Intellectual Property Rights in International Investment Agreements: Striving for Coherence in National and International Law

C.L. Lim & Bryan Mercurio (eds), International Economic Law After the Crisis: A Tale of Fragmented Disciplines (Cambridge University Press, 2015) 380-405

U of Melbourne Legal Studies Research Paper No. 675

23 Pages Posted: 1 Sep 2013 Last revised: 24 Apr 2018

See all articles by Tania Voon

Tania Voon

University of Melbourne - Law School

Andrew D. Mitchell

University of Melbourne - Law School

James Munro

University of Melbourne - Melbourne Law School

Date Written: November 27, 2012

Abstract

Intellectual property is routinely regulated by international investment agreements (‘IIAs’) as a protected class of investment. However, it has only emerged as a subject of investment claims in recent years and in relatively few niche cases, and as such the relationship between intellectual property and international investment law remains largely unexplored. This chapter sheds light on that relationship, revealing both uncertainty and fragmentation, as well as deliberate attempts at constructively integrating intellectual property regulation and international investment law. It primarily examines three substantive investment obligations in connection with intellectual property: most-favoured-nation obligations, expropriation, and so-called ‘umbrella clauses’. Through this analysis, complex and unsettled questions are discussed, such as the role of municipal law in determining the contours of intellectual property rights protected by IIAs, and the ability of umbrella clauses to de facto incorporate intellectual property obligations into IIAs from other treaties. By applying the analysis to the most significant ongoing investment claim relating to intellectual property — the Philip Morris plain-packaging dispute — this chapter demonstrates the practical significance of bringing clarity and enhanced certainty to the relationship between IIAs and intellectual property.

Keywords: intellectual property, international investment agreements, investment law, investment, most favoured-nation-treatment, MFN, expropriation, umbrella clauses

JEL Classification: K33

Suggested Citation

Voon, Tania and Mitchell, Andrew D. and Munro, James, Intellectual Property Rights in International Investment Agreements: Striving for Coherence in National and International Law (November 27, 2012). C.L. Lim & Bryan Mercurio (eds), International Economic Law After the Crisis: A Tale of Fragmented Disciplines (Cambridge University Press, 2015) 380-405; U of Melbourne Legal Studies Research Paper No. 675. Available at SSRN: https://ssrn.com/abstract=2318955

Tania Voon

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

James Munro

University of Melbourne - Melbourne Law School ( email )

University Square
185 Pelham Street, Carlton
Melbourne, Victoria 3010
Australia

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