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
23 Pages Posted: 1 Sep 2013 Last revised: 24 Apr 2018
Date Written: November 27, 2012
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: Suggested Citation