Fairness, Morality and Ordre Public in Intellectual Property
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Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Chapter 8: Fair and equitable treatment of foreign investments and intellectual property rights

Emmanuel Kolawole Oke

Abstract

In assessing the potential impact that treating intellectual property (IP) as an investment asset can have on the IP policy space available to states, it is essential to draw a distinction between the rules governing the expropriation of investment assets and the rules relating to the fair and equitable treatment (FET) of investments. This distinction is necessary because, in some investment agreements, measures relating to IP are excluded from the scope of the rules on expropriation, whereas there is usually no such exclusion of IP from the scope of the FET standard. Moreover, the FET standard can be described as a standard whose content and scope is ambiguous, thus making it a potentially useful tool in the hands of an investor seeking to challenge an IP measure adopted by a state. This chapter therefore seeks to examine the potential impact that the FET standard can have on the IP policy space available to states. Using the two recent decisions of investment tribunals in the cases of Philip Morris v Uruguay and Eli Lilly v Canada as case studies, the chapter will critically examine the extent to which a claim based on a denial of FET can narrow down the policy space available to states to design their national IP laws in a way that suits their level of development and societal needs.

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