No. 50: Investor-State Dispute Settlement and the Relationship between IP and Investment Chapters in Free Trade Agreements

Details

Author(s):
Publish Date:
January 31, 2020
Publication Title:
TTLF Working Papers
Publisher:
Stanford Law School
Format:
Working Paper
Citation(s):
  • Gabriel M. Lentner, Investor-State Dispute Settlement and the Relationship between IP and Investment Chapters in Free Trade Agreements, TTLF Working Papers No. 50, Stanford-Vienna Transatlantic Technology Law Forum (2020).
Related Organization(s):

Abstract

Recently, more and more IP-related disputes are being brought before investment tribunals. This paper addresses the overlooked issue of the relationship between IP and investment chapters in Free Trade and Investment Agreements (FTAs), such as the recently concluded Canada-EU Comprehensive Economic and Trade Agreement (CETA), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), and others. IP is usually dealt within separate chapters in those agreements and within the WTO regime that provides for exclusive jurisdiction over the regulation and enforcement of IP. However, investment tribunals have so far not fully engaged with those legal regimes 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 Bridgestone v Panama. Existing literature has so far not addressed this issue at all. I argue that investment tribunals should have taken into account the applicable conflict rules to arrive at the conclusion that IP disputes are to be resolved through state-to-state dispute settlement mechanisms under the FTA or the WTO. Reviewing the recent decisions on jurisdiction in these cases, I also look at some possible (negative) implications of the assumption of jurisdiction for IP.