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Research Handbook on Intellectual Property and Investment Law
This innovative Research Handbook explores the complex and controversial interactions between intellectual property (IP) and investment law. In light of recent developments at national, European and international levels, the chapters critically examine the legitimacy of current practices with regard to the social function of IP rights and the regulatory autonomy of States to undertake measures in the public interest.
More Information
Critical Acclaim
Contributors
Contents
More Information
This innovative Research Handbook explores the complex and controversial interactions between intellectual property (IP) and investment law. In light of recent developments at national, European and international levels, the chapters critically examine the legitimacy of current practices with regard to the social function of IP rights and the regulatory autonomy of States to undertake measures in the public interest.
Internationally renowned contributors analyse high profile cases in the framework of global legal forums and agreements, such as the Global Agreement on Tariffs and Trade and the WTO. Exploring the significance of fundamental human rights and ethical concerns, this Research Handbook will provide critical insight into intellectual property law, particularly with respect to the protection of IP as an investment, and its adjudication in the context of investor-state dispute settlement (ISDS) mechanisms.
Comprehensive and engaging, academics and higher-level students working on intellectual property, investment law, European law and international law, will benefit from this Research Handbook. Specialized lawyers and practitioners, as well as organizations or governments involved in IP regulation, will also take advantage from its insight.
Internationally renowned contributors analyse high profile cases in the framework of global legal forums and agreements, such as the Global Agreement on Tariffs and Trade and the WTO. Exploring the significance of fundamental human rights and ethical concerns, this Research Handbook will provide critical insight into intellectual property law, particularly with respect to the protection of IP as an investment, and its adjudication in the context of investor-state dispute settlement (ISDS) mechanisms.
Comprehensive and engaging, academics and higher-level students working on intellectual property, investment law, European law and international law, will benefit from this Research Handbook. Specialized lawyers and practitioners, as well as organizations or governments involved in IP regulation, will also take advantage from its insight.
Critical Acclaim
‘As a Research Handbook, this volume certainly lives up to its name. It is rich with information and will be of great help to researchers, arbitral tribunals, practitioners and policy makers. It is an impressive book as it brings together accomplished and emerging scholars for analysing some of the complexities on intellectual property and investment that allow readers to discern a level of understanding. In that regard, the book successfully makes intellectual property and investment accessible and instructive and therefore should be seen as a valuable contribution to the field.’
– P. Sean Morris, Journal of World Investment & Trade
‘This Research Handbook is an essential resource for anyone working on intellectual property issues that cross international borders. As investment law reshapes the global governance of knowledge, Christophe Geiger has assembled some of the world’s top scholars to address opportunities and challenges. Lawyers, policymakers, academics and students will benefit immensely from this timely collection of expert insights.’
– Jeremy de Beer, University of Ottawa, Canada
‘The recent move to pursue intellectual property claims through international investment law threatens to disrupt the international intellectual property regime. However, it also offers a fascinating window into a number of features of that regime. This thought-provoking book brings together a stellar collection of authors exploring the discrete question of investment protection of intellectual property as well as the broader implications of this development for international intellectual property law.’
– Graeme B. Dinwoodie, Illinois Institute of Technology, Chicago-Kent College of Law, US
‘Most intellectual property scholars lack in-depth understanding of the IP-investment nexus. This much needed book is the solution we need. It provides world-class scholarship on this complex and controversial field of international law whose diverse impacts range from industrial development to public health. Readers will gain a truly global perspective on the subject.’
– Graham Dutfield, University of Leeds, UK
– P. Sean Morris, Journal of World Investment & Trade
‘This Research Handbook is an essential resource for anyone working on intellectual property issues that cross international borders. As investment law reshapes the global governance of knowledge, Christophe Geiger has assembled some of the world’s top scholars to address opportunities and challenges. Lawyers, policymakers, academics and students will benefit immensely from this timely collection of expert insights.’
– Jeremy de Beer, University of Ottawa, Canada
‘The recent move to pursue intellectual property claims through international investment law threatens to disrupt the international intellectual property regime. However, it also offers a fascinating window into a number of features of that regime. This thought-provoking book brings together a stellar collection of authors exploring the discrete question of investment protection of intellectual property as well as the broader implications of this development for international intellectual property law.’
– Graeme B. Dinwoodie, Illinois Institute of Technology, Chicago-Kent College of Law, US
‘Most intellectual property scholars lack in-depth understanding of the IP-investment nexus. This much needed book is the solution we need. It provides world-class scholarship on this complex and controversial field of international law whose diverse impacts range from industrial development to public health. Readers will gain a truly global perspective on the subject.’
– Graham Dutfield, University of Leeds, UK
Contributors
Contributors: E. Bonadio, G. Cook, C. Correa, T. Cottier, R.C. Dreyfuss, S. Frankel, S. Gáspár-Szilágyi, C. Geiger, R. Geiger, D. Gervais, H. Grosse Ruse-Khan, C.M. Ho, M. Husovec, S. Klopschinski, A. Marsoof, B. Mercurio, T. Mylly, R.L. Okediji, P. Roffe, D. Segoin, X. Seuba, P.N. Upreti, L. Vanhonnaeker, H. Wager, P.K. Yu
Contents
Contents:
1 Introduction 1
Christophe Geiger
PART I CONCEPTUALIZING THE RELATIONSHIP BETWEEN
INTELLECTUAL PROPERTY AND INVESTMENT PROTECTION
SECTION 1 THE INTERACTION BETWEEN INTELLECTUAL
PROPERTY AND INVESTMENT IN THE CONTEXT OF
TRADE AND INVESTMENT TREATIES
2 Protecting intellectual property through trade and investment agreements:
concepts, norm-setting and dispute settlement 11
Henning Grosse Ruse-Khan
3 The object and purpose of mingling intellectual property, trade and investment 48
Susy Frankel
4 Mapping the evolution and trends of the nexus between intellectual
property, trade and investment 63
Pedro Roffe
5 When is intellectual property an ‘investment’? 94
Ruth L. Okediji
6 Intellectual property as protected investment: redefining the reach of
investors’ rights 120
Carlos Correa
7 The relevance of National Treatment and Most Favoured Nation in the
context of intellectual property and investment disputes 137
Lukas Vanhonnaeker
8 Keep calm and carry on: lessons from the jurisprudence on fair and
equitable treatment and intellectual property rights 159
Bryan Mercurio
9 Intellectual property, investment and the World Trade Organization
(WTO): a historical account 182
Pratyush Nath Upreti
SECTION 2 INTELLECTUAL PROPERTY AND INVESTMENT
PROTECTION: THE IMPACT ON REGULATORY
POWERS AND PUBLIC POLICY
10 The intersection of ISDS and TRIPS flexibilities 207
Cynthia M. Ho
11 Public policy considerations in intellectual property-related international
investment arbitration 218
Simon Klopschinski
12 Investor-State Dispute Settlement and intellectual property: lessons from
Lilly v. Canada 250
Daniel Gervais
PART II ADJUDICATING INTELLECTUAL PROPERTY AND
INVESTMENT PROTECTION
SECTION 1 INTELLECTUAL PROPERTY, TRADE AND
INVESTMENT: COMPARED ENFORCEMENT
PROCEDURES AND THE FUTURE OF
INVESTOR-STATE DISPUTE SETTLEMENT
13 Jurisdictional overlaps in international intellectual property: challenges
arising from the proliferation of preferential trade agreements regulating
intellectual property rights 267
Xavier Seuba
14 Adjudicating intellectual property disputes at the GATT/WTO: are there
general lessons for the Investor-State Dispute Settlement system? 287
Graham Cook and Hannu Wager
15 Protecting fundamental values in international IP disputes: investor-state
vs. WTO adjudication 318
Rochelle Cooper Dreyfuss
16 Logo? No logo? The WTO dispute on plain packaging of tobacco, and beyond 339
Enrico Bonadio and Althaf Marsoof
17 Conceptual and institutional improvements to investor-state dispute settlement 366
Peter K. Yu
SECTION 2 ADDRESSING THE ROLE OF HUMAN RIGHTS AND
ETHICS IN INTELLECTUAL PROPERTY AND
INVESTMENT LITIGATION
18 The fundamental right to property and the protection of investment: how
difficult is it to repeal new intellectual property rights? 385
Martin Husovec
19 Human rights and intellectual property in investor to state dispute settlement 406
Tuomas Mylly
20 The protection of intellectual property and foreign direct investment: the
impact of equity 438
Thomas Cottier
SECTION 3 ADDRESSING THE EU AND NATIONAL LEGAL
FRAMEWORK AND ITS INTERACTIONS WITH
INTELLECTUAL PROPERTY AND INVESTMENT DISPUTES
21 The EU’s cumbersome investment law and policy, and its effects on the
protection of intellectual property rights 461
Szilárd Gáspár-Szilágyi
22 The compliance of investment protection mechanisms in Free Trade
Agreements with EU law 477
Rainer Geiger
23 Intellectual property in trade-related international agreements: a legal
analysis from the perspective of a Member State 492
Daniel Segoin
24 Regulatory and policy issues arising from intellectual property and
Investor-State Dispute Settlement in the EU: a closer look at the TTIP
and CETA 505
Christophe Geiger
Index 528
1 Introduction 1
Christophe Geiger
PART I CONCEPTUALIZING THE RELATIONSHIP BETWEEN
INTELLECTUAL PROPERTY AND INVESTMENT PROTECTION
SECTION 1 THE INTERACTION BETWEEN INTELLECTUAL
PROPERTY AND INVESTMENT IN THE CONTEXT OF
TRADE AND INVESTMENT TREATIES
2 Protecting intellectual property through trade and investment agreements:
concepts, norm-setting and dispute settlement 11
Henning Grosse Ruse-Khan
3 The object and purpose of mingling intellectual property, trade and investment 48
Susy Frankel
4 Mapping the evolution and trends of the nexus between intellectual
property, trade and investment 63
Pedro Roffe
5 When is intellectual property an ‘investment’? 94
Ruth L. Okediji
6 Intellectual property as protected investment: redefining the reach of
investors’ rights 120
Carlos Correa
7 The relevance of National Treatment and Most Favoured Nation in the
context of intellectual property and investment disputes 137
Lukas Vanhonnaeker
8 Keep calm and carry on: lessons from the jurisprudence on fair and
equitable treatment and intellectual property rights 159
Bryan Mercurio
9 Intellectual property, investment and the World Trade Organization
(WTO): a historical account 182
Pratyush Nath Upreti
SECTION 2 INTELLECTUAL PROPERTY AND INVESTMENT
PROTECTION: THE IMPACT ON REGULATORY
POWERS AND PUBLIC POLICY
10 The intersection of ISDS and TRIPS flexibilities 207
Cynthia M. Ho
11 Public policy considerations in intellectual property-related international
investment arbitration 218
Simon Klopschinski
12 Investor-State Dispute Settlement and intellectual property: lessons from
Lilly v. Canada 250
Daniel Gervais
PART II ADJUDICATING INTELLECTUAL PROPERTY AND
INVESTMENT PROTECTION
SECTION 1 INTELLECTUAL PROPERTY, TRADE AND
INVESTMENT: COMPARED ENFORCEMENT
PROCEDURES AND THE FUTURE OF
INVESTOR-STATE DISPUTE SETTLEMENT
13 Jurisdictional overlaps in international intellectual property: challenges
arising from the proliferation of preferential trade agreements regulating
intellectual property rights 267
Xavier Seuba
14 Adjudicating intellectual property disputes at the GATT/WTO: are there
general lessons for the Investor-State Dispute Settlement system? 287
Graham Cook and Hannu Wager
15 Protecting fundamental values in international IP disputes: investor-state
vs. WTO adjudication 318
Rochelle Cooper Dreyfuss
16 Logo? No logo? The WTO dispute on plain packaging of tobacco, and beyond 339
Enrico Bonadio and Althaf Marsoof
17 Conceptual and institutional improvements to investor-state dispute settlement 366
Peter K. Yu
SECTION 2 ADDRESSING THE ROLE OF HUMAN RIGHTS AND
ETHICS IN INTELLECTUAL PROPERTY AND
INVESTMENT LITIGATION
18 The fundamental right to property and the protection of investment: how
difficult is it to repeal new intellectual property rights? 385
Martin Husovec
19 Human rights and intellectual property in investor to state dispute settlement 406
Tuomas Mylly
20 The protection of intellectual property and foreign direct investment: the
impact of equity 438
Thomas Cottier
SECTION 3 ADDRESSING THE EU AND NATIONAL LEGAL
FRAMEWORK AND ITS INTERACTIONS WITH
INTELLECTUAL PROPERTY AND INVESTMENT DISPUTES
21 The EU’s cumbersome investment law and policy, and its effects on the
protection of intellectual property rights 461
Szilárd Gáspár-Szilágyi
22 The compliance of investment protection mechanisms in Free Trade
Agreements with EU law 477
Rainer Geiger
23 Intellectual property in trade-related international agreements: a legal
analysis from the perspective of a Member State 492
Daniel Segoin
24 Regulatory and policy issues arising from intellectual property and
Investor-State Dispute Settlement in the EU: a closer look at the TTIP
and CETA 505
Christophe Geiger
Index 528
