Intellectual Property, Foreign Investment and Sustainable Development

Abstract

In December 2015, the United Nations adopted the 2030 Agenda for Sustainable Development, which sought to achieve development for the next fifteen years and featured seventeen Sustainable Development Goals (SDGs) and 169 targets. This agenda was adopted following the completion of the U.N. cycle for the Millennium Development Goals, which were launched in September 2000.

Although the SDGs do not explicitly mention intellectual property law and policy except in relation to the promotion of public health, commentators have widely agreed that a number of these goals have implicated such law and policy. Like intellectual property, investment protection also does not fall squarely within the SDGs. It will therefore be interesting to explore how investment promotion regimes, including those protecting foreign intellectual property investments, will affect a host state's ability to promote and fulfil the SDGs.

Focusing on issues lying at the intersection of intellectual property rights, investment promotion regimes and the SDGs, this chapter begins by reviewing the ambiguous causal relationships between intellectual property, foreign direct investment and technology transfer. The chapter then discusses the protection of foreign intellectual property investments through international investment agreements, which are broadly defined to cover investment chapters in international trade agreements. Specifically, the discussion explores the standards of protection commonly found in international investment agreements and the investor-state dispute settlement mechanism. This chapter concludes by identifying eight strategies that host states in the Global South may deploy to ensure that their investment promotion regimes, as used in the intellectual property area, can better align with the SDGs.