Abstract
This article analyses the role of national and international intellectual property (IP) law in assessing IP as a protected investment. It offers two approaches for controlling investment arbitration related to intellectual property rights (IPRs), followed by an examination of the implications and challenges of those approaches. Its main argument is that even if a dispute arises from an investment (IP as an investment), it does not necessarily fall under the jurisdictional requirements of investment arbitration. Rather, assessing IP as an investment must be done by referring to national laws. This is more relevant in the case of IPRs as they are territorial. This means that rights and obligations are derived from national IP legislation. Essentially, only those IPRs that are “protected” by national regimes should be treated as investments. This article also examines the language used in investment agreements and arbitral awards to analyse the role of national law, particularly in determining the validity and scope of IP investments. Then it examines three IP-related arbitral cases to discuss how arbitral tribunals have used national law. Finally, it suggests approaches for controlling investment arbitration by integrating the territoriality principle and the social objectives and bargains achieved through international IP treaties.
Highlights
What is the relationship between intellectual property rights (IPRs) and investorstate dispute settlement (ISDS),1 an ad hoc dispute settlement governed by the International Center for Settlement of Investment Disputes (ICSID) Convention?2This issue has received attention due to a few high-profile cases where IPRs have been sought to be protected through investment law and treaties.3 In those cases, the arbitral tribunals decided in favour of states, but the investors’ arguments have led to a fierce debate
It examines three IP-related arbitral cases to discuss how arbitral tribunals have used national law. It suggests approaches for controlling investment arbitration by integrating the territoriality principle and the social objectives and bargains achieved through international IP treaties
The direct or indirect reference to national law in the definition of investment or the contents of IPRs defined under the definition of investment is immaterial since arbitral tribunals have confirmed that the legality of an investment is based on national law
Summary
What is the relationship between intellectual property rights (IPRs) and investorstate dispute settlement (ISDS), an ad hoc dispute settlement governed by the International Center for Settlement of Investment Disputes (ICSID) Convention?2. The argument made in this article is confined to the role that national and international IP would play in reconceptualising investment in the definition of investment before the assessment is made based on the Salini test. Before assessing IP as an investment based on the Salini test, this must be done by referring to national laws This is more relevant in the case of IPRs, as they are territorial. In light of a few IP-related ISDS cases, this article aims to address two concerns It examines the arbitral tribunals’ recognition of national laws in jurisdictional assessments. Determining the legality and scope of IP investment This is achieved by analysis of the language used in several IIAs and the reading by arbitral tribunals of such language in confirming the role of national laws. The last part (Sects. 5 and 6) examines the recent IIAs and offers two approaches for controlling investment arbitration related to IPRs, followed by an examination of the implications and challenges of those approaches
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