From Collision to Collaboration
Chapter 2: Intellectual property rights as ‘investments’ under the ICSID Convention
The question of whether IP is included under the notion of investment as interpreted under the ICSID Convention does not always have to be addressed. However, nothing prevents IIAs from providing for a specific dispute resolution mechanism other than ICSID arbitration, whether of an arbitral or jurisdictional nature; in such a case, the question at stake in the present Part can be entirely avoided. However, in light of the protections provided under ICSID arbitration, the vast majority of investment agreements refer to this dispute settlement mechanism. Among these advantages, the most obvious lies in the enforcement mechanism attached to arbitral decisions of the ICSID that requires member states to the Convention to consider these arbitral decisions as having the same force as judgements of their own courts. The ‘uniquely binding enforcement provisions’ of the ICSID Convention represent an important advantage and protection for investors as ‘[t]his simple procedure eliminates the problems of the recognition and enforcement of foreign arbitral awards, which subsist in domestic laws and under other international conventions’. Moreover, ICSID arbitration is particularly important compared to other dispute settlement mechanisms in the field of international investment law as a consequence of the fact that, under some BITs, ICSID arbitration is ‘the only enforcement option mandated as of right’.
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