🥒 Beyond Courts and Fields: The Structured Rise of ADR in Plant Variety Disputes

by Pierfrancesco C. Fasano

Introduction – When Innovation Outpaces Litigation

Plant Variety Rights (PVRs) operate at the crossroads of science, innovation policy, biodiversity and global trade. Modern plant breeding relies on advanced genetics, molecular markers, cross-border research partnerships and long commercial chains. As a result, disputes concerning entitlement, licensing, infringement and, increasingly, Essentially Derived Varieties (EDVs) have become more frequent and technically sophisticated.

Traditional litigation, grounded in national procedural frameworks, often proves ill-suited to these characteristics. It is slow, public, jurisdictionally fragmented and rarely equipped to handle complex scientific evidence efficiently. Against this backdrop, Alternative Dispute Resolution (ADR)—mediation, arbitration and expert determination—is emerging as a necessary complement to adjudication within the international plant variety protection ecosystem shaped by the International Union for the Protection of New Varieties of Plants (UPOV) and, at EU level, by the Community Plant Variety Office (CPVO).

UPOV: Substantive Harmony, Procedural Silence

UPOV has successfully harmonised the substantive foundations of plant variety protection through uniform criteria such as novelty, distinctness, uniformity and stability (DUS). The UPOV Convention, particularly in its 1991 Act, provides a coherent global language for breeders’ rights. However, it remains deliberately neutral on procedural enforcement and private dispute resolution.

UPOV does not administer mediation or arbitration, nor does it designate dispute-resolution bodies. Disputes arising under UPOV-based national laws—whether relating to entitlement, EDVs or licensing—are therefore channelled into domestic courts, often leading to parallel proceedings and inconsistent outcomes. While UPOV’s strategic planning increasingly emphasises system effectiveness, quality and user confidence, ADR remains an implicit rather than explicit component of the framework.

The CPVO System: Centralised Rights, Decentralised Enforcement

The EU system governed by Regulation (EC) No 2100/94 establishes a unitary plant variety right valid across all Member States. Administratively, this represents one of the most advanced regional PVR systems worldwide. Procedurally, however, the landscape is divided.

Public-law disputes concerning CPVO decisions are handled through internal appeals and EU judicial review. By contrast, private-law disputes—such as infringement actions, royalty conflicts or contractual disagreements—remain subject to national courts. This structural split creates uncertainty and cost, particularly where a single dispute affects multiple markets simultaneously.

ADR is not formally embedded within the CPVO system, yet the very nature of Community plant variety rights makes ADR particularly attractive: a single title, highly technical subject matter and strong commercial interdependence between right holders and users.

Why ADR Fits Plant Variety and EDV Disputes

Plant variety disputes display features that align naturally with ADR. They are science-driven, often hinging on genetic conformity, phenotypic comparison or testing methodology. They involve confidential data and trade secrets. They also frequently arise between parties—breeders, seed companies, research institutes—who must continue to cooperate after the dispute.

Mediation allows parties to preserve relationships and design commercially viable solutions, such as revised licensing structures or collaborative exploitation models. Arbitration offers a single, enforceable outcome for cross-border disputes. Expert determination, in particular, is uniquely suited to EDV questions, where the core issue is not legal fault but technical qualification.

From Fragmentation to Structure: Contractual ADR as a Governance Tool

In the absence of a dedicated ADR layer within the UPOV Convention or the CPVO framework, contractual design becomes decisive. Carefully drafted ADR clauses can transform dispute resolution from a reactive remedy into a predictable and proportionate governance mechanism.

Multi-tier approaches are increasingly used in plant variety agreements to ensure that disputes are addressed at the appropriate level: commercial issues through mediation, scientific questions through expert determination, and unresolved legal disputes through arbitration. Below are four model ADR clauses, suitable for inclusion in licence agreements, R&D collaborations and seed multiplication contracts.

Model ADR Clauses for Plant Variety Disputes

1. Mediation Clause

Any dispute, controversy or claim arising out of or in connection with this Agreement, including disputes relating to Plant Variety Rights, entitlement, scope of protection, royalties or contractual performance, shall be submitted to mediation as a condition precedent to litigation or arbitration.

The mediation shall be confidential and conducted by a mediator with appropriate experience in intellectual property and plant variety matters.

Unless otherwise agreed, the mediation shall commence within thirty (30) days of a written request and shall be concluded within sixty (60) days from the appointment of the mediator.

Participation in mediation shall be without prejudice to the Parties’ rights, save for any settlement agreement reached.

2. Arbitration Clause

Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity, interpretation, performance or termination, which is not resolved amicably or through mediation, shall be finally settled by arbitration.

The arbitration shall be conducted by one or more arbitrators with recognised expertise in intellectual property and plant variety protection. The seat of arbitration, language of the proceedings and applicable law shall be as agreed by the Parties.

The arbitral award shall be final and binding and may be enforced in any competent jurisdiction.

3. Expert Determination Clause (Technical and EDV Issues)

Any dispute involving predominantly technical or scientific questions, including but not limited to the qualification of a variety as an Essentially Derived Variety, genetic conformity, phenotypic comparison, molecular marker analysis or testing methodology, shall be referred to expert determination.

The expert shall act independently and impartially and shall possess recognised competence in plant breeding, genetics or a relevant scientific discipline.

The expert’s determination shall be binding on the Parties in respect of the technical issues referred, save in cases of manifest error or fraud.

4. Multi-Step ADR Clause (Mediation – Expert Determination – Arbitration)

Any dispute, controversy or claim arising out of or in connection with this Agreement, including disputes relating to Plant Variety Rights, Essentially Derived Varieties, entitlement, licensing, royalties, technical assessments or contractual performance, shall be resolved in accordance with the following multi-step procedure.

(a) Mediation

The Parties shall first attempt to resolve the dispute through mediation. The mediation shall be confidential and conducted by a mediator experienced in intellectual property and plant variety matters. Unless otherwise agreed, mediation shall commence within thirty (30) days of a written request and shall be concluded within sixty (60) days from the appointment of the mediator.

(b) Expert Determination

Where the dispute involves primarily technical or scientific issues, including EDV qualification, genetic conformity, phenotypic comparison or testing methodology, such issues shall be referred to binding expert determination by an independent expert with recognised competence in plant breeding or genetics.

(c) Arbitration

Any dispute, or any aspect of a dispute, not resolved through mediation or expert determination shall be finally settled by arbitration. The arbitration shall be conducted by one or more arbitrators with recognised expertise in intellectual property and plant variety protection. The seat, language and applicable law shall be as agreed by the Parties.

The commencement of arbitration shall not prevent the continuation or completion of expert determination on defined technical issues, where appropriate.

Conclusions – Cultivating a Culture of Resolution

ADR in plant variety protection is no longer peripheral. While neither UPOV nor the CPVO embeds ADR as a formal procedural layer, their systems are increasingly compatible with it. The growing technical complexity of EDV assessments, the economic value of innovation and the cross-border nature of exploitation make ADR not merely attractive, but necessary.

By embedding mediation, expert determination and arbitration into the contractual architecture of plant variety exploitation, stakeholders can achieve faster, more expert and commercially sustainable outcomes. In this way, ADR becomes not an alternative to the plant variety protection system, but a natural extension of its modern governance.