When Is Intellectual Property Not an Investment? Imposing Traditional Jurisdictional Limitations on Non-Traditional Intellectual Property Rights - Chapter 1 - Investment Treaty Arbitration and International Law - Volume 11
The past decade has seen an increase in the negotiation of regional international investment agreements (“IIAs”), as various countries compete to set the gold standard for 21st century trade relations. Many of the new regional IIAs cover vast portions of the global population and global economy, earning them the moniker of “mega-regional” agreements. These mega-regional agreements include competing regional treaties in the Asian Pacific region negotiated by the U.S. and China; European Union efforts to replace individual members’ trade agreements with third countries with EU-negotiated agreements; and a systematic move by the Association of South-East Asian Nations (“ASEAN”) to negotiate regional IIAs with its main trading partners. Simultaneously, several nations have made concerted efforts to modernize their bilateral treaty regimes.
These new generation IIAs take an innovative attitude towards a number of issues, including notably intellectual property rights (“IPRs”). Many of the mega-regional IIAs, and some of the new generation bilateral investment treaties (“BITs”), recognize that technological, scientific and industrial innovation have led to new forms of IPRs. In light of these developments, the state parties to these IIAs have expanded the definition of investment to ostensibly include modern, non-traditional categories of intellectual property rights, relating to web coding, biological innovations and the like.