Intellectual Property: A Beacon for Reform of Investor-State Dispute Settlement

Abstract

Investor-state dispute-settlement (ISDS) clauses give multinational investors (corporations) a right to sue a state in a binding proceeding before an independent arbitration tribunal. This jurisgenerative right to file a claim in an international tribunal with mandatory jurisdiction is generally reserved to States. ISDS is a mechanism meant to protect the private property of multinational investors against certain acts of public authorities.

Intellectual Property differs from the more traditional private (property) law interests that ISDS aims to protect. IP incorporates public policy objectives such as innovation, access to information or public health that are reflected in limitations and exceptions to the IP rights of authors and inventors.

ISDS tribunals have had few cases involving IP rights. The two cases (Philip Morris v Uruguay and Eli Lilly v Canada) reviewed in the Article thus portend possible major major changes in the ISDS field. Those cases serve as exemplars to probe how ISDS tribunals deal not just with IP and its dual private/public nature, but with investment protection in any situation that requires factoring in the broader public interest. The two cases illuminate very different paths that ISDS tribunals can follow. In one case (Lilly v Canada), the tribunal kept public interest at bay by imposing a very difficult test (egregiousness) for investors to meet. In the second (Phillip Morris v Uruguay), the tribunal expressly balanced investor protection against the public interest reflected in human rights. Such a stark divergence exemplifies the interpretive difficulties faced by ISDS tribunals. As a result, outcomes are difficult if not impossible to predict.

This Article suggests a structured approach to build a more robust interface between ISDS and IP against the backdrop of lessons learned from those two cases. The Article proposes a clear doctrinal path that ISDS tribunals can use to factor public interest/public law matters in their deliberations (“inclusive ISDS”), as opposed to focusing strictly on investor protection (“exclusive ISDS”).

The Article also considers at how this discussion might inform preparations for the EU’s proposed Multilateral Investment Court (MIC), one of the most significant ongoing ISDS reform efforts.