Several recent high-profile cases involving IP disputes have been resolved through investor-state arbitration. For example, tobacco company Philip Morris turned to investment arbitration to challenge branding restrictions and compulsory health warnings on cigarette packaging (referred to as ‘plain packaging’ legislation) in two separate cases against Australia and Uruguay. On 16 March 2017, an investment tribunal rendered, an award in the case Eli Lilly v Canada, which concerned for the first time in such disputes the invalidation of a US pharmaceutical company’s patents in Canada.

While the investors did not succeed in the above cases, commentators have suggested that the precedent these cases established have nevertheless opened the doors for more IP-related investment claims. Indeed, there is already another major case being brought by a US company against Panama arising out of a trademark dispute under an international investment agreement. Other potential cases could involve the issuance of compulsory licenses, the rejection of pharmaceutical patent applications, or state infringement of copyrights.

Due to the complexity of these cases, a high degree of uncertainty exists in IP-related investment disputes. One commentator has described investor-state arbitration claims as a ‘strategy by IP companies to destabilize the balances struck in IP regimes such as the WTO with a view to creating counter-norms or re-writing domestic and international laws and regulations that the industry considers to be inconsistent with their IP rights.’

Against this background, I will argue that tribunals and commentators have not paid sufficient attention to the nature and telos of intellectual property rights (IPRs) or the protection offered to investors by international investment law. I will shed light on how the balancing of private rights against the public interest plays out in international investment law and IP law. I ultimately hope to demonstrate that a better understanding of the underlying rationales and regulatory principles of both IP law and investor protection policies will clarify the important legal issues raised in the practice of IP-related investment disputes.