Originally from World Arbitration And Mediation Review (WAMR)

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INTELLECTUAL PROPERTY PROTECTION

THROUGH INTERNATIONAL INVESTMENT
AGREEMENTS:
CHALLENGES OF A DIFFERENT HORIZON OF
INVESTMENT PROTECTION
Javier Ferrero

Bilateral Investment Treaties (“BITs”) and Free Trade
Agreements (“FTAs”) containing investment chapters (“investment
agreements”) provide for a variety of protections for investors
investing in many different industries, such as oil and gas, mining,
water, energy, equity, and telecommunications. However, there is
another area of investment protection that is still evolving and
has yet to be properly explored. It deals with the protection of
intellectual property rights. These rights are included within the
definition of “investment” in a number of investment agreements
and therefore are subject to the same protections and dispute
settlement mechanisms as any other investment.
This article discusses the protection of intellectual property
rights pursuant to investment agreements. Part I provides certain
examples of “investment” definitions under BITs and FTAs, which
extend to intellectual property, and explores the specific
exceptions contained in these agreements, designed to avoid a
collision between international investment and intellectual
property protection. Part II discusses recent investment
arbitrations involving intellectual property rights, including the
Shell, Signa, and Apotex cases. Part III contains concluding remarks.

I. INTELLECTUAL PROPERTY PROTECTION THROUGH BITS AND FTAS
Intellectual property rights (“IP rights”) are considered
protected investments under several investment agreements.
Some of these treaties only mention the term “intellectual
property rights” as one of the types of protected investments,
while others provide a list of IP rights that are subject to
investment protection.