Abstract
AbstractThis article analyses intellectual property (IP) disputes in investor‐state dispute settlement (ISDS) through the lenses of Third World approaches to international law (TWAIL) and how a reformist TWAIL approach might be used to address the concerns related to IP‐ISDS disputes. It has three objectives. First, to discuss TWAIL and its readings of IP. Using the TWAIL framework, the article illustrates TWAILers’ positions on the Agreement on Trade‐Related Aspects of Intellectual Property (TRIPS) are an ideologist project that aims to transplant IP norms to developing countries and the role of actors, particularly industrialist lobbying in the making of international IP norms. Despite such views, the compromise that was made in the form of TRIPS’ flexibilities being threatened by ISDS mechanisms. Thus, the second objective of this article is to demonstrate the implications that recent IP‐related ISDS disputes could potentially undermine the balance achieved through TRIPS. The last objective is to demonstrate how the Global South is regaining its sovereign regulatory control through a reformist approach.
Highlights
Before the wave of intellectual property (IP) disputes in investor‐state dispute settlement (ISDS)[1] emerged, three learned scholars foresaw the coming changes in international IP through the realm of investment protection
This article analyses intellectual property (IP) disputes in investor‐state dispute settlement (ISDS) through the lenses of Third World approaches to international law (TWAIL) and how a reformist TWAIL approach might be used to address the concerns related to IP‐ISDS disputes
Using the TWAIL framework, the article illustrates TWAILers’ positions on the Agreement on Trade‐Related Aspects of Intellectual Property (TRIPS) are an ideologist project that aims to transplant IP norms to developing countries and the role of actors, industrialist lobbying in the making of international IP norms
Summary
Before the wave of intellectual property (IP) disputes in investor‐state dispute settlement (ISDS)[1] emerged, three learned scholars foresaw the coming changes in international IP through the realm of investment protection. Despite the few cases on IP‐related ISDS disputes, the Philip Morris and Eli Lilly cases created a vulnerability in the TRIPS flexibilities and challenges under the ISDS This is worrisome, because there are common views on using TRIPS flexibilities to safeguard public interest aspects of IPRs.[75] Investors have used ISDS as a tool to threaten host states to bring about changes in domestic laws to fulfil their interests. The Model BIT ensures submission before the national courts as a precondition to submission of claims to arbitration.[115] it obliges a tribunal to consider domestic courts’ decisions concerning the issue of expropriation claims.[116] These approaches are timely and relevant if they are curated better and would likely become a benchmark for future investment agreements and likely to safeguard national court's decision on IPRs. Essentially, the gate to ISDS is establishing that the disputes in question arise from investment. Even though the approach discussed here has not been adopted, it is worth discussing at the policy level
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