The Research On Intellectual Property Protection In International Investment Treaties

The protection of intellectual property rights has always been one of the important topics of international investment treaties.Since FCNS,international investment treaties have protected intellectual property for more than 100 years.In 1948,the temporary application of GATT weakened or replaced the trade protection function of FCNs,and investment protection became the main topic of the FCNs.Some scholars believe that the transformation of intellectual property protection system of investment treaties originated in this period.After the establishment of the WTO in 1990 s,TRIPS was finally reached through many negotiations between developed and developing countries.TRIPS is the legal basis for incorporating intellectual property protection into the WTO system.This is a wide range of intellectual property protection,high level of protection,great protection and restraint in the field of intellectual property protection in the world.With the development of the globalized economy,the intellectual property protection standards stipulated in TRIPS cannot meet the needs of the developed countries,and the level of intellectual property protection in the WTO framework is also difficult.The developed countries bypass the WTO multilateral system and make the BIT and the free trade agreement FTA become an important mechanism for its implementation of intellectual property rights strategy and the strengthening of intellectual property protection.In particular,the recent intellectual property investment disputes that have arisen have involved host country control measures such as public health,labeling requirements,research and development requirements,and patent invalidation.The international community has begun to pay attention to the intellectual property protection system in the investment field.International Investment Treaties usually focus on the provisions of the host country's protection of investors' rights and interests,while the rights and interests of the host countries are often ignored.In the practice of international investment arbitration,the host country's measures to protect the public interests conflict with the protection obligations of the international investment treaties.The measures taken by the state to protect the public interests are considered by the arbitration tribunal to constitute a violation of the terms of fair and impartial treatment,expropriation and compensation,and the host country is in a disadvantageous position in arbitration.In view of this,through combing the evolution of theintellectual property protection system in the substantive norms of bilateral investment treaties and multilateral investment treaties,this paper mainly combines the relevant provisions of the international investment treaty on the definition of intellectual property and the identification of intellectual property rights in the intellectual property disputes in the international investment field.The rules of equity,fair and fair treatment,the rules of compensation and compensation,and their application may conflict with the legal system of the host country's intellectual property rights,and propose suggestions for improving the protection of intellectual property rights of the international investment treaties.This article is divided into five parts and is described as follows:The first part is an overview of intellectual property protection of international investment treaties.This part mainly combs the historical evolution of IPR protection in international investment treaties,and starts with the introduction of the current situation of intellectual property protection in international investment treaties,explores the reasons for its evolution,and analyzes the conflict between investor protection and the host country's regulation right in the field of international investment arbitration.The second part is the analysis of the suitability rules of intellectual property investment in international investment treaties.In the light of international investment treaties,the basic way to define intellectual property investment is to define intellectual property investment through enumeration.In arbitration practice,arbitral tribunal usually adopts compliance or restrictive standard to identify intellectual property investment.In this part,it is believed that the adoption of compliance path to identify the suitability of intellectual property investment may increase the burden of the host country and give investors more protection than the laws of intellectual property rights in their own countries.The third and fourth parts are the analysis of fair and equitable treatment rules and expropriation compensation rules in international investment treaties.The international investment treaty provides broad and general rules for the rules of air and equitable treatment rules and expropriation compensation rules.In the practice of arbitration,different standards are adopted in the determination of these two rules.The arbitral tribunal tends to use broad explanations in explaining fair and equitable treatment rules and expropriation compensation rules to make it more conducive to the interests of foreign investors.Therefore,there are many disputes in the theory and practice on the recognition of the rules of fair and equitable treatment rules and expropriation compensation rules.It is challenging to explain the fair andequitable treatment rules and expropriation compensation rules to balance the public interests and investor interests of the host country.Through the analysis of the fair and equitable treatment rules of the international investment treaty and the provisions of the expropriation compensation clause and the international intellectual property disputes,the two parts think that the current host country's protection measures for the public health may violate the fair and equitable treatment and the expropriation of the international investment treaties,and produce international investment rules and regulations.The conflict of the host country's legal system has an adverse effect on the regulatory power of host country.The fifth part is to improve the investment treaty intellectual property protection proposals.This part is mainly based on the international intellectual property investment arbitration practice and the international investment treaty provisions to provide suggestions on how to balance the interests of investors and the public interests of the host country.The international investment treaty emphasizes the protection of investors and neglects the interests of the host country.So in order to improve the intellectual property protection of the international investment treaties,it is necessary to change ideas and make certain changes to the international investment treaties,such as modifying the main legal rules of the entity,and protecting the interests of the host country.The State Party can establish a treaty interpretation mechanism to prevent different arbitral tribunals from interpreting the provisions of international investment treaties,especially fair and equitable treatment,and levying compensation clauses.