received comments by the other eu institutions; most importantly among them were the Council Conclusions of 25 October 2010 7 and the European Parliament’s Resolution of 6 April 2011. 8
All these documents contain important information on various aspects of future euinvestmentagreements to be
This article examines the potential challenges for the protection of intellectual property rights (IPRs) through International Investment Agreements (IIAs) in light of the new generation of IIAs negotiated by the European Union (EU). It argues that it will be difficult in practice to succeed in enforcing IPRs through IIAs. The article will do so by examining in detail the criteria international tribunals have required in order to consider IPRs covered investments, and then analyzing the key protection standards considering the interaction between investment treaties and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Because negotiators have reacted to the legal issues raised in this context with new and innovative treaty language, this article will further examine these issues based on the EU’s IIAs. Their drafting practice should be taken as an indication that existing IIAs should be interpreted rather narrowly in respect of the protection of IPRs.
“(a) new, ambitious model euinvestmentagreement should be developed in close coordination with member States,” 3 the Commission remained reluctant on this issue and refused to draft a Model BIT , as is standard practice among most OECD members. With this policy, the Commission wants to avoid
– perpetuates a conceptual distinction that is of little practical relevance in international investment law. In EU law, however, it describes a critical factor for delineating external competences for the implementation of an EUinvestmentagreement and its application in a particular dispute. Investment
) Article 44 ICSID Convention.
13) Catharine Titi (2013), EUinvestmentagreements and the search for a new balance: A paradigm shift from laissez-faire liberalism toward embedded liberalism? Columbia FDI Perspectives No. 86, 3 January 2013, www.vcc.columbia.edu .
14) Catharine Titi (2013
the three major institutions (Commission, Council, and Parliament) shortly after Lisbon. We then turn with some detail to the substantive standards and the enforcement chapter before concluding. The chapter will leave aside issues of competence and the question of whether an euinvestmentagreement
recently negotiated EUinvestmentagreements, 30 but also by the recent Opinion 2/15 on the Free Trade Agreement between EU and Singapore, where the Court clarified that the investor-State dispute settlement system (‘ ISDS ’) provided for by the mentioned agreement was not within the exclusive
On 18 October 2013, political agreement was reached in the context of the negotiations on the EU-Canada Comprehensive Economic and Trade Agreement ( ceta ), the first euinvestmentagreement to reach that state. The term ‘political agreement’ indicates that the parties have
investor will usually be permanent. 22
3.3 Shell Companies
The Commission as well as the European Parliament have announced in various documents that ‘shell companies’ will not be protected under euinvestmentagreements and thus the possibilities of ‘treaty shopping’ via shell companies should be
in place before the conclusion of the first EUinvestmentagreement pursuant to Article 207 TFEU.
Yet, five years after the entry into force of the Treaty of Lisbon, too many uncertainties remain, both about the EU’s competence and in the intra-EU BIT context. On balance, investment protection