PMAC is the UPC’s ‘multi-door’ dispute resolution partner, Director Aleš Zalar says

Olivia Sophie Rafferty contributed to this article.

ip fray: Last time we spoke, the PMAC had not yet been launched (October 18, 2024, ip fray interview). Since then, the Centre has become operational and its procedural framework has changed considerably. Could you bring us up to date on what has happened at the PMAC?

Aleš Zalar: A lot has happened since we last spoke. We secured premises for the PMAC office in Ljubljana and employed two case managers and two secretaries. Following two public calls, we accredited 387 neutrals from six continents, including mediators, arbitrators and experts. Of those, 148 declared specific expertise in FRAND disputes.

We have developed case-management systems for mediation and expert determination, and we are finalizing the system for arbitration, which will launch on November 17, 2026, followed by PMAC Arbitration Day in Lisbon on November 25, 2026.

We also held the official inauguration of the PMAC in Ljubljana, Slovenia, in June, which included the first training course for accredited neutrals. In parallel, we completed the public consultation on the expert determination rules, which have now been approved by the Administrative Committee, and that service is already operational. The consultation on the early neutral evaluation rules has also closed, and the PMAC Expert Committee is reviewing the feedback.

The PMAC FRAND Guidelines Working Group has published its discussion paper and launched the public consultation process, so we are already receiving feedback. At the same time, we have been engaged in an awareness campaign through conferences, forums, roundtables and webinars.

Most importantly, we have started receiving cases. We have received requests for mediation and for ADR information sessions, where a PMAC neutral advises disputants or litigants on whether their dispute may be suitable for ADR and which procedure might be appropriate.

ip fray: You mentioned the regulatory framework as a particularly important development. How broad is the PMAC’s scope of competence compared with the jurisdiction of the UPC?

Aleš Zalar: The PMAC’s scope of competence is considerably wider than the UPC’s jurisdiction.

The PMAC rules cover not only disputes falling within the UPC’s jurisdiction, but also related disputes. That can include national and international patents, patent applications and patent portfolios, whether or not the rights concerned are European or unitary patents.

In practical terms, a dispute involving a European patent can, if the parties agree, bring the U.S., Chinese, Japanese, Korean, or Brazilian members of the same patent family within the same proceedings. It can also include national patents outside the UPC system, opted-out patents, related licences, trade secrets, and the wider commercial relationship. No national or supranational court in Europe can deal with all of that in a single proceeding in the same way.

ip fray: Are there issues the PMAC can also address that fall outside the UPC’s jurisdiction?

Aleš Zalar: Yes. Article 32(2) of the UPC Agreement leaves issues such as entitlement, ownership, employee-inventor compensation and many contractual and licensing disputes to national courts. A PMAC arbitral tribunal, mediator or expert can deal with those issues alongside the patent dispute.

ip fray: What about geographical reach and enforcement?

Aleš Zalar: A UPC judgment is enforceable in Europe, but a PMAC arbitral award can be enforced internationally in 172 countries under the New York Convention, including in jurisdictions such as China, Japan, Switzerland, and the UK.

The parties can also choose the seat of arbitration and the governing law, including outside the European Union. This means the PMAC can potentially deal with disputes that have no real European centre of gravity.

ip fray: And where does the UPC retain advantages over the PMAC?

Aleš Zalar: Access to the UPC does not depend on the other party’s consent, whereas ADR at the PMAC is voluntary. A UPC revocation decision has erga omnes effect, while an arbitral award or mediated settlement binds only the parties.

The UPC can also grant relief against third parties involved in infringement, whereas a PMAC arbitral tribunal can only decide disputes between parties that have submitted to arbitration. Those are the main differences between the jurisdiction of the UPC and the broader scope of competence available at the PMAC.

ip fray: Last month the PMAC published the Discussion Paper on FRAND Guidelines (September 25, 2026 PMAC FRAND Guidelines). Which parts of the proposed framework do you expect may still evolve before the Guidelines are finalised?

Aleš Zalar: We consider the FRAND Guidelines a very important document despite their non-binding nature, particularly given recent developments such as the guidelines issued by the Munich Regional Court’s Seventh Civil Chamber or recent case law developments in various jurisdictions.

The Working Group therefore decided on a two-stage public consultation process:

• The first stage, which is now underway, concerns the overall structure of the Guidelines and the issues they should address.
• Upon the revised draft Discussion Paper, the Working Group will prepare a draft FRAND Guidelines and then submit the document to the second stage of the public consultation process. Feedback from SEP holders, implementers and other stakeholders will be thoroughly analysed and, if appropriate, incorporated. Transparency and inclusiveness are guiding principles of this process.

ip fray: One issue you discussed was how the Guidelines should deal with case law. What did the Working Group decide?

Aleš Zalar: We discussed whether the Guidelines should refer to decisions from the UPC, German, French, UK, Chinese, Brazilian, and U.S. courts, and whether that should involve simple references or more detailed summaries.

The Working Group ultimately concluded that incorporating jurisprudence directly into the Guidelines would be too demanding and would require constant monitoring and updating. Instead, it proposed exploring the creation of a separate database of relevant case law in cooperation with the European Patent Office (EPO), taking into account already available case-law databases.

ip fray: How far has that idea progressed?

Aleš Zalar: I approached the EPO with the idea, and the response was very positive. They indicated that they were willing to cooperate and had the capacity to do so, including through the EPO Observatory. We are still at a very early stage and will discuss in more detail how such a project could work.

ip fray: Would that database cover arbitral awards as well as court decisions?

Aleš Zalar: That remains an open question. The difficulty with arbitration is that many awards are confidential, and it is relatively rare to see FRAND awards that disclose, for example, the methodology used to determine a FRAND rate. So the Guidelines themselves are not expected to reproduce or analyse the jurisprudence in detail. The idea is instead to develop a separate resource that could be useful both for PMAC users and for PMAC neutrals.

ip fray: Without pre-empting the consultation process, which issues required the most debate within the Working Group when preparing the Discussion Paper?

Aleš Zalar: One issue was the question of jurisprudence. Another was how the Guidelines should address the methodology used in FRAND determinations.

The Working Group concluded that the Guidelines should remain methodology-neutral. They should not favour any particular approach, but instead identify the available approaches that disputants or litigants may wish to consider. That is why the Guidelines envisage a checklist of issues for parties.

ip fray: So the PMAC does not intend to endorse a particular FRAND methodology?

Aleš Zalar: No. The PMAC is a neutral and independent institution, so we do not intend to go in the direction of, for example, the recent Munich Regional Court guidelines, which indicate a specific discount for Chinese patents. That is not the kind of position PMAC would take.

Our role is to identify the options available to parties based on experience, recent developments, jurisprudence and direct negotiations in SEP and FRAND disputes.

ip fray: What do you want the Guidelines to help users do in practice?

Aleš Zalar: The Guidelines are intended to help both PMAC neutrals and users of the PMAC services, including companies, legal departments and patent litigators, understand which issues should be considered in a FRAND dispute and what might point towards a particular process, whether mediation, arbitration, expert determination, a hybrid process or, potentially, early neutral evaluation.

Much will depend on the feedback received during the public consultation. If stakeholders identify particular needs, the Working Group will take those into account. We are already seeing different views and expectations from SEP holders and implementers. That is natural in this kind of dispute, and the aim will be to find the right balance between those competing interests.

ip fray: You have previously said that participating in PMAC proceedings may help parties demonstrate good-faith willingness under Huawei v. ZTE. Could the reverse also be relevant? Could unreasonable refusal to mediate or arbitrate be considered by the UPC when assessing willingness?

Aleš Zalar: I cannot speak on behalf of the UPC, of course. I can only point to what the Court has ordered or decided so far. The Mannheim Local Division’s order in Samsung v. ZTE suggests that, at least in SEP and FRAND disputes, the UPC may be moving in this direction. Mediation is a very soft form of ADR: the parties control the process and the outcome, and they can leave the process if they do not wish to continue.

But the message we take from the order is that, when the Court proposes mediation, the parties should at least make an attempt.

ip fray: Would that amount to forcing the parties to settle?

Aleš Zalar: No. That is very different from forcing the parties to settle. Nobody can force a settlement in mediation. But in the Huawei v. ZTE procedural framework, willingness is part of the mandatory assessment, so litigants should take a court proposal to mediate very seriously.

ip fray: Could refusing or delaying mediation also have consequences beyond the willingness assessment?

Aleš Zalar: The Munich LD order indicates that inappropriate delay or evasive behavior in responding to a proposal to mediate may be relevant in two ways.

First, it may be taken into account when the Court assesses the parties’ willingness to negotiate a licence in good faith. Second, it may be relevant when the Court considers whether further litigation costs were reasonable and whether those costs should be reimbursed.

That is particularly interesting because it resembles the approach developed by UK courts, where unreasonable refusal to mediate could have cost consequences. That later developed into procedural rules allowing UK courts to order parties to mediation. The UPC cannot force the parties to mediate, but it can give them a strong incentive to consider it.

ip fray: You have also suggested that mediation before the UPC may become “presumed” while still remaining voluntary. What would that mean in practice?

Aleš Zalar: In SEP and FRAND disputes, parties may already face procedural consequences to some extent if they do not engage seriously with a proposal to mediate.

In more traditional patent disputes, the expectation is also built into the UPC’s procedural framework. Rule 11 requires the Court, in appropriate cases, to encourage litigants to consider ADR and referral to the PMAC. In my view, that creates a corresponding expectation that litigants take such proposals seriously.

ip fray: How is that expectation now reflected in UPC practice?

Aleš Zalar: Since around August 28, 2026, in almost all UPC cases, once the defendant has filed its defence, the Registry sends the parties written information about the procedures available at the PMAC, which implies an invitation to consider an appropriate ADR process as prescribed by the PMAC’s procedural rules.

ip fray: What can parties do once they receive that information?

Aleš Zalar: They can provide their consent for selected ADR proceedings or at least request a free online ADR information session with a PMAC neutral. The neutral can discuss which process may be suitable, whether the whole dispute or only a particular issue should be referred, and whether ADR should run in parallel with the UPC proceedings or while the litigation is stayed. For example, in a SEP/FRAND dispute, the parties could carve out the question of patent essentiality for expert determination at the PMAC and then return to the litigation track.

ip fray: Have you already seen parties use that route in practice?

Aleš Zalar: Yes. We already have a recent FRAND case that followed this route. The dispute was pending before a UPC local division, the parties requested an ADR information session, and after that session they decided to proceed to mediation at the PMAC. That mediation is now ongoing.

ip fray: Is that what you mean when you describe the UPC and the PMAC as a “multi-door courthouse”?