Abstract

http://ssrn.com/abstract=2443369
 


 



Trips-Plus Trade and Investment Agreements: Why More May Be Less for Economic Development


Christine Haight Farley


American University - Washington College of Law

May 29, 2014

University of Pennsylvania Journal of International Law, Vol. 35, No. 101, 2014
American University, WCL Research Paper 2014-22

Abstract:     
Conventional wisdom -- but not empirical research -- maintains that strong intellectual property (“IP”) rights trigger not only foreign direct investment, but also local innovation. Thus investors seek, and developing countries compete to offer, the highest levels of IP protections. But evaluating the level of IP protection in any given country has become increasingly complex. A proliferation of bilateral agreements, such as free trade agreements (“FTAs”) and bilateral investment treaties (“BITs”), intended to enhance the minimum standards set forth in The Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), have created uncertainty about precisely what IP protections are available. Chile, for instance, is party to over one hundred IP agreements. By successively increasing the quantity and complexity of IP standards make a host state’s legal framework unknowable and thus highly unpredictable. Moreover, BITs permit investors to claim the “indirect expropriation” of their IP due to unsatisfactory IP protection. Investment arbitrators must then evaluate domestic laws for how they define the availability, validity, and scope of IP rights -- difficult substantive questions of IP law likely beyond the competence of investment tribunals. Such uncertainty over legal rights is never conducive to investment.

Number of Pages in PDF File: 13

Keywords: intellectual property, IP, trade, TRIPS, FTAs, BITs, investment, expropriation, trademark, developing economy

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Date posted: May 31, 2014 ; Last revised: June 13, 2014

Suggested Citation

Farley, Christine Haight, Trips-Plus Trade and Investment Agreements: Why More May Be Less for Economic Development (May 29, 2014). University of Pennsylvania Journal of International Law, Vol. 35, No. 101, 2014; American University, WCL Research Paper 2014-22. Available at SSRN: http://ssrn.com/abstract=2443369

Contact Information

Christine Haight Farley (Contact Author)
American University - Washington College of Law ( email )
4801 Massachusetts Avenue N.W.
Washington, DC 20016
United States
202-274-4171 (Phone)
202-274-0830 (Fax)
HOME PAGE: http://wcl.american.edu/fac/farley
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