Crossfertilizing ISDS with TRIPS
40 Pages Posted: 23 Aug 2017 Last revised: 5 Mar 2018
Date Written: August 17, 2017
In the past few years, investor-state dispute settlement (ISDS) has garnered considerable scholarly, policy and media attention. Such attention can be partly attributed to the negotiation of the Trans-Pacific Partnership and the Transatlantic Trade and Investment Partnership (TTIP). It can also be attributed the growing use of ISDS to address international disputes involving intellectual property investments. Recent examples include Philip Morris’s now-failed attempts to challenge the tobacco control measures in Australia and Uruguay and Eli Lilly's equally unsuccessful effort to invalidate the patentability requirements in Canada.
Written for a symposium on investor-state arbitration, this article focuses on the growing use of ISDS in the intellectual property area and explores what reforms can be undertaken to improve this mechanism. It begins by highlighting the substantive problems posed by ISDS in this area. It further examines the mechanism's deleterious impact on the multilateral intellectual property system built upon the TRIPS Agreement. This article then calls for greater crossfertilization between ISDS and the WTO system. Specifically, it advances a two-tier proposal calling for institutional reforms concerning arbitral panels while advocating the establishment of a new ISDS appellate body. This proposal draws on both the European Union's proposal for the TTIP investment chapter and the existing WTO dispute settlement process. This article concludes by assessing the strengths and limitations of this proposal and offers some preliminary responses to its critics.
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