One of the major criticisms against investor-State dispute settlement (ISDS) is its threat to host states’ legitimate regulatory rights: international investment agreements (IIAs) are primarily designed to protect foreign investments, and ISDS tribunals frequently interpret the vague IIA obligations broadly in favour of investors. This problem can be particularly salient in disputes involving Intellectual Property Rights (IPRs). As Dr Pratyush Nath Upreti points out in his timely and well-researched book, Intellectual Property Objectives in International Investment Agreements, social objectives are embedded in domestic and international intellectual property (IP) legal orders, and they risk being undermined in an investment-protection-oriented legal regime.
The book tackles the tension between IIAs and IP regulation and provides normative suggestions for reconciling their competing objectives (i.e. investment protection v. social objectives). To be more specific, Chapter 2 showcases the central role of social objectives in international IP norms (particularly Articles 7 and 8 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)). Chapter 3, which examines the key features of international investment law, suggests that ISDS tribunals tend to emphasize the property rights of investments but overlook their social functions. Chapter 4 tackles the important question of whether IPRs can be considered investments in IIAs. Critically assessing the features of IPRs against the criteria established in ISDS jurisprudence (i.e. the Salini test) as well as the functions of investment through the lens of IPRs, it concludes that IPRs per se should not be equated with investments. Chapter 5 reaffirms the importance of national laws in ISDS given the territoriality nature of IPRs; it also proposes viable approaches to ensure that national exceptions and limitations to IPRs are considered in ISDS. Chapter 6 analyzes the review of domestic courts’ decisions by ISDS tribunals and discusses potential approaches to secure the autonomy of domestic regulatory and judicial organs.
Based on the discussion in the preceding Chapters, the author proposes in Chapter 7 a novel avenue to safeguard the social objectives of IP in ISDS; that is, to include sui generis IP exceptions in IIAs that consist of TRIPS Articles 7 and 8. According to the author, this method can effectively supplement other methods such as proportionality, the margin of appreciation, and general exceptions. The proposal is convincing. The assessment of other methods, nevertheless, could benefit from further critical analysis of the inherent tension between domestic IP regulation for public purposes on the one hand and investment tribunals’ (possibly enlarging) lawmaking power on the other. As the author also emphasizes in Chapter 5, granting more deference to domestic regulations is critical for safeguarding IP's social objectives, while allowing tribunals to engage with, for example, proportionality analysis, creates more chances for them to conduct substantive reviews of host States’ IP policies, thus systemically increasing the risk of impeding domestic regulation.
Overall, the book makes a novel and timely contribution to studying the intersection between international investment law and IP. Its discussion also has important implications for other issues in IIAs that are intertwined with social objectives, which is particularly valuable for the ongoing discourse on investment law reform.
Competing interests
The author declares none.
