Protecting Intellectual Property under BITs, FTAs, and TRIPS: Conflicting Regimes or Mutual Coherence?
EVOLUTION IN INVESTMENT TREATY LAW AND ARBITRATION, pp. 485-515, K. Miles, C. Brown, eds., Cambridge University Press, 2011
35 Pages Posted: 28 Mar 2011 Last revised: 3 Jan 2015
Date Written: February 7, 2011
Policy Makers, commentators and scholars increasingly realise the impact (international) intellectual property (IP) protection has beyond incentivising investment in innovation and creativity. IP also touches upon areas of general societal concern such as public health, access to information, the environment, climate change and food security. At a recent WIPO conference on such linkages, the WTO Director General Pascal Lamy acknowledged that "the international intellectual property system cannot operate in isolation from broader public policy questions such as how to meet human needs as basic health, food and a clean environment.“
In the most relevant multilateral agreement on IP, the WTO/TRIPS Agreement, several provisions have been identified as providing WTO Members, in particular developing countries, flexibility and policy space to address such public interests. In 2001, WTO Members emphasised several of these flexibilities in the Doha Declaration on TRIPS and Public Health.
This paper examines policy space under TRIPS in relation to IP protection flowing from free trade agreements (FTAs) and bilateral investment treaties (BITs). Focussing on public health, the scope of IP protection under these regimes and its impact on TRIPS flexibilities is scrutinised. FTAs often contain substantive obligations on additional IP protection as well as investment chapters covering IP. How do these systems relate to another and to which extent can they undermine policy space flowing from the multilateral system to address public interests concerns? Also under BITs, IP is generally covered as protected investment. Here, standards like fair and equitable treatment, full protection and security and the prohibition of expropriation raise questions of compatibility with the multilateral IP protection regime and its exceptions. Do BITs contain any safeguards for the regulatory sovereignty of the host country to sufficiently accommodate the flexibilities WTO Members enjoy to regulate for example access to medicines? This paper aims not only to compare the substantive scope of protection for IP under TRIPS, FTAs and BITs. It further tries to develop guidance to address cases of norm conflict and how to achieve coherence between the distinct regimes of IP protection within international law.
Keywords: Investment, intellectual property, BITs, FTAs, TRIPS flexibilities
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