Confidential Arbitration Award in Dispute Between Phosphagenics and Mylan

In our update earlier this year, we discussed some of the advantages of arbitration in resolving intellectual property (IP)-related disputes. A recent press release published by the Melbourne-based Phosphagenics highlights one of these advantages—confidentiality. According to the press release, in 2016, Phosphagenics initiated confidential commercial arbitration proceedings against Mylan Laboratories Limited. The claim apparently related to a licensing agreement involving a lyophilised TPM®-daptomycin formulation and Phosphagenics’ claim that Mylan had not used commercially reasonable efforts to develop TPM®-daptomycin. The arbitration took place at the Singapore International Arbitration Center and resulted in an award in favor of Mylan. According to Phosphagenics’ press release, the disclosure was made “in accordance with [Phosphagenics’] continuous disclosure obligations” which required that it “notify the market of any material events as and when they occur.” The important point is that, but for Phosphagenics’ corporate disclosure obligations, the existence of the dispute and result of the arbitration would have remained confidential. Moreover, notwithstanding the mandated disclosure of the ultimate result of the arbitration, the parties were able to preserve the confidentiality of the facts presented in the arbitration.

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