Intellectual property rights have always been defined as a foreign investment and are protected target under international investment treaties. Reference can be made to copyright and related rights, trademark rights, rights in geographical indications, rights in industrial designs, patent rights, rights in layout designs of integrated circuits, rights in relation to protection of undisclosed information, and plant breeders’ rights (e.g. Canada-EU Comprehensive Economic and Trade Agreement, CETA)). In recent years, the relationship between intellectual property rights and international investment law has secured growing attention given certain high-profile claims brought by foreign corporations challenging host states’ measures relating to intellectual property rights (such as patent rights and trademarks) in light of investment arbitrations. Among them, Philip Morris v. Australia, Philip Morris v. Uruguay, Eli Lilly v. Canada and Bridgestone v. Panama are notable examples. The ensuing questions to be asked might be: what impacts that the international investment treaties might have on host states’ intellectual property policy? To what extent intellectual property rights can be protected under international investment treaties? These questions are new and important for the interface between intellectual property and investment law regime. As challenging intellectual property measures under investment arbitration may involve other public policies, such as the consumption of tobacco products or the use of pharmaceutical products, which may complicate the issues surrounding intellectual property, investment law and public health.
This semester, we will focus on the interface between intellectual property protection and international investment law. Along with relevant obligations under international investment treaties (such as non-discrimination, fair and equitable treatment, full protection and security, expropriation and performance requirement), intellectual property-related claims and points would be discussed. In relevant parts, investment disputes involving intellectual property rights would also be reviewed.
Tentative topics to be discussed are as follows.
1. Background on international investment treaties and intellectual property rights
2. Investor-state arbitration and review of new intellectual property-related investment cases
3. Intellectual property rights as “investment”: Conceptualizing intellectual property rights and investment protection
4. Relative treatment standard: IP-related national treatment claims
5. Relative treatment standard: IP-related most favorued nation (MFN) claims
6. Absolute standards of treatment: fair and equitable treatment, full protection and security
7. Applying the Expropriation standards to IP-based investments
8. Intellectual property and investment performance
9. Public policy considerations in intellectual property-related investment arbitration
10. Investor-state dispute settlement and intellectual property: lessons from Lilly v. Canada
11. WTO TRIPS Agreement and investment arbitration