Pratyush Nath Upreti: “Regime Shifting: Litigating Intellectual Property Rights in Investor-State Dispute Settlement”

Research Seminar – Wednesday 18 May, 16.00, room EB 602

In today’s industrialized world, the landscape of the intellectual property is changing. It has become an integral part of the regulatory system, including investment and trade policies leading debate globally. The paper examines the ‘romantic affair’ among trade agreement, investor claim, and intellectual property through the lenses of Trade Related Aspects of Intellectual Property (TRIPS) flexibility and investor-state dispute settlement (ISDS). The recent International Investment Agreements (IIAs) reveal ‘intellectual property’ as the form of investment, advancing an alternative way for an investor to protect their intellectual property rights. Under such circumstances, investors have challenged traditional intellectual property through claims of fair and legitimate expectation, expropriation, full protection, and security. Such practices have a severe impact on international intellectual property standards and also bring concerns of TRIPS flexibility. In addition, ISDS has been the concern for countries in negotiating an investment agreement like Transatlantic Trade and Investment Partnership (TTIP) between the European Union and the United States and Trans-Pacific Partnership (TPP) where twelve countries throughout the Asia pacific region are members. There has been a serious concern raised in the European community on ISDS, as they believe it creates a risk of ‘regulatory chill’. Thus, this paper investigates the intersection between intellectual property and ISDS. The author uses an interdisciplinary approach to examine the possible investment claims under Investor-state dispute settlement. Moreover, it focuses on the severe impact on international intellectual property standards and flexibility.

The paper is available for download here.

Pratyush Nath Upreti is Visiting Research Fellow at CIPPM.