No. 78 Regime Shifting in Action: The Case of Bridgestone v Panama and Trademarks before Investment Tribunals

Details

Author(s):
Publish Date:
September 9, 2021
Publication Title:
TTLF Working Papers
Publisher:
Stanford Law School
Format:
Working Paper
Citation(s):
  • Gabriel M. Lentner, Regime Shifting in Action: The Case of Bridgestone v Panama and Trademarks before Investment Tribunals, TTLF Working Papers No. 78, Stanford-Vienna Transatlantic Technology Law Forum (2021).
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Abstract

Regime shifting in international IP law has been observed for some time now. In a groundbreaking piece, Larry Helfer saw in the years after the WTO TRIPS agreement entered into force a strategy by developing countries and NGOs to actively seek other international fora to ‘recalibrate, revise, or supplement the treaty’. In 2015, Rochelle Dreyfuss and Suzy Frankel detected an overlooked aspect of regime shifting in international law that reconceptualized IP from incentive to commodity and to asset, particularly through looking at developments in investment law. Henning Ruse-Khan similarly noticed in the changes surrounding Free Trade Agreements (FTAs) and Bilateral Investment Treaties (BITs) an eradication of so-called TRIPS flexibilities, i.e. policy space left for mostly developing countries to adopt sensible regulation of IP tailored towards their needs. From a law and political economy (LPE) approach, Katharina Pistor identified in this regime shifting a problematic contribution to global inequality, because investment law results in expanding private property rights in IP without regard to legitimate policy decisions by states.

How the regime shifting takes place in the legal realm and manifests itself in important cases is less studied. The recent award rendered in Bridgestone v Panama, adds an important legal piece to the puzzle of how this regime shifting plays out at the level of legal argumentation and jurisprudence.

Against this background, this paper builds on previous research and contributes to the existing discussion on regime shifting by offering a detailed analysis of the legal arguments and the reasoning behind the decision of an investment arbitration tribunal in Bridgestone v Panama. It thus seeks to add the legal-doctrinal aspect to the debate for future research being able to identify the argument patterns adopted to expand private property rights of big corporations in the realm of IP.