Human Rights and IP in Investor to State Dispute Settlement

Abstract

As the few existing intellectual property (IP) related investment arbitration awards demonstrate, human rights issues such as protection of public health might appear in such contexts, making IP-related investment disputes prone to human rights argumentation. The chapter focuses on the overlap of human rights, IP and IIAs. It evaluates the impact human rights have had on the relevant ISDS practices. The main emphasis is on the reasons for the increasing overlaps and the ways in which investment tribunals should approach them. The chapter rejects human rights proportionality as the proposed solution to increase the legitimacy of investment treaty arbitration. Through proportionality, courts seek to define an appropriate relationship between different conflicting interests at hand, each entitled to legal protection. Instead of suggesting a broad integration of human rights law under the investment tribunals’ operational sources of law, the chapter posits that a more legitimate way forward – pending more profound reform of the whole investment arbitration system – would be to decrease the overlaps through IIA design and to develop deference as an approach in ISDS, especially through the doctrine of margin of appreciation. The problem is not too little human rights in ISDS but too extensively applied and interpreted investment treaty standards, encroaching on host states’ regulatory powers and ability to protect and fulfil human rights obligations.