Research Handbook on Intellectual Property and Investment Law

Edited by Christophe Geiger, Full Professor of Law and Director of the Innovation Law and Ethics Observatory (ILEO), Luiss University, Italy

'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

• Contents:1 Introduction 1Christophe GeigerPART I CONCEPTUALIZING THE RELATIONSHIP BETWEENINTELLECTUAL PROPERTY AND INVESTMENT PROTECTIONSECTION 1 THE INTERACTION BETWEEN INTELLECTUALPROPERTY AND INVESTMENT IN THE CONTEXT OFTRADE AND INVESTMENT TREATIES2 Protecting intellectual property through trade and investment agreements:concepts, norm-setting and dispute settlement 11Henning Grosse Ruse-Khan3 The object and purpose of mingling intellectual property, trade and investment 48Susy Frankel4 Mapping the evolution and trends of the nexus between intellectualproperty, trade and investment 63Pedro Roffe5 When is intellectual property an ‘investment’? 94Ruth L. Okediji6 Intellectual property as protected investment: redefining the reach ofinvestors’ rights 120Carlos Correa7 The relevance of National Treatment and Most Favoured Nation in thecontext of intellectual property and investment disputes 137Lukas Vanhonnaeker8 Keep calm and carry on: lessons from the jurisprudence on fair andequitable treatment and intellectual property rights 159Bryan Mercurio9 Intellectual property, investment and the World Trade Organization(WTO): a historical account 182Pratyush Nath UpretiSECTION 2 INTELLECTUAL PROPERTY AND INVESTMENTPROTECTION: THE IMPACT ON REGULATORYPOWERS AND PUBLIC POLICY10 The intersection of ISDS and TRIPS flexibilities 207Cynthia M. Ho11 Public policy considerations in intellectual property-related internationalinvestment arbitration 218Simon Klopschinski12 Investor-State Dispute Settlement and intellectual property: lessons fromLilly v. Canada 250Daniel GervaisPART II ADJUDICATING INTELLECTUAL PROPERTY ANDINVESTMENT PROTECTIONSECTION 1 INTELLECTUAL PROPERTY, TRADE ANDINVESTMENT: COMPARED ENFORCEMENTPROCEDURES AND THE FUTURE OFINVESTOR-STATE DISPUTE SETTLEMENT13 Jurisdictional overlaps in international intellectual property: challengesarising from the proliferation of preferential trade agreements regulatingintellectual property rights 267Xavier Seuba14 Adjudicating intellectual property disputes at the GATT/WTO: are theregeneral lessons for the Investor-State Dispute Settlement system? 287Graham Cook and Hannu Wager15 Protecting fundamental values in international IP disputes: investor-statevs. WTO adjudication 318Rochelle Cooper Dreyfuss16 Logo? No logo? The WTO dispute on plain packaging of tobacco, and beyond 339Enrico Bonadio and Althaf Marsoof17 Conceptual and institutional improvements to investor-state dispute settlement 366Peter K. YuSECTION 2 ADDRESSING THE ROLE OF HUMAN RIGHTS ANDETHICS IN INTELLECTUAL PROPERTY ANDINVESTMENT LITIGATION18 The fundamental right to property and the protection of investment: howdifficult is it to repeal new intellectual property rights? 385Martin Husovec19 Human rights and intellectual property in investor to state dispute settlement 406Tuomas Mylly20 The protection of intellectual property and foreign direct investment: theimpact of equity 438Thomas CottierSECTION 3 ADDRESSING THE EU AND NATIONAL LEGALFRAMEWORK AND ITS INTERACTIONS WITHINTELLECTUAL PROPERTY AND INVESTMENT DISPUTES21 The EU’s cumbersome investment law and policy, and its effects on theprotection of intellectual property rights 461Szilárd Gáspár-Szilágyi22 The compliance of investment protection mechanisms in Free TradeAgreements with EU law 477Rainer Geiger23 Intellectual property in trade-related international agreements: a legalanalysis from the perspective of a Member State 492Daniel Segoin24 Regulatory and policy issues arising from intellectual property andInvestor-State Dispute Settlement in the EU: a closer look at the TTIPand CETA 505Christophe GeigerIndex 528