Regulatory and policy issues arising from intellectual property and Investor-State Dispute Settlement in the EU: a closer look at the TTIP and CETA

Abstract

For the European Union (EU), the dynamics of signing bilateral trade and investment agreements with third countries is steadily going forward. Good examples of such agreements are the controversial “Comprehensive Economic and Trade Agreement” (“CETA”) between Canada and the EU and, the Transatlantic Trade and Investment Partnership (“TTIP”) that has been negotiated between the European Union and the United States since 2013. The CETA and TTIP agreements have given rise to concerns in European public opinion, particularly due to the secret nature of the discussions surrounding the negotiation process. Both agreements contain provisions dedicated to intellectual property rights but their principal characteristic lies in the inclusion of intellectual property rights in the list of investments protected by a specific section of the agreement. If implemented, the enforcement of this protection would be entrusted to arbitration tribunals or to a special court for the protection of investments that is yet to be set up. Hence the question arises whether the regulation of intellectual property by the European Union or one of its Member States, in a way that would affect the scope of the intellectual property rights held by certain large private companies, could be considered as a potential threat to their investments. If this was the case, proceedings could be brought against the EU or one of its Member States, leading to the risk of considerable limitations being imposed on legislators in the necessary implementation of a balanced and effective intellectual property law in Europe.