A cautionary tale: navigating jurisdiction and arbitration in cross‑border life sciences disputes

Jessica Gregson
Stevens & Bolton, United Kingdom
Jessica.Gregson@stevens-bolton.com

Catherine Penny
Stevens & Bolton, United Kingdom
catherine.penny@stevens-bolton.com

Introduction

The continued globalisation of research, development and commercialisation within the life sciences sector has led to a marked increase in both the frequency and complexity of cross‑border intellectual property (IP) disputes. As research, licensing, and commercialisation activities now routinely span multiple jurisdictions, disagreements concerning the scope, ownership and use of core IP rights rarely remain confined to a single territory. At the same time, the territorial nature of IP rights makes enforcement a global endeavour, often requiring coordinated action across multiple countries. In practice, disputes over foundational IP (whether contractual in nature or relating to enforcement) often extend beyond a single legal system.

Within this landscape, the importance of precise and internally coherent dispute resolution provisions cannot be overstated, although they are often not given the attention they deserve at the contract drafting stage. A recent matter handled by the authors of this article demonstrated the consequences of misalignment, where jurisdiction and governing law clauses, though ostensibly standard, failed to operate in a wholly complementary manner. This lack of alignment generated procedural uncertainty and introduced avoidable strategic complexities. This article reflects on that experience and considers the wider implications of inadequately harmonised dispute resolution provisions in cross-border IP disputes.

Types of IP disputes

Disputes in the life sciences sector generally fall into two overlapping categories: contractual disagreements arising from the complex contractual frameworks that underpin research, development, collaboration, and commercialisation activities, and enforcement actions relating to patents, know-how, trade secrets, regulatory data, and other IP assets.

Building on this distinction, cross‑border contractual disputes commonly arise when parties to these arrangements have different interpretations to issues such as ownership, licensing structures, data governance, and the allocation of downstream commercial value. Where the interpretation of core provisions, including the scope of rights granted, the division of responsibilities, or control over newly generated IP, diverges, those differences can quickly crystallise into formal disputes, often against a backdrop of significant scientific, regulatory, and commercial interdependence.

Beyond contractual disagreements, life sciences companies also pursue cross‑border IP actions to protect core assets such as patents, know-how, trade secrets, regulatory data, and other proprietary information fundamental to their competitive position. Because product development and market entry are inherently global, enforcement efforts can often unfold across several jurisdictions at once. In practice, many disputes straddle both areas: contractual tensions intertwined with broader assertions of IP rights, creating multilayered conflicts that demand coordinated legal, technical, and commercial strategies.

Fora

In life sciences disputes, the selection of forum is often a decisive strategic consideration, as it should be. These matters commonly combine complex scientific evidence, cross‑border collaborations, and overlapping regulatory and IP frameworks. The chosen forum can therefore influence not only procedural dynamics and evidentiary standards, but also the availability of urgent relief, the handling of confidential technical data, and the ability to coordinate multi‑jurisdictional proceedings.

However, the type of the dispute in question is also likely to determine where a claim can be pursued: whilst parties usually enjoy considerable autonomy at the time of negotiation to choose where contractual disputes will be resolved, IPR enforcement is inherently territorial and therefore more restrictive, tied to national rights and national courts.

Contractual disputes

Contractual disputes in cross‑border life sciences arrangements are typically governed by the jurisdiction and dispute resolution provisions negotiated at the outset of the relationship. At their best, these clauses provide clarity and predictability; at their worst, they create fragmentation, procedural uncertainty, strategic imbalance and the opportunity for distracting satellite litigation and arguments about procedural matters particularly where governing law, jurisdiction and arbitration provisions have not been drafted to operate in concert.

Given the international nature of life sciences collaborations, parties frequently opt for international arbitration, often under the rules of institutions such as the ICC or LCIA. Arbitration offers several advantages in this sector: confidentiality protects sensitive scientific and commercial information; parties can select tribunals with the necessary technical or regulatory expertise; and the procedural flexibility of arbitration is well‑suited to disputes that may involve extensive expert evidence, evolving scientific data, or parallel regulatory considerations. Easier enforcement of arbitral awards (generally speaking) is also an advantage.

Where arbitration is not specifically agreed upon, litigation is the default forum and parties typically select courts recognised for commercial sophistication and experience with technically heavy matters, such as the commercial courts of England and Wales. These courts offer predictable contractual interpretation and strong case‑management tools, which can be critical in disputes involving intertwined scientific and commercial issues.

Jurisdiction clauses also serve to reduce the risk of parallel proceedings, forum shopping and inconsistent outcomes. The choice of forum carries strategic weight: a neutral arbitral seat or indeed neutral national courts may help balance negotiating power, while choosing a familiar national court may provide practical or tactical advantages. Ensuring these provisions are properly aligned across all contractual documents is essential to maintaining clarity and avoiding fragmentation in the event of a dispute.

IP enforcement

In contrast, IP enforcement actions, at least those which are intended to have an impact which is broader than the parties to the current dispute, derive from territorial rights and therefore must be brought before the relevant national courts or specialised tribunals with authority over those rights. As a result, rights holders may need to pursue coordinated actions across multiple countries, each governed by its own procedural rules, evidentiary standards, and substantive legal frameworks.

For life sciences companies operating globally, IP enforcement therefore often unfolds in parallel with broader commercial or regulatory considerations. Effective management requires synchronisation across jurisdictions to avoid inconsistent outcomes, protect confidential technical information, and preserve leverage in related contractual or collaboration‑based disputes.

Overlap between contractual and IP pathways

In practice, life sciences disputes often involve both contractual and IP elements. These mixed disputes may proceed simultaneously in contractual fora (courts or arbitration) and before national IP courts, making coordination essential to avoid inconsistent outcomes and to maintain a coherent commercial and litigation strategy.

Arbitration in cross‑border life sciences disputes

Arbitration continues to be the dispute resolution mechanism of choice for many life sciences companies engaged in cross‑border contractual arrangements. Its appeal lies in neutrality, confidentiality, enforceability, and the ability to constitute tribunals with sector‑specific expertise.

Misalignment between arbitration seat and governing law

A common source of complexity, and sometimes unintended risk and cost, is the misalignment between the seat of arbitration and the governing law of the contract. Misalignment arises where the arbitration seat differs from the governing law selected for the substantive agreement.

Such inconsistencies can generate procedural and strategic consequences. The law of the seat governs essential procedural matters, including court supervision, arbitrator challenges, interim measures, and the grounds on which an award may be set aside. The governing law of the contract determines the parties’ substantive rights, obligations, and remedies. Divergence between the two may therefore introduce unanticipated procedural hurdles or policy considerations into what the parties assumed would be a straightforward contractual dispute.

Illustrative examples include:

• English law contract with a Paris‑seated arbitration: French public policy, procedural rules, and disclosure principles may influence the proceedings, potentially affecting issues such as access to technical evidence or document production.
• US law contract with an arbitration seat in London: Interplay between the Federal Arbitration Act and the English Arbitration Act can complicate the roadmap for challenging an award or obtaining interim relief.

The practical implications of misalignment for life sciences companies are significant:

• Divergence between seat and governing law typically requires dual legal advice: counsel specialising in the contract’s governing law to interpret substantive rights, and counsel familiar with the law of the arbitration seat to navigate procedural issues. This naturally increases cost at the outset and throughout the dispute.
• Procedural complexity and delay also follow. Before reaching the substantive dispute, parties may need to resolve threshold questions about jurisdiction, arbitrator appointment, or applicable procedural rules. In high‑value or strategically important life sciences disputes, these interlocutory battles can add months to the overall timeline, increasing pressure and uncertainty.
• Strategically, an opponent may exploit ambiguities in the dispute‑resolution framework to raise tactical challenges or to undermine a party’s ability to secure urgent interim relief, such as measures protecting clinical data or preventing the misuse of proprietary technology. If the arbitration seat’s mandatory rules diverge from expectations under the substantive governing law, parties may find that procedural protections they thought they had negotiated are weakened or unavailable.
• Finally, the risk extends to enforceability. Awards may be more vulnerable to challenge if the courts at the seat consider that procedural irregularities arise from the structural mismatch. Inconsistent or unexpected oversight may complicate enforcement efforts under the New York Convention and introduce further delay.

Importance of the chosen arbitration rules

The arbitration rules selected by the parties can also significantly influence how a life sciences dispute unfolds, as they dictate key procedural features such as the availability of emergency or expedited relief, the breadth of document production, confidentiality obligations, the mechanisms for appointing technically experienced arbitrators, and the applicable fee model. These rules must also operate coherently with the procedural law of the seat, otherwise tribunal powers or confidentiality protections may be narrower in practice than the parties anticipated.

Conclusion: align early to avoid complexity later

Cross‑border IP disputes in the life sciences sector may be inevitable, but unnecessary procedural complexity in the resolution of those disputes is not. As collaborations continue to be increasingly global and IP becomes more valuable, parties should ensure early alignment between governing law, forum selection, arbitration seat, arbitration rules and all related contractual documents. The consideration of this part of the contract should be given due attention. Companies that proactively harmonise these elements are better positioned to manage disputes efficiently, protect critical assets and minimise strategic risk when conflicts cross borders.