Intellectual Property Rights in International Investment Agreements

Intellectual property rights (IPRs) constitute an important and strategic asset in international business. IPRs are generally considered as a proof of technical advancement of an industry and therefore are of an interest for governments trying to attract foreign direct investments in technologically advanced sectors. In order to promote foreign investments, countries often bilaterally conclude international treaties on investment protection. Additionally, investment protection is currently, besides IPRs regulation, often included in complex preferential trade agreements. The IPRs are often explicitly listed in the definition of what is considered as covered investment under a given international investment agreement (IIA), however, the wordings of definitions differ. In the context of investment protection, specific characteristics of 1PRs protection raise conceptual questions in relation to potential disputes over expropriation of an investment, e.g. definition of the rights covered, compulsory licences for patents granted, standard of treatment of an investor stipulated in BITs (national, most-favoured-nation and fair and equitable treatment) or available dispute settlement systems - investor-to-state in BITs vs. stateto-state in multilateral international treaties covering IPRs protection. The aim of this article is to scrutinize to what extent intellectual property rights constitute an investment under bilateral investment treaties and to identify possible impacts and connotations it might have in investment as well as IPRs protection in international trade - for both investors and governments involved.