Protection of Intellectual Property Rights in Investor-State Arbitration: Underlying Challenges and Perspectives

This article provides an analysis of existing international mechanisms for protecting intellectual property rights and concludes whether investment arbitration can be an effective forum for resolving intellectual property disputes. It focuses on an examination of the scope of intellectual property rights protection by bilateral investment agreements, as well as the specifics of the investment dispute resolution procedure. In addition, the analysis includes an assessment of the territoriality principle of intellectual property rights and its application in Ukrainian law, as well as an examination of international investment treaties concluded with Ukraine to determine the scope of protection afforded to intellectual property.

Harmonizing Commercial and Investment Arbitration: Conflict Dynamics

This article provides an independent analysis of the scope and extent of arbitration under investment agreements, and the implications of the possible convergence in the process of harmonization of international commercial arbitration law.The successful settlement of any dispute depends on the compatibility of the nature of the dispute with the technique to which it is submitted for resolution. In the last decade, there was a constant increase in the number of disputes that were subjected to arbitration and a major chunk of those disputes covered a comparatively new but known area called international investment law. With economic globalization allowing the free flow of foreign direct investment (FDI) in and out of a country, the existing regulatory framework in international law to standardize investment liberalization is often seen as ineffective, hence the consequent disputes. Here, arbitration offers a suitable framework for the amicable settlement of commercial disputes covering investment agreements with the assistance of bilateral or multilateral agreements between the states. Preferential trade agreements pertaining to investment often contain an arbitration clause for the settlement of future disputes between parties. At this juncture, one may find that there exists a fundamental dilemma in ascertaining the true nature of investment arbitration and how it is different from commercial arbitration. For example, the protection being offered to human rights under the purview of investment arbitration may generate doubts in the minds of investment arbitrators. In commercial arbitration, divergences in a pluralistic order become particularly relevant whereas the diverse legal cultures supported by individual constitutional frameworks have a direct impact on investment arbitration due to their practical application. The article also discusses the need for harmonized rules governing arbitration procedures while maintaining the functional dissimilarities between commercial and investment arbitration.

BALANCING INVESTOR PROTECTION WITH A STATE’S REGULATORY AUTONOMY IN THE AMENDED SADC FIP

This article focuses on the 2016 Amended Annex 1 to the Southern African Development Community (SADC) Finance and Investment Protocol (FIP) (the Amended Annex), which entered into force on 22 August 2017. It aims at a comprehensive assessment of the adequacy of the Amended Annex in balancing investor protection with SADC member states’ quest for domestic policy space in the content of the treaty provisions. Prior to the amendment, the 2006 SADC FIP contained clauses that were considered challenging in the old international investment agreements (IIAs) – such as broad definitions of “investor” and “investment”, provision for international arbitration as a recourse, and according foreign investors fair and equitable treatment (FET) and most favoured nation (MFN) treatment. The challenges associated with bilateral investment treaties (BITs) (especially investor-state dispute settlement (ISDS) mechanisms, restrictions on sovereign policy space and regulatory autonomy) necessitated a review by the SADC member states of the 2006 SADC FIP. The purpose of this article is to reflect on the implications of the 2016 Amended Annex 1 to the SADC FIP with a view to finding a balance between protection enjoyed by investors and the host states’ right to regulate. The article adopts a comparative international law approach, which is useful in order better to understand a SADC member country’s approach to foreign investment protection.

THE INVESTMENT PROTECTION AT SEA UNDER THE INVESTMENT TREATIES: TACKLING THE PROBLEM OF TRANSNATIONAL INVESTMENTS

According to the provisions of investment agreements, one of the terms of investment at sea is the nexus between the investment and the maritime zones of the host state. Therefore, an investment is under treaty protection when it is under the geographical realm of states. Hence, the protection status beyond the state maritime boundaries is facing problems. Today, lack of clear rules in this filed can create challenges for the future investments as well. Purpose: to show how investment protection of international investment agreements beyond the states jurisdiction at sea can be created. Methods: general scientific methods of theoretical knowledge, as well as general logical methods and research techniques are used in analyzing existing investment agreements and ICSID awards. Results: the paper proposes a solution for extending the investment protection of treaties to the high sea that it is the cross-border nature of some investments that can find in the Energy Charter Treaty (1994) and the ICSID decision on Deutsche Bank AG v. Democratic Socialist Republic of Sri Lanka. Ultimately, the article shows what is the cross- border nature and how it resolves the problem of investment at high sea.

The Transformation of Global Intellectual Property Protection

This chapter traces the transformation of global intellectual property protection. The classical Convention regime, epitomised by the Paris Convention protecting industrial property and the Berne Convention protecting copyright, dominated the international IP scene for about a century. Other norm sets have become relevant for IP more recently. These often strengthen IP rights or grant them complementary protection and include international investment agreements (IIAs), predominantly in the form of bilateral investment treaties (BITs) and investment chapters in trade treaties; the protection of property ownership as a fundamental right; private regulation of IP; and IP-specific counter-norms. Ultimately, this transformation of global IP law necessitates a broadening of the constitutional discourses relevant for IP. Constitutional pluralism, new constitutionalism, and societal constitutionalism represent the main currents of such global constitutional discourses.

The New Constitutional Architecture of Intellectual Property

This chapter sketches some of the central features of the transforming constitutional architecture of intellectual property. It studies the characteristics of this constitutional development from the perspective of social acceleration, in particular. This enables the discussion of novel developments of IP, beyond the traditional constitutional treatments and the idea that human rights could re-establish the lost balance of IP. The chapter argues that the prevailing new constitutionalist architecture of IP is best understood through the role of constitutional norms in both accelerating and decelerating change. In particular, it contends that the judicature, the executive, and the private sphere increasingly replace legislators as the key drivers of IP policies; that locking-in mechanisms like the three-step test and international investment agreements (IIAs) provide the needed stability for the acceleration developments; and that the notion of structural proprietarian bias captures the spirit of the prevailing multipolar IP constitutionalism.