Intellectual Property: A Beacon for Reform of Investor-State Dispute Settlement

Abstract

This Article attempts to resolve clashes between intellectual property and investor-state dispute settlement (“ISDS”). ISDS clauses contained in bilateral, plurilateral, or multilateral trade and investment agreements give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitral tribunal. This jurisgenerative right to file a claim against a state in an international tribunal with mandatory jurisdiction is exceptional; it is generally reserved to other states. Only multinational corporations can use ISDS to file claims against states in which they invest, provided the state is party to a bilateral investment treaty (“BIT”) or a trade agreement containing an investment chapter (“International Investment Agreement” or “IIA”). The ISDS case filed by the global pharmaceutical company Eli Lilly against Canada based on the invalidation by a Canadian court of two patents was the first direct major clash between IP and ISDS.