The European Union’s New Generation of International Investment Agreements and Its Implications for the Protection of Intellectual Property Rights

In: The Journal of World Investment & Trade

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.

  • 47

    Grosse Ruse-Khan (n 27) 1696.

  • 55

    Grosse Ruse-Khan (n 27) 1696.

  • 57

    Grosse Ruse-Khan (n 27) 1696. See also Klopschinski (n 6) 234–35. For the contrary view see Mortenson (n 21) 8.

  • 59

    Grosse Ruse-Khan (n 27) 1699. See also Mortenson (n 21) 8; Klopschinski (n 6) 236–49. But see Okediji (n 21) 1127–28.

  • 61

    Grosse Ruse-Khan (n 27) 1697.

  • 62

    Chile-Egypt BIT (signed 5 August 1999, not yet in force) art I(2) accessed 5 November 2016. For further analysis of such clauses see Katharina Diel-Gligor and Rudolf Hennecke, ‘Investment in Accordance with the Law’ in Bungenberg and others (eds) (n 27) 566–76. See also Lavery (n 8) 12–13; Klopschinski (n 6) 167–69; Grosse Ruse-Khan (n 27) 1696.

  • 64

    Grosse Ruse-Khan (n 27) 1697, pointing out that India and several other developing countries did not grant patent protection to pharmaceutical products until 1995 or later; some countries protect industrial designs under copyright (or even patent law), others have a specific design right.

  • 66

    Grosse Ruse-Khan (n 27) 1698.

  • 87

    See also Okediji (n 21) 1127.

  • 129

    Grosse Ruse-Khan (n 27) 1705.

  • 174

    See also Grosse Ruse-Khan (n 27) 1698. Regarding denial of justice claims in the IPR context, see the reasoning in Philip Morris v Uruguay (n 2) paras 516–36 and the dissenting opinion of Gary Born at paras 6–81.

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