Investigator:
Gabriel M. Lentner

Abstract:
Recently, more and more IP-related disputes are being brought before investment tribunals. This project addresses the understudied issue of the relationship between IP and Investment chapters in Free Trade and Investment Agreements (FTAs), such as the recently concluded CETA, CPTPP, and others. The problem arises because IP is usually dealt with in separate chapters in those agreements or within the WTO that provide for exclusive jurisdiction over the regulation and enforcement of IP and thus arguably also cover all IP-related disputes. However, investment tribunals have so far not taken those legal regimes into account and have assumed jurisdiction over IP disputes under the investment chapter in the cases of Eli Lilly v Canada, Philip Morris v Uruguay, and most recently in Bridgestone v Panama. Another IP-related case centered around copyrights in data is pending.

The project seeks to study the tribunals’ practice in those cases that involve the legal interplay between two distinct regulatory frameworks. As case studies, I will discuss the recent decisions in these cases, where the applicable treaty also included an IP chapter. I then turn to the recently concluded FTAs to analyze the relationship between their respective IP and investment chapters regarding the jurisdiction for IP-related disputes.

Through the lens of a transatlantic law and political economy (LPE) approach of investor-state arbitration, I seek to analyze whether the assumption of jurisdiction in IP-related disputes by investment tribunals may subtly constrain and distort how states organize their intellectual property law and whether there is a risk that this results in a system that produces inefficiency, unfairness and distributional inequities.