Intellectual Property Rights as Protected Investments: How Open Are the Gates?

Cambridge Centre for Environment, Energy and Natural Resource Governance (C-EENRG) Working Paper, July 2015

33 Pages Posted: 26 Jul 2015

See all articles by Carlos M. Correa

Carlos M. Correa

University of Buenos Aires (UBA) - Faculty of Social Sciences

Jorge E. Vinuales

University of Cambridge

Date Written: July 8, 2015

Abstract

The protection afforded to different legally-defined objects may overlap when different regimes apply to the same object. This article focuses on the overlap of two protective regimes, intellectual property rights (IPRs) and international investment agreements (IIAs), as applied to certain intangible objects, such as an invention, a distinctive mark or the expression of an artistic work. More specifically, we analyse the interactions between the different regulatory layers and provisions that govern the possibility of bringing IPRs under the protection of IIAs. After some general remarks on the references to IPRs in investment agreements (II), we focus on three main understandings of such interactions (III), namely delegation (by an investment agreement to domestic law), autonomy (of the definition of IPRs in investment agreements), and articulation (of all the relevant regulatory layers to circumscribe the scope of the legally-protected object). In a final section, we draw some conclusions with a view to guide current and future practice (IV).

Keywords: intellectual property rights, investment arbitration, investment law, Eli Lilly v. Canada, Philipp Morris v. Australia, Philipp Morris v. Uruguay

Suggested Citation

Correa, Carlos M. and Vinuales, Jorge E., Intellectual Property Rights as Protected Investments: How Open Are the Gates? (July 8, 2015). Cambridge Centre for Environment, Energy and Natural Resource Governance (C-EENRG) Working Paper, July 2015, Available at SSRN: https://ssrn.com/abstract=2628405 or http://dx.doi.org/10.2139/ssrn.2628405

Carlos M. Correa

University of Buenos Aires (UBA) - Faculty of Social Sciences ( email )

Marcelo T. de Alvear Marcelo T. de Alvear 2230
Buenos Aires, C1122AAJ
Argentina

Jorge E. Vinuales (Contact Author)

University of Cambridge ( email )

19 Silver Street
Cambridge
United Kingdom

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