The TTIP and its Investment Protection: Will the EU Still be Able to Regulate Intellectual Property?

Abstract

The Transatlantic Trade and Investment Partnership (TTIP) is a bilateral trade agreement that is currently being negotiated between the European Union and the United States. One of its principal characteristic consists in the inclusion of intellectual property rights under the investments protected by a specific section of the agreement, the implementation of which would be the responsibility of arbitration tribunals or a special jurisdiction for investment protection still to be created. Hence, this article explores the crucial question whether a regulation of intellectual property by the European Union or one of its Member States, which would affect the scope of intellectual property rights held by private companies, could be considered as a potential infringement of their protected investments and accordingly lead to proceedings being lodged against the European Union or one of its Member States. This would considerably limit the future room to manoeuvre of the European institutions and their power to regulate in order to implement a balanced and effective legislative framework for intellectual property, at a time when the creation of an efficient ecosystem for innovation is more than urgently needed in the European Union.