Study On The Problem Of Application Of Intellectual Property Law In The ISDS Arbitration

The protection of IP rights via international investment agreements(IIAs)has been the subject of considerable scholarly interest in recent years.Most IIAs cover IP rights as a form of investment,which makes IP rights not only is protected by traditional international intellectual property laws,such as Agreement on Trade-related Aspects of Intellectual Property Rights,but also is protected by international investment laws and international investment dispute settlement mechanism.Against this background,IP owners can directly initiate international investment arbitration against the host state by applying the “Investor-State Dispute settlement” clause contained in the IIAs and invoking the substantive standards protected investment to claim the measures the host country taken which have effected their intellectual property rights,which can further restrain the host state's regulatory rights,destroy the sovereign rights of the host state,and erode the policy space and institutional space that the TRIPS agreement grants to its members.With the continuous development of China's economy,China has transformed from a pure capital-entry country into a country with two kinds of identities,capital-importing and capital-exporting.In this background of the “One Belt and One Road” strategy,China plays a role in capital-exporting countries,more and more Chinese enterprises invest toward abroad to grab markets.IP rights as a form of investment,it has always been the focus of investors how to protect it and if IP rights is infringed by the host state.Therefore,researching deeply IP owner how to invoke substantive standards protected the investment contained IIAs and apply the ISDS arbitration mechanism initiating arbitration against the host state for protecting own interests,and how this action will affect the host state,it can provide proposals for China's government to complete the relevant clauses and reduce the risk of lawsuit,balance the interests of China as a host state and foreign IP owner's rights.In addition to the introduction and conclusion,this paper is divided into four parts,as follows:The first part introduce the reasons why investment cases related to IP right can be resolved in arbitration,and then briefly introduces three high-profile cases,namely,Eli Lilly v Canada,Philip Morris v Uruguay,Philip Morris v Australia.Finally,it points out the dilemma caused by solving investment disputes related to IP rights in arbitration.The second part analyzes the four routes that IPRs apply intellectual property law in ISDS arbitration.There are three routes that do not allow IP owner to apply relevant intellectual property laws in disputes,including(1)fair and equitable treatment,reasonable expectation under fair and equitable treatment do not allow owner to expand its interpretation;(2)umbrella protection,The clauses do not allow owner to extend the obligations under the treaty to the host country's obligations to other contracting parties;(3)Most-favored-nation treatment,applying the intellectual property laws to resolve investment disputes does not comply with ejusdem generis.Expropriation clause is only feasible route for owner to apply the intellectual property laws in dispute.The third part further analyzes the problems brought by the application of intellectual property laws in dispute,and then according to the principles of conflict of international law to provide a better route for IP owner to apply intellectual property norms in investment disputes reated to intellectual property.The fourth part summarizes the problems found in the arbitration practice,and finally the article will make some feasible suggestions for negotiators to help them negotiate IIAs in the future,for instance,clear-out the specific content and applicable scope of the relevant provisions,confirm the status of host country's regulatory right in the treaty,establish an exchange mechanism for treaty interpretation.The major opinion of the article is that if the investment dispute related to IP happen between the host state and the owner,the right holder can use the ISDS arbitration mechanism to submit the dispute to the International Investment Tribunal.In application of laws,none of them,fair and equitable treatment,umbrella clauses or most-favoured-nation treatment,do not allow owner to apply relevant international intellectual property norms in the dispute.The expropriation clause is the only one that allows owner to use international intellectual property norms in disputes,but its application will bring a series of problems,so this article has found a better way,namely the lex specials in the international conflict rules,this route allows them to apply the international intellectual property norms in disputes,and it does not bring adverse effects.In addition,after analyzing these cases related to intellectual property rights,in order to better protect the interests of China and the IP owner who invest abroad,China should clarify the specific provisions of the relevant treaty when negotiating or concluding IIAs in the future.