Intellectual Property and International Dispute Resolution

When a couple of years ago, intellectual property laws had their first brush with
investor-state dispute settlement, the encounter was not considered a particularly
welcome one: intellectual property laws operated on the principles of national
treatment, transparency (patere, Latin for: stay or remain open) and judicial expertise,
while ISDS was a specific mechanism open only to foreign investors operating in
secret by panels of trade lawyers chosen ad hoc. Unsurprisingly, experts in the
field of international trade, and those in the field of intellectual property law that
contributed to this book held widely differing views on the merits of ISDS, and
whether intellectual property rights should be included as “investments” in bilateral
and multilateral investment treaties that envisaged such form of dispute settlement.
Undoubtedly, however, the high profile cases concerning plain packaging laws
for tobacco products, and the Eli Lilly v. Canada case in the context of NAFTA, have
stirred a wider debate on the appropriateness of ISDS particularly amongst developed
nations. Trade negotiations of the EU with Canada for the CETA Agreement and
with the US for TTIP were accompanied by significant public concerns that foreign
investors via ISDS would be allowed to run roughshod over European standards for
protecting health, consumers and the environment.
The contributions of this book highlight the different mechanisms of international
dispute settlement having particular regard to cases involving intellectual
property laws.