Chapter 3: Jurisdiction and applicable law in trade mark investment disputes
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This chapter identifies two preliminary points in a trade mark investment arbitration: firstly, the jurisdiction of the arbitral tribunal and secondly, the applicable law in trade mark investment arbitration. On jurisdiction, this chapter focuses on the question of a “qualifying investment” under international investment treaties and the ICSID Convention. The case of Bridgestone v Panama is a new case which offers more substantive guidance on the matter. With respect to the applicable law, the chapter explores the roles of the international law and the domestic law of the host state in investment arbitration. The domestic law of the host state is particularly important when determining the scope and nature of trade mark rights as a protected investment asset. Finally, this chapter explores the duty of arbitrators to know the law (iura novit curia/arbiter) in investment arbitration and finds that at present, no such duty exists.

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