This paper examines the intricate interplay between domestic law concepts and international investment law through the lens of intellectual property (IP). In the realm of international investment, where treaties often rely on domestic law concepts, such as property, to define and protect investor rights, the proper interpretation of these concepts becomes paramount.
This paper argues that, unless explicitly stated otherwise, international treaties referencing domestic law concepts must be applied by renvoi to the relevant domestic law. Making this point, the case of Philip Morris v Uruguay, is presented as a compelling illustration of the challenges and complexities inherent in interpreting domestic law concepts (in this case trademarks) within the context of international investment law. The case analysis delves into the intricacies of jurisdiction, emphasizing that intellectual property rights (IPRs) and other investments do not exist independently of domestic legal frameworks.
This paper hence argues that IPRs are intrinsically tied to domestic legal orders and emphasizes that domestic courts, not international investment tribunals, hold jurisdiction over the granting, revocation, and limitation of IPRs. I underscore the significance of maintaining respect for the diversity of national legal systems and their policy objectives in the interpretation of domestic law concepts. In conclusion, the study advocates for caution in avoiding the development of an international law of property through the actions of international investment tribunals and calls for a consistent approach to referencing domestic law concepts in international investment arbitration.