Abstract
On January 18, 2019, the European Commission submitted a proposal to the United Nations Commission on International Trade Law to establish a multilateral investment court for investor-state disputes. The European Commission’s proposal reflects growing discussions about the potential reform of the investor-state dispute settlement system. While the present work on reform options focuses on issues relating to the legitimacy of the investor-state dispute settlement system, the effects of the reform options on investor-state disputes that specifically involve intellectual property law remain to be examined.
 This Article argues that although the proposed multilateral court structure offers a comprehensive approach to addressing the concerns with the investor-state dispute settlement system, it does not address a number of issues that are specific to disputes involving intellectual property law. This Article analyzes issues that arise from the arbitral tribunal’s role in investor-state disputes that involve laws governing intellectual property at the international and domestic levels. In doing so, this Article shows that these issues are distinct from the ones that broadly relate to the legitimacy of the investor-state dispute settlement system. In light of these issues, this Article proposes additional considerations for the multilateral investment court structure. Specifically, this Article proposes including expertise in the relevant international agreements as a selection criteria for adjudicators and giving deference to the host state’s courts in disputes that involve issues of domestic intellectual property law.
Highlights
On January 18, 2019, the European Commission submitted a proposal to the United Nations Commission on International Trade Law to establish a multilateral investment court for investor-state disputes
These issues fall under three broad categories: (1) issues relating to arbitral decisions’ “lack of consistency, coherence, predictability, and correctness”; (2) issues relating to arbitrators; and (3) issues relating to the cost and duration of disputes.[52]
The 2012 U.S Model Bilateral investment treaties (BITs) states, in Article 28(10), “[i]n the event that an appellate mechanism for reviewing awards rendered by investor-State dispute settlement tribunals is developed in the future under other institutional arrangements, the Parties shall consider whether awards rendered under Article 34 should be subject to that appellate mechanism.”[115]
Summary
In 2017, at the Commission’s fiftieth session, the UNCITRAL Commission entrusted UNCITRAL Working Group III with the broad mandate to work on the possible reform of the ISDS system.[44]. The member states of Working Group III identified a number of issues with the existing ISDS system These issues fall under three broad categories: (1) issues relating to arbitral decisions’ “lack of consistency, coherence, predictability, and correctness”; (2) issues relating to arbitrators; and (3) issues relating to the cost and duration of disputes.[52] Working Group III noted that these three categories all broadly relate to the nature of ISDS as an instrument of public international law, as bilateral investment treaties are fundamentally treaties between two sovereigns.[53] The obligations that the treaties impose on states imply a balance between the need to protect investors from certain state conduct and the host state’s right to implement regulations in the interest of its citizens.[54] This Part analyzes the manner in which the issues in each of the three categories arise in investor-state disputes and the ways in which the issues are interlinked
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