbitrators’ industry expertise may be a factor, Jonathan suggested that parties consider using arbitrator interviews – either by parties or their counsel – within the parameters established by Canon III of The Code of Ethics for Arbitrators in Commercial Disputes. He also discussed alternatives for the presentation of expert testimony in international arbitrations of life science cases. The Parties direct examinations of experts in the form of lengthy, detailed and highly technical expert witness statements creates a risk that the arbitration will begin without the arbitrators fully understanding the technologies at issue. Possible remedial approaches include beginning the arbitration with a joint presentation by the parties’ experts on the industry technologies and science involved in the case. As an alternative to an upfront “technology and science day”, the parties may agree that the testimony of respondent’s expert will directly follow the testimony of claimant’s expert for each expert issue, thereby enabling different options for expert conferencing, including the possibility that the arbitrators may address questions simultaneously to each expert and that the experts may question each other. At the event, the arbitrators, institutional representatives and in-house counsel present fully aired and addressed both the benefits and risks for different models of expert witness testimony.