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The Study Of Issues Regarding The Possibility That Compulsory License May Constitute Indirect Expropriation In International Investment

Posted on:2016-11-19Degree:MasterType:Thesis
Country:ChinaCandidate:J S SongFull Text:PDF
GTID:2296330479487972Subject:International law
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Compulsory license and indirect expropriation are important systems in intellectual property law and international investment law respectively. Due to the distinction of legal areas they belong to, compulsory license and indirect expropriation shouldn’t have been discussed together. However, with the development of international investment treaties and investment arbitration, intellectual property has become an important kind of investment and thus been stipulated in almost all investment treaties. In this sense, the protection and limit of intellectual property may be subject to both intellectual property law and international investment law. In consideration of this situation, compulsory license and indirect expropriation, though belong to different legal areas, may be applicable at the same time.Through further comparison of compulsory license and indirect expropriation, we can find that these two systems have a lot in common with regard to the specific rules; while they see big conflicts with regard to the value they are supposed to pursuit.The similarity may be found as follows. First, compulsory license and indirect expropriation are both realized by government power or economic sovereign of the 2state. Second, compulsory license and indirect expropriation are both a restriction of private assets. Third, neither compulsory license nor indirect expropriation constitutes a complete deprivation of private assets. For compulsory license, only several intellectual property rights are limited; while for indirect expropriation, the ownership of assets is generally not deprived. Last, neither compulsory license nor indirect expropriation is free of charge, which means that certain reimbursement shall be paid to the right holder whose right is subject to compulsory license or indirect expropriation.Although compulsory license and indirect expropriation are similar as mentioned above, they of course have a big difference. The intent of legislators to create compulsory license in intellectual property law is to protect public interest through the restriction of private intellectual property by state powers. However, the purpose of indirect expropriation is to categorize certain state acts or measures into the scope of indirect expropriation and impose restrictions on indirect expropriation so as to protect the interest of investors. The foregoing similarity makes it possible for compulsory license to constitute indirect expropriation; while the difference makes it necessary to conduct a study on such a possibility.When conduct specific confirmation on the possibility that compulsory license may constitute indirect expropriation, we should first make sure that the objects of these two systems are consistent. Only if certain intellectual property, as the object of compulsory license constitutes investment, as the object of indirect expropriation, could these two systems be applicable at the same time. The consistency of objects is the precondition that compulsory license may constitute indirect expropriation. Generally, the objects of compulsory license include patent, copyright, new varieties of plant and the layout design of integrated circuit, which, based on international investment treaties and arbitral cases may be within the scope of investment.Then we need to discuss the necessary elements of indirect expropriation, which usually includes severe impacts on certain investment, the purpose of government acts in dispute, and the impacts on the legitimate expectations of the investor. After the discussion, it is found that the foregoing possibility surely exists.If a certain compulsory license is recognized as indirect expropriation, it may lead to severe consequences to the host state, for instance, it may encumber the realization of the value of compulsory license, hurt the investment environment of the host state or cause extra burden on the host state to reimburse the investor. To cope with this situation, several suggestions are raised.This thesis is divided into four chapters:Chapter one “The Primary Cause of Compulsory Licenses to Constitute Indirect Expropriation” In this chapter, the author will first make an introduction of compulsory license and indirect expropriation respectively, and then make a comparison of these two systems to find the similarity and distinction. The similarity makes it possible for compulsory license to constitute indirect expropriation; while the distinction makes it necessary to conduct this study.Chapter two “The precondition for Compulsory Licenses to Constitute Indirect Expropriation” In this chapter, the author will discuss different intellectual properties that may be subject to compulsory license, then discuss the definition of investment in international investment law, and finally, make the conclusion that these intellectual properties may be regards as investment, which is the precondition for compulsory licenses to constitute indirect expropriation.Chapter three “Specific Analysis on Compulsory License Constituting Indirect Expropriation” In this chapter, the author will first discuss the necessary elements for the constitution of indirect expropriation, and then demonstrate that compulsory license may meet these elements and be recognized as indirect expropriation.Chapter four “Consequences if Compulsory License Constitutes Indirect Expropriation and Relevant Suggestions” In this chapter, the author will discuss consequences may be caused once compulsory license constitutes indirect expropriation, and then make suggestions accordingly. China my consider putting exception clauses for the definition of investment or for indirect expropriation.
Keywords/Search Tags:Compulsory License, Indirect Expropriation, Investment, Legitimate Expectations, Exception Clause
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