From Collision to Collaboration
Elgar International Investment Law series
Chapter 1: Intellectual property rights as ‘investments’ under international investment agreements
Because IPRs represent in today’s economies a dominant asset for companies established in technologically advanced countries, the necessity for investors in IPRs to benefit from the protective regime of IIAs is essential. These protections also appear indispensable for investments that do not primarily consist in IP as, regardless of the nature of the invested assets, IPRs are likely to constitute part of the global investment operation, whether taking the form of trade secrets, trade names or tacit know-how. Most IIAs provide for a definition of the term ‘investment’ under which IPRs are, most of the time, included. While the vast majority of IIAs include IP under their scope of application, there is however a global lack of standardization concerning the way in which IPRs are covered by model treaties; a lack of coordination that provides fertile ground for disputes. The coverage of IPRs under IIAs can indeed be done in several ways. First, IIAs can include IPRs under their scope by explicitly enumerating the kind of IP that is covered under the agreement. This first method, used by the vast majority of BITs, leaves no room for doubt and insures a high degree of legal certainty.