Implications of Investor-State Arbitration of IPR as an Investment From a Developing Countries Perspective

Abstract

The article examines investment-related aspect of Intellectual Property Rights, especially from the perspective of dispute resolution process using the ISDS mechanism. The popularity in extrapolating arbitration of Investment dispute to IPR disputes, compels us to establish the grounds on which IPR is considered to be an “investment” from an investment law perspective. By articulating the various obligations of State and Investors in an Investment Treaty. The paper will evaluate if the same principle obligations are workable for an investment, that would pertain to any right arising from an IPR. It further outlines, how the obligations parlays in an investment arbitration from a developing countries perspective; given that various obligations of National Treatment, Non-Discrimination etc. are very differently observed with respect to developing countries. The paper will analyze using various case laws, to see the impact of having IPR as an “investment” and the scope available for improving the arbitrability of IPR by adopting various TRIPS provisions into the investment treaties. Especially, with the intent of protecting the fragile economy of developing countries