Role of IP in Investor-State Conflicts Involving Human Rights Issues

Nirala, Chintan

Abstract

The field of investor-state arbitration in recent years has been a playground between investors and state. Fortunately or unfortunately, it has also taken within its garb the issues involving human rights. The state is often coerced by the investors to forsake its duty to protect the rights of its own citizens in lieu of its treaty obligation to protect their agreed investor rights. A new actor has emerged in this conflict, namely, Intellectual Property Rights. The article is an attempt to assess the role of intellectual property and its possible contribution in conciliation of the conflict. The first section traces the path of intellectual property emerging as an ‘investment’ in the context of investment law. The second section focuses on the use of intellectual property (IP) norms and human rights standards in treaty interpretation and arguments forwarded by both parties. The third section sets out the possible role that IP can play as a conciliator in this conflict.

Keyword(s)

Investment Treaty; International Investment Agreements; TRIPS Plus; Investment Arbitration Proceedings; The Tobacco Plain Packaging Act, 2011; WTO Agreement on Technical Barriers to Trade; NAFTA; Investor State Dispute Settlement Proceedings; Vienna Convention on the Law of Treaties; Umbrella Clauses; intangible goods; human rights

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