Protecting Intellectual Property through Trade and Investment Agreements: Concepts, Norm-setting, and Dispute Settlement

Abstract

This paper attempts to offer a birds-eye, comparative view on two different expansionist tendencies in international IP law and policy. Looking at IP protection via IP chapters in FTAs on the one hand and by means of international investment law on the other, we can observe a common trend towards occupying additional regulatory space – albeit through different routes. The paper reviews these trends from a conceptual perspective, and by comparing norm-setting and dispute settlement in the respective areas. It finds that at a meta level, the traditional form of regulating IP in international treaties expands in form of ever-more detailed and comprehensive commitments which contracting states then have to implement (or perhaps better: import) in(to) their domestic IP laws. Since these expansions concern the traditional domain of IP laws as mechanisms that regulate private law relations, they are conceptually different from investment law as a tool primarily designed to protect against state interferences. By protecting IP rights as an investment asset, international investment law makes a whole new (or perhaps better: distinct) set of commitments from another area of global norm-setting available to IP owners. From among these commitments, the principal tool for expansion is ISDS as a litigation mechanism that directly benefits IP owners once they qualify as investors. ISDS invites IP owners to engage in creative lawyering that re-packages investment protections against state interference into tools that allow IP-owners to challenge unfavourable domestic IP rules which determine the nature and scope of the private rights IP owners rely on vis-a-vis competitors and users. Overall then, the distinct routes for regime expansion show that while FTA-based IP protection grows by means of norm-setting, investment protection for IP rights is essentially enlarged through ISDS as a private dispute settlement tool with public consequences.