Awakening the Sleeping Giant: Intellectual Property Rights in International Investment Agreements

(2012) 15(3) Journal of International Economic Law 871-915

45 Pages Posted: 31 Jan 2013

See all articles by Bryan Christopher Mercurio

Bryan Christopher Mercurio

Chinese University of Hong Kong - Faculty of Law; University of New South Wales - Faculty of Law

Date Written: January 30, 2013

Abstract

This article explores the complex issues relating to the inclusion of intellectual property rights (IPRs) as an ‘investment’ in international investment agreements (IIAs). The potential impact of IPRs in IIAs on the regulatory sovereignty of a nation has for some time been underappreciated and undervalued in both practice and the academic literature. The issue became topical, and controversial, when cigarette manufacturer Philip Morris relied on IIAs to challenge IP-related tobacco regulations in Uruguay and Australia, but there persists a general lack of understanding of how IPRs are included in IIAs and the extent to which an IPR owner can rely on an IIA to enforce its rights. This article seeks to fill the gap by adding to existing knowledge of the inclusion and significance of IPRs in IIAs. More specifically, the article first reviews how IPRs qualify as a covered ‘investment’ in IIAs before introducing and analysing the relevance of some of the more significant clauses frequently appearing in IIAs. While extensive illustrative reference is made to the claims against both Uruguay and Australia the article does not purport to fully analyse either of those two ongoing disputes.

Keywords: international investment law, international trade law, bilateral investment treaties, TRIPS Agreement, WTO Law, tobacco, plain packaging

JEL Classification: I18, I28, K23, K32, K33

Suggested Citation

Mercurio, Bryan Christopher, Awakening the Sleeping Giant: Intellectual Property Rights in International Investment Agreements (January 30, 2013). (2012) 15(3) Journal of International Economic Law 871-915. Available at SSRN: https://ssrn.com/abstract=2209551

Bryan Christopher Mercurio (Contact Author)

Chinese University of Hong Kong - Faculty of Law ( email )

6/F Western Teaching Complex
Shatin, New Territories
Hong Kong
(852) 2696 1139 (Phone)

University of New South Wales - Faculty of Law

Kensington, New South Wales 2052
Australia

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