Research On Intellectual Property Protection In International Investment Arbitration

In recent years,the pace of international intellectual property investment has been quickening,and the disputes of intellectual property caused by it have been increasing.In addition to the unique advantages of international investment arbitration as compared with other dispute settlement methods,the legislation on intellectual property protection in investment agreements is constantly being improved.For these reasons,investors prefer to use international investment arbitration to settle intellectual property disputes,so there are more and more international investment arbitration cases involving intellectual property.Some problems in these arbitration cases are worth considering,such as the jurisdiction of the case,the application of the substantive rules of the case,and the follow-up effects of the arbitration on the investors and the host country.The analysis and discussion of these problems is helpful to put forward the perfect countermeasures with pertinence and practical significance.The jurisdiction question is the first question which the arbitration tribunal should ponder before accepting the dispute.The arbitral tribunal has jurisdiction over intellectual property cases subject to four conditions: investor eligibility,protection of the investment,temporal jurisdiction and non-abuse of right.This means that the intellectual property investor must be a national of another contracting state in the investment agreement and have ownership or effective control of the intellectual property investment,that the intellectual property falls under the protection of the investment agreement and that the investment is lawful and effective;when the host country defaults,the investment behavior is still protected by the investment agreement,and there is no abuse of right for the investor to submit to arbitration by the standard of "predictability".In investment agreements,the substantive rules of intellectual property protection are mainly embodied in investor treatment clauses(including national treatment,most favored nation treatment and fair and equitable treatment)and expropriation compensation clauses.Due to the dispute between the arbitration tribunal and the application of the national treatment and Most favored nation clause,few investors claim it as an intellectual property right remedy;Fair and just treatment in the application of the main performance of non-discrimination,due process and reasonable expectations,etc.,currently usually used "customary international law minimum treatment" standard;the expropriation and compensation clauses are mainly embodied in the limitation,revocation and compulsory license of the host country to the intellectual property rights of the investors,and the exception clauses of the intellectual property rights are generally stipulated in the agreement,which is consistent with the obligations of the host country in TRIPs agreement.In addition,there are some common problems in the process of hearing intellectual property cases.In order to prevent excessive discretion on the part of the arbitral tribunal,states parties should strengthen the power of interpretation of investment agreements;in order to minimize conflicts arising from the arbitral tribunal's interpretation of the intellectual property world convention,relevant international organizations should issue official interpretation documents;In order to balance the relationship between the protection of intellectual property rights and the public interest of the host country,it is necessary to strengthen the regulation of the content of the public interest in the agreement and to set limits on the applicable circumstances.In order to reduce the threat of the arbitral proceedings to the host country's intellectual property law,TPP can be used for reference to prevent investors from abusing their claims and endow the host country with counterclaims.