The Object and Purpose of Mingling Intellectual Property, Trade and Investment

Forthcoming, Christophe Geiger (ed), “Research Handbook on Intellectual Property and Investment Law”, Cheltenham (UK)/Northampton, MA (USA), Edward Elgar Publishing, 2019

16 Pages Posted: 23 Oct 2019

See all articles by Susy Frankel

Susy Frankel

Victoria University of Wellington

Date Written: April 18, 2019

Abstract

This chapter analyses how investment agreements that purport to include intellectual property (IP) in their scope should be interpreted. The internationally agreed rules of treaty interpretation found in the Vienna Convention require that the object and purpose of a treaty inform its interpretation. When IP is part of an investment treaty then both the object and purpose of investment and of the relevant IP at issue should be part of the interpretative exercise. The chapter examines how the mingling of IP and investment ought to impact the interpretation of object and purpose in light of the scope of intellectual property, intellectual property related investment obligations and the complexities of the relevant international regimes. With reference to recent high-profile disputes, it proposes how the Vienna Convention rules of interpretation can be used effectively to recognise, in consistent ways, the object and purpose of international intellectual property law in its different contexts.

Keywords: Vienna Convention (VCLT), ‘object and purpose’ of intellectual property (IP), Dispute Settlement Understanding (DSU), World Trade Organization (WTO), investor-state dispute settlement (ISDS), interpretative techniques

Suggested Citation

Frankel, Susy R., The Object and Purpose of Mingling Intellectual Property, Trade and Investment (April 18, 2019). Forthcoming, Christophe Geiger (ed), “Research Handbook on Intellectual Property and Investment Law”, Cheltenham (UK)/Northampton, MA (USA), Edward Elgar Publishing, 2019, Available at SSRN: https://ssrn.com/abstract=3469303 or http://dx.doi.org/10.2139/ssrn.3469303

Susy R. Frankel (Contact Author)

Victoria University of Wellington ( email )

PO Box 600
Wellington, 6140
New Zealand

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