Intellectual Property Rights as Protected Investments: How Open Are the Gates?

Abstract

The protection afforded to different legally-defined objects may overlap when different regimes apply to the same object. This article focuses on the overlap of two protective regimes, intellectual property rights (IPRs) and international investment agreements (IIAs), as applied to certain intangible objects, such as an invention, a distinctive mark or the expression of an artistic work. More specifically, we analyse the interactions between the different regulatory layers and provisions that govern the possibility of bringing IPRs under the protection of IIAs. After some general remarks on the references to IPRs in investment agreements (II), we focus on three main understandings of such interactions (III), namely delegation (by an investment agreement to domestic law), autonomy (of the definition of IPRs in investment agreements), and articulation (of all the relevant regulatory layers to circumscribe the scope of the legally-protected object). In a final section, we draw some conclusions with a view to guide current and future practice (IV).

Keywords: intellectual property rights, investment arbitration, investment law, Eli Lilly v. Canada, Philipp Morris v. Australia, Philipp Morris v. Uruguay