Attorney Steve® Technology Law Essentials - Fintech Disputes & Arbitration ("WIPO")
The Fintech (Financial Technology) sector is smoldering hot with new startups and new financial technologies. This is literally a new revolution aided by the growth of blockchain and cryptocurrency. But what happens when there is a dispute in the development process? Many times, agreeing to ARBITRATE FINTECH DISPUTES can be a wise choise to avoid costly and (PUBLIC) litigation. The World Intellectual Property Organization ("WIPO") offers a forum where Fintech Disputes can be arbitrated or mediated (see options below), which can be helpful to a startup business. If you need representation in a technology or software dispute, contact us to discuss by filling out the contact form or calling us at (877) 276-5084.
What are some of the more well-known "Fintech Companies"?
- Ant Financial
- Credit Karma
- Anchorage Digital
WIPO Fintech Arbitrations
Notes that you can create your agreements where the following types of suggested disputes might be resolved:
Selected Areas of Dispute
- IP/IT licensing
- software development agreements
- software maintenance agreements
- service level agreements
- joint ventures
- performance (e.g., payment)
- terms and conditions
- data / analytics
- interconnection issues
- application programming interfaces (APIs)
- mobile apps
- artificial intelligence
- blockchain / DLT
- smart contracts
- IP infringements
They also note the potential types of stakeholders that may want to consider arbitration clauses in their agreements.
Potential Stakeholders to Dispute
- banks, financial institutions
- software developers and programmers/ Dapp developers
- ICT companies
- account servicing payment service providers (ASPSPs)
- third party service providers (TPPs)
- payment initiation services providers (PISP)
- account information service providers (AISP)
WIPO offers various types of dispute resolution proceedings:
An informal consensual process in which a neutral intermediary, the mediator, assists the parties in reaching a settlement of their dispute, based on the parties' respective interests. The mediator cannot impose a decision. The settlement agreement has force of contract. Mediation leaves open available court or agreed arbitration options.
A consensual procedure in which the parties submit their dispute to one or more chosen arbitrators, for a binding and final decision (award) based on the parties' respective rights and obligations and enforceable under arbitral law. As a private alternative, arbitration normally forecloses court options.
An arbitration procedure that is carried out in a short time and at a reduced cost. The arbitral tribunal shall normally consist of a sole arbitrator.
A multi-tiered dispute resolution procedure that combines mediation and arbitration.
A multi-tiered dispute resolution procedure that combines mediation and expedited arbitration.
WIPO Expedited Arbitration Clause
On their page, they discuss a WIPO sample expedited arbitration clause you can put in your agreements with Fintech partners and service providers that can create a contractual obligation to arbitrate any Fintech related discputes. By way of example, here is one such clause
Any dispute, controversy or claim arising under, out of or relating to this contract and any subsequent amendments of this contract, including, without limitation, its formation, validity, binding effect, interpretation, performance, breach or termination, as well as non-contractual claims, shall be referred to and finally determined by arbitration in accordance with the WIPO Expedited Arbitration Rules. The place of arbitration shall be [specify place]. The language to be used in the arbitral proceedings shall be [specify language]. The dispute, controversy or claim shall be decided in accordance with the law of [specify jurisdiction].
Coinbase Arbitration Agreement
Here is a look at Coinbase and thier terms of service.
Dispute Resolution: PLEASE BE AWARE THAT SECTION 7 (CUSTOMER FEEDBACK, QUERIES, COMPLAINTS, AND DISPUTE RESOLUTION) AND APPENDIX 5 OF THIS AGREEMENT, CONTAIN PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND COINBASE. AMONG OTHER THINGS, APPENDIX 5 INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. APPENDIX 5 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 7 AND APPENDIX 5 CAREFULLY.
An example of an arbitration clause for Coinbase (although not apparently WIPO as the chosen venue).
It is important to note that sometimes there is a specific process you need to go through if you want to seek compensation for your losses. If you do not strictly follow these procedures, you may shoot yourself in the foot and be left without a remedy.
7.1. Contact Coinbase. If you have feedback, or general questions, contact us via our Customer Support webpage at https://help.coinbase.com. Coinbase requires that all legal documents (including civil subpoenas, complaints, and small claims) be served on our registered agent for service of process. Current contact information for our registered agent in each state can be found here.
Please note that our registered agent will accept service only if the entity identified as the recipient of the document identically matches the name of the entity registered with the Secretary of State and for which our registered agent is authorized to accept service (Coinbase, Inc.). By accepting service of a legal document, Coinbase does not waive any objections we may have and may raise in response to such document.
7.2. Formal Complaint Process. If you have a complaint with Coinbase, you agree to first contact Coinbase through our support team to attempt to resolve any such dispute amicably. If we cannot resolve the dispute through Coinbase Support, you agree to use the Formal Complaint Process set forth below before filing any arbitration claim or small claims action as described further in Appendix 5 below. You must complete the Formal Complaint Process before filing any arbitration or small claims action. If you do not complete it, then you agree that your claim or action must be dismissed from arbitration or small claims court.
7.2.1. Procedural Steps. In the event that the dispute is not resolved through your contact with Coinbase Support, you agree to use our complaint form to describe your dispute, how you would like us to resolve the complaint, and any other relevant information. The complaint form can be found here for Coinbase and here for Coinbase Pro, or can be requested from Coinbase Customer Support. If you prefer to send a written complaint via mail, please include as much information as possible in describing your complaint and how you would like us to resolve the complaint, including your support case number and any other relevant information to Coinbase Inc., 82 Nassau St #61234, New York, NY 10038. We will acknowledge receipt of your complaint form after you submit it. A Coinbase customer relations agent will review and evaluate your complaint based on the information you have provided and information in the possession of Coinbase. The Formal Complaint Process is completed when Coinbase responds to your complaint or forty-five (45) business days after the date we receive your complaint, whichever occurs first.
7.3. Arbitration. You agree to be bound by the Arbitration Agreement in Appendix 5 to this Agreement.
Also note, this is how many companies will try to limit their legal exposure in a case
8.2. Limitation of Liability; No Warranty. IN NO EVENT SHALL COINBASE, ITS AFFILIATES AND SERVICE PROVIDERS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, JOINT VENTURERS, EMPLOYEES OR REPRESENTATIVES, BE LIABLE
(I) FOR ANY AMOUNT GREATER THAN THE VALUE OF THE SUPPORTED DIGITAL ASSETS ON DEPOSIT IN YOUR COINBASE ACCOUNT(S) AT THE TIME OF THE EVENT OR CIRCUMSTANCE GIVING RISE TO YOUR CLAIM OR
(II) FOR ANY LOST PROFITS, LOSS OF GOODWILL OR REPUTATION, LOSS OF DATA, DIMINUTION IN VALUE OR BUSINESS OPPORTUNITY, ANY LOSS, DAMAGE, CORRUPTION OR BREACH OF DATA OR ANY OTHER INTANGIBLE PROPERTY OR ANY SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH ANY USE OF THE COINBASE SITE OR THE COINBASE SERVICES, OR THIS AGREEMENT, EVEN IF COINBASE HAS BEEN ADVISED OF OR KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, EXCEPT TO THE EXTENT OF A FINAL JUDICIAL DETERMINATION THAT SUCH DAMAGES WERE A RESULT OF COINBASE'S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT OR INTENTIONAL VIOLATION OF LAW. THIS MEANS, BY WAY OF EXAMPLE ONLY (AND WITHOUT LIMITING THE SCOPE OF THE PRECEDING SENTENCE), THAT IF YOU CLAIM THAT COINBASE FAILED TO PROCESS A BUY OR SELL TRANSACTION PROPERLY, YOUR DAMAGES ARE LIMITED TO NO MORE THAN THE LESSER OF THE VALUE OF THE SUPPORTED DIGITAL ASSETS AT ISSUE IN THE TRANSACTION OR THE TOTAL VALUE OF THE SUPPORTED DIGITAL ASSETS ON DEPOSIT IN YOUR COINBASE ACCOUNT(S), AND THAT YOU MAY NOT RECOVER FOR LOST PROFITS, LOST BUSINESS OPPORTUNITIES, DIMINUTION IN VALUE OR OTHER TYPES OF SPECIAL, INCIDENTAL, INDIRECT, INTANGIBLE, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
THE COINBASE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COINBASE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT. COINBASE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT ACCESS TO THE COINBASE SITE, ANY PART OF THE COINBASE SERVICES, OR ANY OF THE MATERIALS CONTAINED THEREIN, WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. COINBASE DOES NOT GUARANTEE THAT ANY ORDER WILL BE EXECUTED, ACCEPTED, RECORDED OR REMAIN OPEN. EXCEPT FOR THE EXPRESS STATEMENTS SET FORTH IN THIS AGREEMENT, YOU HEREBY ACKNOWLEDGE AND AGREE THAT YOU HAVE NOT RELIED UPON ANY OTHER STATEMENT OR UNDERSTANDING, WHETHER WRITTEN OR ORAL, WITH RESPECT TO YOUR USE AND ACCESS OF THE COINBASE SERVICES AND COINBASE SITE. WITHOUT LIMITING THE FOREGOING, YOU HEREBY UNDERSTAND AND AGREE THAT COINBASE WILL NOT BE LIABLE FOR ANY LOSSES OR DAMAGES ARISING OUT OF OR RELATING TO:
(I) ANY INACCURACY, DEFECT OR OMISSION OF DIGITAL ASSET PRICE DATA, OR ANY ERROR, DELAY OR INTERRUPTION IN THE TRANSMISSION OF SUCH DATA;
(II) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE COINBASE SERVICES OR ANY WEBSITE OR SERVICE LINKED TO OUR WEBSITE;
(III) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN OUR WEBSITES, SOFTWARE, SYSTEMS OPERATED BY US OR ON OUR BEHALF OR ANY OF THE COINBASE SERVICES; OR
(IV) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR COINBASE ACCOUNT.
Cotact Vondran Legal® - IP & Technology Law Firm
Since 2004 we have arbitrated and litigated over 300 complex legal disputes. We have appeared in over 285 Federal Court cases. We have helped companies in a wide variety of industries, and with a wide variety of intellectua property and contract related legal matters.