The Investment-Related Aspects of Intellectual Property Rights

By Yu, Peter K. | American University Law Review, January 1, 2017 | Go to article overview

The Investment-Related Aspects of Intellectual Property Rights


Yu, Peter K., American University Law Review


Introduction

Three decades ago, the United States and other contracting parties to the General Agreement on Tariffs and Trade (GATT) launched the Uruguay Round of Multilateral Trade Negotiations ("Uruguay Round") to develop new international norms concerning the trade- related aspects of intellectual property rights.1 These norms eventually became the Agreement on Trade-Related Aspects of Intellectual Property Rights2 ("TRIPS Agreement"). This oft-criticized agreement not only transformed the international intellectual property landscape but also necessitated a revision-and for many countries, a complete overhaul-of the domestic intellectual property system. It is therefore no surprise that some leading commentators have described the TRIPS Agreement as a "sea change" or "tectonic shift" in international intellectual property law and policy.3

Today, we are at a similar crossroads. Through bilateral, regional, and plurilateral trade and investment agreements, new norms are being developed to address the investment-related aspects of intellectual property rights.4 Even more importantly, these norms will strengthen the ability of private investors, such as intellectual property rights holders, to sue foreign governments without the support of their home governments.5 One therefore cannot help but wonder whether we are now approaching yet another "sea change" or "tectonic shift" in international intellectual property law and policy.

In the past few years, the developments concerning the investmentrelated aspects of intellectual property rights have garnered considerable policy, scholarly, and media attention. Frequently criticized is the Trans-Pacific Partnership (TPP),6 whose agreement the United States and its eleven trading partners in the Asia-Pacific region signed on February 4, 2016.7 The TPP investment chapter and its attendant investor-state dispute settlement ("ISDS") mechanism have generated quite a controversy, as this mechanism will allow private investors to resolve international disputes with host states concerning all forms of investments, including those in the intellectual property field.8

Senator Elizabeth Warren (D-Mass.) is among the most vociferous critics of iSDS, which she condemned for giving large multinational corporations "the right to challenge laws they don't like-not in court, but in front of industry-friendly arbitration panels that sit outside any court system."9 In the run-up to last year's presidential election, the candidates from both the Democratic and Republican Parties also offered similarly harsh criticisms. While Hillary Clinton described iSDS as "flawed" and called for "a new paradigm for trade agreements that doesn't give special rights to corporations, but not to workers and NGOs,"10 Donald Trump made his opposition loud and clear by lambasting the TPP as "another disaster, done and pushed by special interests who want to rape our country."11 Upon taking office, President Trump quickly followed through by signing a presidential memorandum that directed the United States Trade Representative "to provide written notification to the Parties and to the Depository of the TPP . . . that the United States withdraws as a signatory of the TPP and withdraws from the TPP negotiating process."12

Apart from the TPP Agreement and its ISDS mechanism, intellectual property-related investor-state disputes involving Philip Morris have also received significant attention. Since February 2010, this multinational corporate giant began challenging the plain-packaging regulations for tobacco products in Uruguay13 and Australia.14 Both efforts have since failed.15 From March 2012 to September 2013, Ukraine, Honduras, the Dominican Republic, Cuba, and Indonesia also filed complaints challenging the tobacco control measures in Australia before the Dispute Settlement Body of the World Trade Organization (WTO).16 These ongoing cases have since been consolidated,17 and the WTO panel plans to issue its decision later this year. …

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