The latest in the series “Elgar Intellectual Property and Global Development,” this title primarily focuses on issues related to international investment and intellectual property law viewed through an intertextual lens. Oke cites recent claims by corporations against states involving intellectual property before investment tribunals as the impetus for the book. For example, Philip Morris Asia brought a claim against Australia under the Australia/Hong Kong Agreement for the Promotion and Protection of Investments, a bilateral investment treaty (BIT), after the Australian government released the Tobacco Plain Packaging Bill 2011 regulating the appearance, size and shape of tobacco products, and packaging, including limiting the use of intellectual property on or in relation to tobacco products. Ultimately, the tribunal did not reach the intellectual property issue because it declined to exercise jurisdiction over the case due to Philip Morris altering its corporate structure to claim protection under the Agreement when a dispute with Australia over tobacco plain packaging was reasonably foreseeable. Regardless of the outcome, the case demonstrates that corporate lawyers are actively trying to use BITs to protect not only traditional investments but also intellectual property rights.
Oke frames the central question of the book as, “How should the terms and standards protection contained in investment treaties be interpreted and applied in investment disputes involving intellectual property rights?” Oke proposes that intertextuality is the key to answering this question. Chapter 2 introduces the concept of intertextuality, both its origins in literary criticism and its treatment by legal scholars. For readers with limited familiarity with intertextuality, this background is crucial to understanding the rest of the book. Oke acknowledges Judge Richard Posner's rejection of intertextuality in legal interpretation and briefly counters Posner's view by positing that the Posner rejects the poststructuralist approach to intertextuality rather than the structuralist approach advocated by Oke. A more in-depth response to Posner's critique would bolster Oke's case for using intertextuality in legal interpretation, the premise upon which the rest of the book focuses.
After introducing intertextuality, Oke turns to its application in intellectual property and investment law in Chapter 3. An examination of investment tribunals’ jurisdiction under BITs and the Convention of the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) focuses on how intellectual property rights can become part of disputes before these tribunals. Another case involving Philip Morris is used to illustrate this intersection of investment and intellectual property. Philip Morris sued Uruguay under the BIT between Switzerland and Uruguay alleging that Uruguay's anti-smoking legislation devalued its cigarette trademarks and investments in the country. While the complaint was brought under a BIT, the tribunal looked to rules of international intellectual property under the Paris Convention and the TRIPS Agreement in coming to its decision that supported Uruguay's rights to regulate public health regardless of foreign investor rights. Oke then considers the Vienna Convention on the Law of Treaties (VCLT), particularly Article 31(3)(c) permitting use of any relevant rules of international law applicable in the relations between the parties as part of the general rules of interpretation. Oke asserts that “an intertextual analysis based on Article 31(3)(c) can be used to ensure that terms and standards of protection contained in investment treaties are interpreted in a manner that is consistent with international intellectual property law.”
This assertion is applied in Chapter 4, which focuses on determining whether an intellectual property right can be defined as an investment and advocating for the synchronization of international investment law and international intellectual property law using an intertextual approach. This synchronization is illustrated using extensive discussions of cases that involve not only traditional intellectual property rights such as trademarks but also goodwill and know-how. After these illustrations, Oke reasserts the importance of synchronization using an intertextuality approach.
Chapter 5 addresses the scope of the fair and equitable treatment (FET) standard and examines how tribunals have treated the FET standard in relation to foreign investments and intellectual property rights. FET clauses are included in almost all BITs but are interpreted differently based on the exact terms of the BIT. Oke again cites the dispute between Philip Morris and Uruguay when discussing the treatment of intellectual property and the FET standard. The language of the Switzerland-Uruguay BIT provides that each “Contracting Party shall ensure fair and equitable treatment with its territory of investments of the investors of the other Contracting Party.” The tribunal looked to both the VCLT and customary international law to interpret the FET clause. Although there was a disagreement between the arbitrators regarding Philip Morris’ allegations of violation of the FET due to contradictory rulings by judicial bodies in Uruguay, the majority of arbitrators were not swayed by this argument as the standard for violating a FET clause is high. After examining the cases, Oke acknowledges that drawing general conclusions from cases involving the FET standard is difficult due to variations in FET clauses used in BITs but concludes that the ambiguous nature of the FET standard means they pose a threat to investment disputes generally, not just to disputes involving intellectual property rights. Again, an intertextual approach is proposed to solve this ambiguity.
In Chapter 6, Oke considers both direct and indirect expropriation of intellectual property rights through judicial or regulatory action. The chapter primarily focuses on regulatory action and Oke examines how tribunals have applied the three major tests for expropriation, namely the sole effects test, the police powers test, and the proportionality test. Tribunals use these tests to distinguish between legitimate regulation and regulatory expropriation. Oke revisits the dispute between Philip Morris and Uruguay and examines the dispute under all three tests of regulatory expropriation. To close, Oke again advocates that tribunals should engage in intertextual analysis to solve the regulatory expropriation claims in these types of disputes.
While the discussion of using BITs to protect intellectual property is fascinating, I am not convinced of the necessity of using intertextuality. VCLT Article 31(3)(c) clearly provides for broad usage of other rules of international law as part of the general rules of interpretation. Oke's initial defense of intertextuality is cursory and does not fully counter critiques such as that of Judge Posner. The dispute between Philip Morris and Uruguay is discussed in multiple chapters and could have been a more obvious framing device for the Oke's argument. Overall, the book's strength is its examination of the interplay between international investment law and international intellectual property rights rather than its focus on intertextuality.
