Arbitration or Litigation for Pharma Deal Disputes: 2026 ICC Rules, UPC Mediation and English-Language Courts

A US licensor can agree to arbitrate a patent dispute under 35 U.S.C. § 294, subject to the applicable statutory conditions. The award binds the parties alone, and it is unenforceable until the required notice reaches the Director of the USPTO.1Federal Arbitration Act, 9 U.S.C. § 2; 35 U.S.C. § 294 (voluntary arbitration), § 294(a) to (e); 37 C.F.R. § 1.335(a) to (c); 9 U.S.C. § 201 and § 207. A patent award binds the parties only and is unenforceable until the required notice reaches the USPTO Director. A license with a Basel biotech, a co-development agreement with a German university spin-out or a supply contract with a Swiss contract manufacturer also requires analysis of the European and Swiss forum choices, several of which changed in 2025 and 2026. The ICC Arbitration Rules revised with effect from 1 June 2026 govern every ICC arbitration commenced on or after that date, whenever the clause was signed, unless the parties chose earlier rules. The mediation and arbitration center of the UPC opened for mediation on 12 May 2026 and for expert determination on 30 July 2026, alongside final arbitration rules adopted in April 2026. Since 1 May 2026 the Commercial Court of the Canton of Bern has been able to hear international commercial disputes with English pleadings, and since 1 April 2025 the German Länder have been able to create English-language Commercial Courts. Each forum allocates patent validity, urgent relief, confidentiality and enforcement differently. The clause can commit the parties to those choices long before the particular dispute is known.

1. What the 2026 ICC Rules Change in a Clause Already Signed

The general choice between arbitration and litigation for licensing disputes is sketched in biotech licensing disputes; the question here is what 2026 changed beneath that choice. A clause that refers disputes to arbitration under the ICC Rules does not freeze the procedure the parties read when they signed. Art. 1(2) ICC Rules applies the 2026 Rules to any arbitration commenced on or after 1 June 2026 unless the parties agreed to submit to the rules in effect on an earlier date.2International Chamber of Commerce, Arbitration Rules (in force from 1 June 2026, ICC Publication DRS003EN), Art. 1(2), Art. 5(2), Art. 12, Art. 23(3), Art. 24(1), Art. 29 to Art. 33 and Appendices IV to VI. Compare ICC Arbitration Rules 2021 (in force from 1 January 2021, September 2022 reprint, ICC Publication DRS892ENG), Art. 6(1), Art. 23, Art. 29 and Art. 30 ICC Rules 2021; Appendix V ICC Rules 2021. Unless the parties chose earlier rules, a dispute under a license concluded in 2022 and commenced in the autumn of 2026 therefore uses a procedure its drafters did not see when signing. Under Art. 5(2) ICC Rules, commencement is the date on which the Secretariat receives the Request for Arbitration. The Terms of Reference that Art. 23 of the ICC Rules 2021 required are no longer mandatory. Art. 24(1) ICC Rules instead sets an initial case management conference within 30 days of the tribunal receiving the file, subject to an extension by the Secretary General, Art. 30 ICC Rules allows a party to seek early determination of claims or defenses that are manifestly without merit or manifestly outside the tribunal’s jurisdiction, and Art. 12(5) ICC Rules requires each party, when it files, to list the persons and entities it believes the arbitrators should consider for their disclosures. In a pharma group whose affiliates, licensors, sublicensees, contract manufacturers and royalty investors can run to dozens of entities, that list is a document someone inside the company has to own, at a moment when the dispute has only just begun.

The renumbering has a quieter consequence. The 2021 Rules placed the emergency arbitrator in Art. 29 ICC Rules 2021 and the expedited procedure in Art. 30 ICC Rules 2021; the 2026 Rules place them in Art. 31 and Art. 32 ICC Rules, while Art. 29 ICC Rules governs conservatory and interim measures in general. A clause that opts out of either mechanism by article number rather than by name points at a different provision, and whether a tribunal reads the number or the parties’ evident intention is a question the Rules do not answer.

The expedited track is where the date of signature matters most. Under Art. 1(2) to (4) of Appendix V to the ICC Rules, the Expedited Procedure Provisions apply automatically where the amount in dispute does not exceed US$ 2 million for arbitration agreements concluded from 1 March 2017 until the end of 2020, US$ 3 million for agreements concluded from 1 January 2021 until 31 May 2026, and US$ 4 million for agreements concluded on or after 1 June 2026; they do not apply to agreements concluded before 1 March 2017, where the parties opted out or where the ICC Court finds them inappropriate. The relevant date is when the arbitration agreement was concluded. The amount in dispute is assessed when the Secretariat communicates whether the expedited provisions apply, and the parties may also opt in. Subject to the applicable fee scale and those exceptions, a US$ 3.5 million dispute under an arbitration agreement concluded in 2023 exceeds its automatic threshold; the same amount under an agreement concluded in July 2026 falls within it. In the expedited procedure, Art. 2(1) of Appendix V to the ICC Rules lets the ICC Court appoint a sole arbitrator notwithstanding any contrary provision of the arbitration agreement and Art. 4 of Appendix V to the ICC Rules sets a six-month period for the final award from the initial case management conference, which the President may extend on a reasoned request or on the President’s own initiative. A licensor that negotiated three arbitrators with pharmacological and patent expertise for every dispute may find that, below the threshold, the negotiation did not hold.

An unchanged clause can encounter new procedural rules when arbitration commences, while an expedited threshold may still depend on the date of the arbitration agreement. The chosen edition, any opt-in or opt-out, and the court’s jurisdiction remain separate questions.

The Highly Expedited Arbitration added by Art. 33 ICC Rules works the other way round. It applies only when all parties agree, whatever the amount in dispute, and Appendix VI then prescribes a sole arbitrator under Art. 4 of Appendix VI to the ICC Rules, a first case management conference within 7 days of the file reaching the tribunal under Art. 6(1) of Appendix VI to the ICC Rules, and a final award within three months of that conference under Art. 7(1) of Appendix VI to the ICC Rules. These periods may be extended by the Secretary General and the President, respectively, on a reasoned request or on their own initiative where necessary. Art. 3 of Appendix VI to the ICC Rules excludes joinder and consolidation. For a milestone dispute that turns on a single clinical readout, the speed may be the point. For a supply failure in which a licensee’s contract manufacturer and a licensor’s active-ingredient supplier each hold part of the story, the prohibition on joinder and consolidation may leave related claims to separate proceedings, depending on the parties, clauses and available remedies.

A private arbitration is not necessarily confidential. The ICC Rules impose no general duty of confidentiality on the parties: Art. 23(3) ICC Rules allows the tribunal, at a party’s request, to make confidentiality orders and to protect trade secrets, and Art. 12(8) ICC Rules binds the arbitrators rather than the parties. The Swiss Rules of International Arbitration, in force from 1 June 2021, start from a different default. Unless the parties expressly agree otherwise in writing, Art. 44(1) Swiss Rules requires confidentiality for awards, orders and materials submitted by another party that are not already public. Its exceptions cover disclosure required by a legal duty, to protect or pursue a legal right, or to enforce or challenge an award.3Swiss Arbitration Centre, Swiss Rules of International Arbitration (in force from 1 June 2021), Art. 1(2), Art. 18(1), Art. 29(3) and Art. 29(5) Swiss Rules, Art. 42, Art. 43(7) and Art. 44(1) and Art. 44(3) Swiss Rules. The same rules apply their expedited procedure where the aggregate of claims and any set-off defense does not exceed CHF 1,000,000, unless the Court decides otherwise, under Art. 42(1)(b) Swiss Rules and, under Art. 42(2)(a) and (b) Swiss Rules, respect a clause that provides for three arbitrators, merely inviting the parties to agree on one. The institutions give different default answers on confidentiality and tribunal composition, and a clause that names one of them has chosen both answers, often without discussing either.

One US instrument does not follow the clause into a private arbitration at all. A litigator used to obtaining evidence in the United States for proceedings abroad under 28 U.S.C. § 1782 meets ZF Automotive US, Inc. v. Luxshare, Ltd., in which the Supreme Court held that only a governmental or intergovernmental adjudicative body is a foreign or international tribunal under that section and that a private commercial arbitral panel is not.4ZF Automotive US, Inc. v. Luxshare, Ltd., 596 U.S. 619 (2022), 13 June 2022, slip opinion pp. 5 to 12 and 16 to 17; 28 U.S.C. § 1782. Private commercial arbitral panels do not qualify as governmental or intergovernmental tribunals. Evidence in an ICC or Swiss Rules arbitration is gathered through the tribunal’s own powers, supplemented where necessary by court assistance. Art. 184(2) IPRG lets a Swiss-seated tribunal, or a party with its consent, request assistance from the court at the seat. Since 1 January 2021, Art. 185a(2) IPRG has given a foreign-seated tribunal, or a party with its consent, a corresponding route to the Swiss court where the evidence is to be taken.5Bundesgesetz über das Internationale Privatrecht (IPRG) vom 18. Dezember 1987 (SR 291; version of 1 January 2026). Art. 184(1) to (3) and Art. 185a(2) IPRG (evidence assistance at a Swiss seat and for foreign-seated tribunals); Art. 182(3), Art. 183, Art. 185a(1), Art. 177(1), Art. 190 and Art. 190a IPRG (procedural safeguards, interim assistance, arbitrability and review).

2. Urgent Relief Before the Tribunal Is Constituted: Preliminary Orders and Cross-Border Enforcement

A licensing dispute may require urgent court relief alongside arbitration. The 2026 ICC Rules add a preliminary-order mechanism while retaining an extendable emergency-order period. Under Art. 31 ICC Rules and Art. 6(4) of Appendix IV to the ICC Rules, an emergency arbitrator has 15 days after receiving the file to make an order, subject to extension by the President. The 2021 Rules also used an extendable 15-day period, then measured from transmission of the file. Art. 7 of Appendix IV to the ICC Rules adds a preliminary order directing another party not to frustrate the purpose of the application. That order may be requested and decided without notice to the other parties, who must be given a reasonable opportunity to present their case immediately once it is granted.2 For a licensor whose licensee has announced that it will stop paying and start transferring a manufacturing process to a new partner, an order that arrives before the licensee knows an application exists is a different instrument from one that arrives after a hearing. It is not available everywhere. Under Art. 1(3)(a) of Appendix IV to the ICC Rules the Emergency Arbitrator Provisions do not apply to arbitration agreements concluded before 1 January 2012, which in a portfolio of long-running licenses and supply agreements is not an empty category.

An emergency or preliminary order does not carry its own power of coercion. Art. 183(1) and (2) IPRG allow a Swiss-seated tribunal to order interim measures on a party’s application unless otherwise agreed and let the tribunal or a party request court assistance if the affected party does not comply voluntarily. The court applies its own law. Art. 185a(1) IPRG extends that route to foreign-seated tribunals and their parties, at the place of enforcement. These provisions provide judicial assistance, not automatic enforcement of every institutional emergency or without-notice order. The decision-maker’s status and procedural safeguards still matter; Art. 182(3) IPRG requires equal treatment and a right to be heard in adversarial proceedings.5 The Swiss Rules add, under Art. 29(3) Swiss Rules, a tribunal’s own power to rule on a request for interim measures by preliminary order in exceptional circumstances before the request is communicated. The request must be communicated at the latest with the order, and the other parties must immediately have an opportunity to be heard.3 Germany is less settled. § 1041 Abs. 1 and 2 of the German ZPO let a German-seated tribunal order interim measures and a court permit their enforcement, but whether a German court may do the same for a tribunal seated in Basel or Zurich has been disputed.6Zivilprozessordnung in der Fassung der Bekanntmachung vom 5. Dezember 2005 (BGBl. I S. 3202; 2006 I S. 431; 2007 I S. 1781) (German ZPO). § 273a, § 328 Abs. 1 Nr. 5 and Abs. 2, § 1025 Abs. 1 and 2, § 1030 Abs. 1 and 3, § 1041 Abs. 1 to 3, § 1059 Abs. 2 and § 1061 Abs. 1 ZPO. The Federal Government’s bill to modernize German arbitration law, adopted by the cabinet on 10 June 2026 and submitted to the Bundesrat on 14 August 2026, would settle the point by adding § 1041 Abs. 2 to Abs. 4 Satz 1 ZPO to the provisions that § 1025 Abs. 2 ZPO applies whatever the seat, and the Bundesrat delivered its opinion on the bill on 25 September 2026.7Bundesregierung, Entwurf eines Gesetzes zur Modernisierung des Schiedsverfahrensrechts sowie zu weiteren Änderungen der Zivilprozessordnung im Bereich des internationalen Zivilverfahrensrechts, BR-Drucksache 458/26 (14 August 2026). Art. 1 Nr. 3, 11 and 19 BR-Drucksache 458/26 and memorandum at p 32; Bundesregierung, ‘Schiedsverfahrensrecht wird modernisiert’ (10 June 2026); Bundesrat, Stellungnahme des Bundesrates, BR-Drucksache 458/26 (Beschluss) (25 September 2026), pp 1–2. Proposal and opinion, not enacted law. The Bundesrat’s opinion was a legislative step, not enactment. The bill’s explanatory memorandum describes enforcement of a foreign-seated tribunal’s interim measure under the existing law as contested and proposes express judicial permission for enforcement, rather than recognition of the measure as a foreign award.

Both rule sets keep the court route open. Art. 29(2) ICC Rules and Art. 9 of Appendix IV to the ICC Rules treat an application to a competent judicial authority for interim measures as neither a breach nor a waiver of the arbitration agreement, and Art. 29(5) Swiss Rules does the same. For a patent-based injunction concerning a patent within the UPC’s jurisdiction, Art. 32(1)(c) UPCA gives the Court competence over provisional and protective measures and injunctions. That assessment must account for the patent, the claim and the transitional and opt-out rules: Art. 83(1) UPCA still permits infringement actions on European patents before national courts during the transitional period.8Agreement on a Unified Patent Court of 19 February 2013 [2013] OJ C175/1 (UPCA), Art. 3, Art. 31 to Art. 35, Art. 45, Art. 49, Art. 52(2), Art. 79, Art. 82 to Art. 84 UPCA. Court jurisdiction and enforcement, PMAC’s revocation limit, language rules and the transitional regime are separate. A licensor whose licensee keeps selling after termination may therefore seek the injunction from the UPC, the damages from a Swiss-seated tribunal and the finding that the license was validly terminated from both, and coordination depends on each forum’s applicable jurisdictional and procedural rules. Switzerland cannot join the UPCA under Art. 2(b) and Art. 84 UPCA, which limit membership to EU Member States. That does not exclude Swiss companies from UPC proceedings concerning rights and claims within the Court’s jurisdiction; Art. 33(1) UPCA expressly addresses defendants outside the Contracting Member States. Provisional measures on a Swiss patent before an action is pending belong there to the exclusive jurisdiction of the Federal Patent Court (Bundespatentgericht) under Art. 26(1)(b) PatGG.9Bundesgesetz über das Bundespatentgericht (Patentgerichtsgesetz, PatGG) vom 20. März 2009 (SR 173.41; version of 1 August 2018). Art. 26(1) to (4) and Art. 36(3) PatGG (patent jurisdiction and conditional use of English).

3. Patent Validity: What a Tribunal, the UPC and PMAC Can Decide

The US rule on validity is explicit. 35 U.S.C. § 294(a) permits arbitration of patent-validity or infringement disputes arising under a patent contract, or of an existing dispute by written agreement, subject to contract-revocation grounds. Under 35 U.S.C. § 294(c), the award binds the parties but has no force or effect on anyone else. The notice required by 35 U.S.C. § 294(d) must include a copy of the award, and 35 U.S.C. § 294(e) makes the award unenforceable until that notice is received.1 Swiss law starts with a broad arbitrability rule. Art. 177(1) IPRG makes any claim involving an economic interest capable of arbitration and draws no line around the validity of a patent.5 That arbitrability rule does not itself determine an award’s effect on third parties. Among state courts, actions concerning the validity of Swiss rights belong to the Swiss courts under Art. 109(1) IPRG and, for patents, to the Federal Patent Court under Art. 26(1)(a) PatGG, and Art. 111(2) IPRG recognizes a foreign decision on the validity of an intellectual property right only if it was rendered in, or is recognized in, the state for which protection is claimed.9

Germany applies the same economic-interest test in § 1030 Abs. 1 ZPO, but § 1030 Abs. 3 ZPO preserves statutory rules outside the arbitration book that keep particular disputes from arbitration, and § 81 Abs. 1 and 4 PatG assign the action for a declaration of nullity of a German patent or supplementary protection certificate to Germany’s own Federal Patent Court.10Patentgesetz in der Fassung der Bekanntmachung vom 16. Dezember 1980 (BGBl. 1981 I S. 1) (German PatG). § 81 Abs. 1 and 4 and § 143 Abs. 1 PatG (patent nullity actions and allocation of patent disputes among state courts). Across the EU and the Lugano states, a court seized of a patent dispute meets Art. 24(4) of the Brussels I bis Regulation11Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1 (Brussels I bis), Art. 1(2)(d), Art. 24(4), Art. 39, Art. 71a, Art. 71b, Art. 71d and Art. 73 Brussels I bis. and Art. 22(4) Lugano Convention, which reserve proceedings concerned with the registration or validity of patents to the courts of the state of registration whether the issue is raised by action or as a defense.12Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Lugano, 30 October 2007 [2007] OJ L339/3 (Lugano Convention; SR 0.275.12), Art. 1(2)(d), Art. 22(4), Art. 31, Art. 33 to Art. 35 and Art. 38(1) Lugano Convention. Both exclude arbitration altogether, under Art. 1(2)(d) of the Brussels I bis Regulation and Art. 1(2)(d) Lugano Convention. The exclusion cuts in both directions. It keeps a tribunal outside the jurisdiction rules, and it leaves an award’s treatment of validity to the arbitrability test of each state where enforcement is sought, since Art. V(2)(a) New York Convention allows recognition to be refused where the subject matter is not capable of settlement by arbitration under that state’s law.13Convention on the Recognition and Enforcement of Foreign Arbitral Awards, New York, 10 June 1958, 330 UNTS 3 (New York Convention; SR 0.277.12), Art. II(3), Art. V(1)(e) and Art. V(2) New York Convention. Entry into force: Switzerland, 30 August 1965; United States, 29 December 1970. At a Swiss seat governed by chapter 12 IPRG, an award deciding a German licensee’s invalidity defense is final on notification under Art. 190(1) IPRG. An ordinary challenge is confined to Art. 190(2) IPRG; the separate revision grounds in Art. 190a IPRG remain available. Its reception in a German enforcement court is a separate question.

The UPC changes the question for European patents in its Contracting Member States. Art. 32(1)(a), (d) and (e) UPCA give the Court exclusive competence over infringement actions, including counterclaims concerning licenses, and over revocation actions and counterclaims for revocation. Art. 35(1) and (2) UPCA establish a “patent mediation and arbitration centre”, seated in Ljubljana and Lisbon and operating as PMAC, to provide facilities for mediation and arbitration of patent disputes within the Agreement’s scope, and the same Art. 35(2) UPCA provides that a patent may not be revoked or limited in mediation or arbitration proceedings. Art. 79 UPCA applies the same limit to settlements before the Court.8 An award binding only the parties under 35 U.S.C. § 294 does not itself revoke the patent against everyone. Deciding the parties’ rights and changing a patent’s legal status are distinct acts; PMAC’s express revocation and limitation prohibition preserves that distinction.

PMAC’s rules, adopted by the UPC’s Administrative Committee on 24 April 2026, distinguish agreed obligations of a patent owner from revocation or limitation by an arbitral tribunal. Art. 21(1) of the PMAC Mediation Rules and Art. 36 of the PMAC Arbitration Rules let the parties jointly ask the Court to confirm, by decision, a settlement or consent award reached through PMAC, including a term obliging the patent owner to limit, surrender or agree to revocation of a patent or not to assert it.14Decision of the Administrative Committee of 24 April 2026 on the Arbitration Rules of the Patent Mediation and Arbitration Centre (D-AC/07/04112025_rev.2), Art. 1, Art. 2(1), Art. 16, Art. 24, Art. 25, Art. 35, Art. 36, Art. 39 and Art. 47; Decision of the Administrative Committee of 24 April 2026 on the Mediation Rules of the Patent Mediation and Arbitration Centre (D-AC/06/04112025_rev.2), Art. 15, Art. 19, Art. 21 and Art. 23. PMAC’s dated May–July 2026 announcements describe its service rollout. That is a request for judicial confirmation of agreed terms within the Court’s powers, not an independent power for PMAC to alter the patent register. Art. 2(1) of the PMAC Arbitration Rules also covers Related Disputes. Under Art. 1 of the PMAC Arbitration Rules, these include disputes involving other patents, applications and portfolios, and other intellectual property or commercial disputes, provided they have a factual, legal or commercial nexus with an actual or contemplated dispute concerning a patent or supplementary protection certificate within the UPC’s competence. With the necessary arbitration agreement, a dispute over a patent family with Swiss, US and UPC-covered European members may therefore be suitable for one PMAC proceeding. Recognition and enforcement still require a separate analysis in each relevant country.

The service rollout must be distinguished from adoption of the rules. PMAC announced the availability of ADR information sessions and mediation on 12 May 2026, was formally inaugurated in Ljubljana on 2 June, and announced expert determination on 30 July. Its 14 July announcement scheduled an Arbitration Day for 25 November 2026 to celebrate the commencement of arbitration activities. That announcement is not evidence that no consent award could already have been made: Art. 21(2) of the PMAC Mediation Rules permits the parties, with the mediator’s consent, to appoint the mediator as arbitrator to record their settlement in a consent award. Whether a given European patent falls within the UPC’s competence or has been opted out is examined in UPC opt-outs and US patent portfolios.

4. English-Language State Courts: Bern, Zurich and Germany’s Commercial Courts

For a US party that distrusts arbitration’s cost, or wants a public and appealable judgment, the Swiss and German court alternative long meant proceedings in the local language. Two provisions added to the Swiss ZPO with effect from 1 January 2025 changed the frame. Art. 6(4)(c) ZPO lets a canton give its commercial court jurisdiction over a dispute that concerns the business activity of at least one party, has an amount in dispute of at least CHF 100,000, comes to that court with the parties’ consent and involves at least one party with its domicile, habitual residence or seat abroad when consent is given, and Art. 129(2)(b) ZPO lets cantonal law allow English in those disputes at the request of all parties.15Schweizerische Zivilprozessordnung (Zivilprozessordnung, ZPO) vom 19. Dezember 2008 (SR 272; version of 1 July 2026). Art. 6(4)(c) and (5), Art. 129(2)(b), Art. 54(1) and (3) and Art. 156 ZPO (international commercial jurisdiction, English on all parties’ request, interim measures and confidentiality).

The Canton of Bern used both powers. Since 1 May 2026 Art. 7(3) EG ZSJ gives the Commercial Court (Handelsgericht) of the Canton of Bern jurisdiction over those international commercial disputes, and the cantonal decree on court languages allows written submissions and oral pleadings in English under Art. 3(4) GSD (Bern), read with the all-party request required by Art. 129(2)(b) ZPO, and permits instruction in English on all parties’ request under Art. 4(3a) GSD (Bern).16Kanton Bern, Einführungsgesetz zur Zivilprozessordnung, zur Strafprozessordnung und zur Jugendstrafprozessordnung (EG ZSJ) vom 11. Juni 2009 (BSG 271.1; version of 1 September 2026), Art. 7(3) EG ZSJ. Kanton Bern, Dekret über die Gerichtssprachen (GSD) vom 24. März 2010 (BSG 161.13; version of 1 May 2026), Art. 3(4), Art. 4(3a) and Art. 5(1) GSD (Bern) (English submissions and instruction are separate; judgment follows instruction). Art. 5(1) GSD (Bern) then issues the decision in the language of instruction. English pleadings and English instruction are separate choices. Permission to plead in English alone leaves instruction, and therefore the judgment, in German or French. An appeal then leaves the canton. Art. 42(1bis) BGG allows submissions in English to the Federal Supreme Court (Bundesgericht) where the proceedings below were conducted in English, but Art. 54(1) BGG has the Court conduct its own proceedings in an official language.17Bundesgesetz über das Bundesgericht (Bundesgerichtsgesetz, BGG) vom 17. Juni 2005 (SR 173.110; version of 1 April 2026). Art. 42(1bis), Art. 54(1) and Art. 77(2bis) BGG (English submissions do not make the Court’s proceedings English). Before the Federal Patent Court, Art. 36(3) PatGG allows English with the consent of the court and the parties and keeps the judgment in an official language.

Zurich has taken the same path more slowly. Its Regierungsrat proposed a Zurich International Commercial Court within the existing commercial court on 2 July 2025, with proceedings in English at the request of all parties, and the Kantonsrat’s committee for justice and public security recommended the bill to the plenary by 10 votes to 5, in a report dated 21 May 2026 and announced on 25 June 2026.18Kanton Zürich, Regierungsrat, Gesetz über die Gerichts- und Behördenorganisation im Zivil- und Strafprozess (GOG), Änderung: Zurich International Commercial Court und weitere Anpassungen im Zivilprozess, Antrag vom 2. Juli 2025, Vorlage 6034. Kommission für Justiz und öffentliche Sicherheit, Antrag vom 21. Mai 2026, Vorlage 6034a, pp 1–5; Kanton Basel-Stadt, Gerichtsorganisationsgesetz (GOG) vom 3. Juni 2015 (SG 154.100; version of 15 June 2025), § 3 Abs. 1 and § 5 Abs. 1 GOG (Basel-Stadt). Basel-Stadt has no commercial court. § 5 Abs. 1 GOG (Basel-Stadt) assigns first-instance civil matters to the civil court, and § 3 Abs. 1 GOG (Basel-Stadt) makes German the official and procedural language. Choosing the Basel courts does not itself secure English proceedings, even where the contract is in English.

Germany built a parallel structure a year earlier, with a carve-out that matters to this reader. The Justizstandort-Stärkungsgesetz of 7 October 2024, in force since 1 April 2025, lets the Länder establish Commercial Courts as senates of a higher regional court with first-instance jurisdiction, by agreement of the parties, over civil disputes between businesses with an amount in dispute of at least EUR 500,000 under § 119b Abs. 1 and 2 GVG. It also lets them designate Commercial Chambers and Commercial Courts that conduct proceedings entirely in English under § 184a GVG where the parties agree to English or the defendant responds in English without objection, with a conditional English-language path to the Federal Court of Justice (BGH) under § 184b GVG. English must be requested in the appeal document and accepted by the competent senate, which can later require German.19Gerichtsverfassungsgesetz in der Fassung der Bekanntmachung vom 9. Mai 1975 (BGBl. I S. 1077) (GVG). § 119b Abs. 1 and 2, § 184a Abs. 1 and 3 and § 184b Abs. 1 and 2 GVG; Justizstandort-Stärkungsgesetz vom 7. Oktober 2024, BGBl. 2024 I Nr. 302, Art. 1 and Art. 7(1) Justizstandort-Stärkungsgesetz (effective 1 April 2025). The Federal Government’s arbitration bill records that the first Commercial Courts had been created by the time it was drafted.7 Under § 273a ZPO a German civil court may, on a party’s application, classify information at issue as confidential where it may be a trade secret.6 The carve-out sits in § 119b Abs. 1 Satz 1 Nr. 1 GVG, which excludes disputes in the field of industrial property protection (gewerblicher Rechtsschutz), copyright and unfair competition from the Commercial Court’s jurisdiction over disputes between businesses, and § 184a GVG ties the English-language chambers to the same list. § 143 Abs. 1 PatG, for its part, gives the civil chambers of the regional courts exclusive jurisdiction over every action asserting a claim from a legal relationship regulated by the Patent Act, a category that may reach a claim under a patent license.10 Whether a particular licensing or collaboration claim falls within that carve-out requires characterization of the claim. A patent-related commercial contract is not, merely by that description, excluded from every English-language court route.

The German bill would carry English into the courts that supervise arbitration as well. Under proposed § 1063a of the ZPO draft in BR-Drucksache 458/26, the court proceedings listed in § 1062 Abs. 1 ZPO would be conducted entirely in English before a Commercial Court designated for English, where the parties agree, and would let the Länder open English to a higher regional or supreme Land court with concentrated arbitration jurisdiction that hosts no Commercial Court. The Bundesrat’s opinion of 25 September 2026 asked that this second option also reach higher regional courts that host a Commercial Court but keep arbitration matters in specialized senates. Under proposed § 1054b of the ZPO draft in BR-Drucksache 458/26, a German-seated tribunal could publish its award in anonymized or pseudonymized form with the parties’ consent, and would treat a party’s silence for three months after receiving the tribunal’s request, with prior warning of this consequence, as consent. The parties could agree otherwise, and other legal requirements on publication would remain applicable.7 Switzerland has allowed English submissions to its own supervisory court since 2021. Under Art. 77(2bis) BGG, submissions in challenges to arbitral awards before the Federal Supreme Court may be drafted in English.17

Enforcement is where the court and arbitration routes diverge most for a US party. For an award made in Switzerland or Germany that falls under the New York Convention, 9 U.S.C. § 207 permits a confirmation application to a competent US court within three years after the award is made and requires confirmation unless a Convention ground for refusal or deferral applies, and a US award is enforced in Switzerland under Art. 194 IPRG through the same Convention, in force for Switzerland since 30 August 1965 and for the United States since 29 December 1970.13 Judgments travel on different rails. Within the EU a judgment enforceable in its Member State of origin is enforceable in the others without any declaration of enforceability under Art. 39 of the Brussels I bis Regulation. A Bern judgment reaches an EU Member State under the Lugano Convention, which still requires a declaration of enforceability under Art. 38(1) Lugano Convention and allows refusal on the grounds in Art. 34 Lugano Convention.12 A Delaware or New York money judgment against a Swiss licensee faces the recognition conditions in Art. 25 to Art. 27 IPRG, including an accepted jurisdictional basis, finality and absence of a refusal ground. In Germany, reciprocity is one of the recognition conditions under § 328 Abs. 1 Nr. 5 ZPO.6 The 2019 Hague Judgments Convention does not close that gap for this reader. It entered into force for the EU and its bound Member States, excluding Denmark, on 1 September 2023, and for the United Kingdom on 1 July 2025. Switzerland is not a party, and the United States signed on 2 March 2022 without ratifying. Art. 2(1)(m) and Art. 2(3) Hague Judgments Convention exclude intellectual property and arbitration, although Art. 2(2) Hague Judgments Convention does not automatically exclude a judgment merely because intellectual property arose as a preliminary question.20Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague Judgments Convention), Art. 2(1)(m), Art. 2(2), Art. 2(3) and Art. 8 Hague Judgments Convention; HCCH status table and EU declaration of 29 August 2022. Neither the United States nor Switzerland is bound at the article’s horizon.

5. Strategic Considerations for US Licensors and Their European Partners

The first questions concern the disputes a single agreement will generate, and they are rarely one. A license with milestone payments, a royalty-audit right, a supply schedule, a technology transfer on termination and a clause restricting validity challenges can produce a claim for money, a claim for performance, a claim that the patent is invalid and a claim that the license has ended, each against a different mix of licensor, licensee, affiliates and contractors. Whether one forum suits all of them, whether a tiered clause sends them to mediation first and before whom, and whether the answer changes once a third party challenges one of the patents before the UPC, are questions the text of most clauses answers only by accident. Whether a clause signed in 2023 yields the 2026 ICC Rules, which expedited threshold it carries, whether its opt-outs name articles that have since moved, and whether every entity whose conduct will be in issue is bound by it can be read from the documents. What cannot be read from them is whether the parties would still choose the answers they get.

PMAC adds a second layer for any portfolio with European patents inside the UPC’s competence. A clause that sends patent disputes to PMAC mediation and everything else to ICC arbitration has to decide in advance which disputes are patent disputes, a distinction made legally significant by § 119b GVG and § 143 PatG. Whether the suspension of limitation periods under Art. 23(1) of the PMAC Mediation Rules, which applies only to the extent the applicable law permits, holds under the law that governs the license; whether an opt-out from the UPC leaves a patent reachable only through the Related Disputes route; and whether a settlement term obliging a licensor to surrender a patent, once confirmed as a decision of the Court, can be relied on outside the Contracting Member States are questions the new rules raise and leave open.

For parties drawn to an English-language state court, the questions shift to characterization and reach. Whether a dispute under a co-development agreement is an international commercial dispute under Art. 6(4)(c) of the Swiss ZPO, whether every party will ask for English instruction in Bern, whether the German Commercial Court’s industrial-property carve-out removes the core of a licensing dispute from its jurisdiction, and whether the resulting judgment can be enforced where the counterparty’s assets are, given that neither the Lugano Convention nor the Hague Judgments Convention reaches the United States, turn on facts that differ from deal to deal.

For a US-listed licensor, confidentiality planning must account for applicable disclosure duties. Item 103 of Regulation S-K requires a brief description of material pending legal proceedings within its scope, subject to its exceptions.2117 C.F.R. § 229.103 (Item 103 of Regulation S-K, legal proceedings), § 229.103(a), (b)(2) and (c). The materiality and exception analysis determines the applicable disclosure duty; mandatory disclosure remains distinct from voluntary publicity. Whether a particular proceeding must be disclosed, and what must be disclosed, requires a legal assessment. That assessment does not make a required disclosure voluntary: Art. 44(1) Swiss Rules and Art. 47(3)(iv) PMAC Arbitration Rules permit legally required disclosure. Additional voluntary publicity requires a separate confidentiality analysis. Where 35 U.S.C. § 294 applies, the notice and unenforceability rules in 35 U.S.C. § 294(d) and (e) must also be addressed; a foreign seat or confidentiality clause should not be treated as a substitute for compliance. Nor does choosing private commercial arbitration preserve access to evidence under 28 U.S.C. § 1782, which ZF Automotive reserves for governmental or intergovernmental adjudicative bodies.

Which of these lines a given agreement sits on depends on where the parties and their assets are, which patents the license covers and where they are in force, what the existing clauses and opt-outs actually say, and which disputes the commercial relationship is likely to produce.