Originally from Investment Treaty Arbitration and International Law - Volume 11

Preview Page

What international investment law standards protect IP? Should States be held liable for breach of BIT protections? Our first author argues for a narrow application of treaty standards, such as “Fair and Equitable Treatment” and “Full protection and security.” 

Prologue

Despite the efforts of the world’s most developed countries to internationalize “IP rights,” many national governments have resisted this trend. This is because each national government has struck a different balance between competing public interests. Some governments seek to encourage greater innovation through the granting of strong IP rights (such as exclusivity in creation, use, or distribution). Other governments wish to make it easier for society and the market to benefit freely from innovation, without the barriers created by strong IP rights to unobstructed creation, reproduction, or use. Because different countries desire different outcomes in balancing these competing public interests, IP protections vary deeply between different nations, which has made it difficult to define (let alone enforce) international IP obligations.

International IP conventions have attempted to establish international IP norms and obligations accepted by a plurality (if not majority) of States.  These conventions are plentiful in number, such as the Agreement on Trade-Related Aspects of Intellectual Property (the “TRIPS Agreement”), the Berne Convention for the Protection of Literary and Artistic Works (“Berne Convention”), Patent Cooperation Treaty (PCT), regional IP treaties, and chapters of free-trade agreements such as the NAFTA. Despite their number and some commonalities between them, the obligations found in international IP conventions may not be immediately binding on signatory states, and in most instances, each State may—as a matter of domestic law—decide on the manner and degree to which it wishes incorporate international IP obligations into its own law.  And because of the difficulty of determining the scope and enforceability of international IP obligations in specific cases, aggrieved foreign investors seeking to enforce a State’s apparent obligations under international IP conventions usually must look outside of the dispute resolution provisions of such treaties, which are typically limited to settlement among States (and not between private parties and States).