Originally from Investment Treaty Arbitration and International Law - Volume 11

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“Philip Morris versus Uruguay and Apotex versus United States were two cases involving IP rights that were recently dismissed.  Both cases, however, serve as quintessential disputes involving protection of IP rights (trademarks in the former case and patents in the latter).  Our authors, therefore, will examine the nature and level of reparation that the investors in those cases could claim under applicable principles of international law, if they had prevailed. The first author, in line with what the counsel for investors would likely argue, will provide an expansive view of applicable principles of international law including restitutio in integrum, taking into account the nature of the intellectual property rights at issue, in order to ensure the highest level of recovery. The second author would take a contrary position.”

DR. SABAHI: All right. So, thank you, everyone, to be with us for this last panel of the day. This is Panel 4, Remedies in IP Investment Arbitration. It has been a long day. You have heard all the commentaries on jurisdiction, liability, about policy issues and right now is about the most important topic of all, remedies!

We have an excellent panel here, and I’m going to introduce briefly our moderator, Teddy Baldwin.  Teddy has been a faithful supporter of Juris conferences for years, and he’s a partner at Baker & Mackenzie with several years of experience in international investment arbitration and commercial arbitration.  He has also experience in litigating in U.S. courts a variety issues of sovereign immunity matters, enforcement of arbitral awards and so forth.  Without further ado, Teddy, please.

MR. BALDWIN: Well, thank you, Borzu, for that kind introduction. Those of you who were here last year might remember Borzu and I were on a panel together, and Borzu did the typical disclaimer stating that his comments were not reflective of Curtis Mallet or even himself, I guess. And I made a comment that none of those disclaimers mattered because I would still use those comments against him if I ever had the chance.

Unfortunately, I haven’t had that chance yet, but I think it’s coming.

I’m very happy to be here, and thanks again to everyone who worked so hard to put this on, Juris and the organizers.  It’s one of my favorite events because you get to see the young authors as we have here, take positions that are often provocative, positions that are interesting, and I think our authors have done that again for this panel. I do recommend you read the papers because I think they add to the discussion of this issue.