Our guest today is Esther van Zimmeren, Associate professor in Intellectual Property Law & Governance at the Faculty of Law of the University of Antwerp and coordinator of the Centre of Excellence GOVTRUST. The connection between trust and the legal profession is not a simple one. In legal literature, the concept of trust typically pertains to confidence in (legal) institutions, such as courts, judges, or “the legal system.” Legitimacy is often used as a synonym for trust, despite its unclear relationship with trust in broader literature from other disciplines. The terms trust, rule of law, and legitimacy are used interchangeably without specifying their drivers or consequences, leading to a lack of clarity in their practical implications.
Esther discusses the challenges of creating trust in contractual arrangements, particularly in complex IP licensing and patent pool agreements. They explore the balance between creating clarity and legal certainty while leaving room for innovation and open communication to build trust. She suggests that clear milestones can be imposed at the beginning of the contract, but renegotiation and mediation can be used when more space is needed. The use of alternative dispute resolution, such as mediation, can help to maintain good long-term relationships and build trust. She highlights the importance of considering the context in determining the effectiveness of rules and contracts. They suggest that differences in outcomes may be related to variations in empirical research and theoretical work, as well as factors such as the type of collaboration, contract, actors involved, and geographical scope.
Esther van Zimmeren believes that legitimacy, fairness, and procedural justice are important considerations for trust in an organization or institution, especially in a regulatory governance context. She talks about the Unified Patent Court in Europe, which has promising rules for fairness and impartiality but faces challenges in terms of the independence of its technically qualified judges who work part-time for patent firms. She emphasizes the need to look at specific examples rather than general concepts when discussing trust in the legal system.