Protection of Intellectual Property Rights Under International Investment Law

In recent decades, foreign direct investment (FDI) has played an increasingly significant role in world economic activity and development. In economic terms, the accumulated stock of FDI and its generation of commercial activity by foreign affiliates have made FDI comparatively more important than international trade in goods and services. While FDI has experienced long-term steady growth until the recent financial crisis, another powerful trend has been transforming an important part of modern economies: these economies are becoming predominantly 'conceptual', reflecting the vital role of ideas in common and highly valued products and services, and shifting the emphasis in asset valuation from physical to intellectual property (IP). As this trend continues, a similar change can be observed in FDI: foreign investments are reflecting an increasing concentration of intellectual capital invested in knowledge goods protected by intellectual property rights. Thus, IP rights have never been more economically and politically important or controversial than they are today.

There have long been international treaties that protect IP, but in recent years other international treaties have come into being that protect IP rights along with other property rights. These treaties include various international investment agreements (IIAs), which regard IP rights as a protected investment.

This book will analyse the standards of treatment and protection enshrined in IIAs for IP rights, with reference to topics such as the fragmentation of international law; investor-host-state dispute resolution; investors and investments; relative standards of treatment (such as most favoured nation); absolute standards of treatment (such as fair and equitable treatment); and expropriation.

Since many questions regarding the relevance of IIA for IP rights have not been decided yet by investment tribunals, this lack of practice will be addressed by the analysis of hypothetical cases based on actual cases decided by other adjudicating bodies in different legal contexts, such the European Court of Human Rights or the European Court of Justice. Pending proceedings such as Philip Morris and Eli Lilly will also be discussed.

Simon Klopschinski, Associate, Rospatt Osten Pross, Christopher Gibson, Professor of Law, Suffolk University School of Law, and Henning Grosse Ruse-Khan, University Reader and Fellow, Kings College, University of Cambridge and Max Planck Institute for Innovation and Competition, Munich

Dr Simon Klopschinski is an associate at Rospatt Osten Pross, an intellectual property firm based in Dusseldorf, Germany, specializing in patent litigation, licencing, competition law, general contract law and commercial law, and the organization of multi-jurisdictional patent litigation in Europe. He received the Otto Hahn Medal for his analysis of the protection of intellectual property by means of investment treaties under international law, which he carried out in the course of his doctoral thesis at the Max Planck Institute for Intellectual Property and Competition Law in Munich and went on to publish in German.

Professor Christopher Gibson is an expert in international law, international arbitration, and international intellectual property issues at Suffolk University Law School in Boston. Previously, Professor Gibson was a partner in the London office of Steptoe & Johnson LLP, where he specialized in the areas of international arbitration, intellectual property, and technology disputes and transactions. Professor Gibson teaches and writes in the areas of international dispute resolution, international intellectual property, international trade, and internet law and technology.

Henning Grosse Ruse-Khan is a University Reader in International and European Intellectual Property Law at the University of Cambridge, a Fellow of King's College (Cambridge) and an external researcher at the Max Planck Institute for Innovation and Competition in Munich (Germany). Henning's research and teaching focuses on international intellectual property protection and development issues, world trade and investment law, as well as on interfaces amongst legal orders in international law, including transnational law set by private actors.