Investor-State Dispute Settlement Mechanism and Intellectual Property Matters

Abstract

<span style="font-size:9.0pt;mso-bidi-font-size: 10.0pt;font-family:" times="" new="" roman","serif";mso-fareast-font-family:"times="" roman";="" background:white;mso-ansi-language:en-gb;mso-fareast-language:en-us;mso-bidi-language:="" hi"="" lang="EN-GB">The proposed IP and Investment Chapters in the Trans-Pacific Partnership Agreement (TPP) and the recent North American Free Trade Agreement (NAFTA) investor dispute notifications by Eli Lilly against Canada has initiated the discussion concerning the impact of introducing Intellectual Property Rights (IPR) in the purview of investment chapters of trade agreements. These provisions protect the investor’s right to initiate dispute settlement proceedings against the foreign government under the international law by reasoning that the new law harms their present and future profits. However, on the other hand, it also undermines the ability of the national government to introduce domestic laws for the well being of its citizens, lest they be deemed as discriminatory by the foreign investors. In this paper, the effect of treating IP as an investment in the trade agreements and utilization of ISDS to resolve IP matters by way of analyzing the IPR cases will be examined that have been brought before the courts by the foreign investors in various countries.</span>