The Investment-Related Aspects of Intellectual Property Rights
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From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly and media attention. This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law and policy by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift remains an important academic and policy question. To address this question, the present article critically examines the investment-related aspects of intellectual property rights, with a focus on the use of ISDS to address international disputes involving intellectual property investments. It begins by exploring the growing trend of using investment law and fora to set international intellectual property norms. It also closely evaluates the strengths and weaknesses of the ISDS mechanism. This article then examines the various upgrades that the TPP Agreement has provided to the ISDS mechanism. It further outlines the conceptual and institutional improvements that could make ISDS even better than the mechanism provided in the TPP Agreement. This article concludes by exploring whether the TPP ISDS mechanism has provided any silver linings if it is adopted without modification.
