Intellectual property (IP) interacts with different branches of law, in doing so, in some cases have threatened the objectives and balance achieved through the international IP. One such case is the interaction between IP and international investment law through investor-state dispute settlement (ISDS). This is because IP grows every day and reaches into every nook and cranny of our lives. IP does not operate in the same way as it did in the early 1990s,or even before this, when it featured in the 1947 General Agreement on Tariffs and Trade (GATT 1947). This may be due to the expansion of international law: the relationship between IP and other branches of law seems to have welded together to form part of the regulatory system and included in trade, and investment agreements.
1995 saw a watershed moment in which trade liberalisation and a non-trade agenda gave rise to the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS), which commodified IP as ‘tradable’ goods, and further, through TRIPS Plus agreements in the form of IP chapters that has created new norms beyond the minimum protection achieved through international IP agreements. Subsequent rise of international trade and investment agreements (IIAs) consisting of IP chapter along with dispute settlement provision received greater attention when multinational companies demonstrated their corporate power through litigating IP in ISDS, an ad hoc investment tribunal governed by the international center for settlement of investment disputes (ICSID). In three high profile disputes; Philip Morris v. Uruguay (ICSID Case No: ARB/10/7), Eli Lilly v. Canada(UNCITRAL, ICSID Case No. UNCT/14/2) and Bridgestone v. Panama, (ICSID Case No. ARB/16/34) IPRs has been sought to be protected through international investment law and treaties, generating visible debate and discussion. The arbitral tribunals has decided in favor of state in two high profile disputes, but the tension that emerges out of IP and ISDS remains and has not been explored fully.
The project aims to unbundle the relationship between IP and investment agreements through recent disputes where IP rights has been litigated in investment arbitration and analyze the issues arising out of those disputes through the lenses of national and international legal order and offer normative analysis to resolve the tension brought by IP and ISDS interaction. The analysis achieved in this project can have a significant impact on approaches of treaty-making to safeguard IP objectives in IIAs, responding to the threat that investment arbitration may possess. In so doing, the analysis does not only confine on IP regime, but rather takes a pragmatic approach in terms of substantial analysis by exploring trade regime, investment law, and arbitration to address key challenges arising out of IP-ISDS interaction.
