Intellectual Property and Investment Protection: A Misleading Equation

2021 ◽  
Author(s):  
Christophe Geiger
Keyword(s):  
Intellectual Property ◽  
Investment Protection

scholarly journals STANDARDS OF NON-DISCRIMINATION IN INTERNATIONAL ECONOMIC LAW

2011 ◽  
Vol 60 (4) ◽  
pp. 831-865 ◽  
Author(s):  
Nicolas F Diebold
Keyword(s):  
International Economic ◽  
Intellectual Property ◽  
Eu Law ◽  
Investment Protection ◽  
Goods And Services ◽  
Economic Law ◽  
International Economic Law ◽  
Regulatory Purpose ◽  
Discrimination Rules ◽  
Coherent Factor

AbstractThe principle of non-discrimination constitutes a corner-stone in different fields of international economic law, notably international trade in goods and services as well as intellectual property and investment protection. While its basic rationale appears to be straightforward, the application of the different legal elements which constitute a non-discrimination obligation has proven to be most challenging. Adjudicating bodies have been applying different interpretations and standards with regard to the legal elements of ‘less favourable treatment’, ‘likeness’ and ‘regulatory purpose’, which leads to a high fragmentation of the non-discrimination principle in international economic law. This article maps out the different theories for each of these elements on the examples of WTO law, NAFTA, bilateral investment treaties (BIT) and EU law and analyses how these theories affect the scope and liberalizing effect of the non-discrimination obligation. The article then attempts to develop a coherent factor-based application of non-discrimination rules suitable for all fields of international economic law. The article submits the theory that the elements of non-discrimination should not be applied as strict legal conditions which must be proven by a complainant, but as a range of factors which are weighed and balanced by the adjudicating bodies.

scholarly journals Biologics Under a New NAFTA

2019 ◽  
Vol 5 (3) ◽  
pp. 301-320
Author(s):  
Jordan Jensen
Keyword(s):  
Intellectual Property ◽  
Dispute Settlement ◽  
Trade Agreement ◽  
Pharmaceutical Drugs ◽  
Dispute Settlement Mechanism ◽  
Investment Protection ◽  
The North ◽  
Patent Rights ◽  
Medical Advances

Scientific developments, such as biologics and personalized medicine, have created an entirely new category of pharmaceutical drugs that were not considered when the North American Free Trade Agreement (“NAFTA”) was adopted in 1994. However, the rise of biologics has increased demand for a reconfigured NAFTA, particularly with respect to Chapter 17, which outlines NAFTA’s robust intellectual property standards, as well as Chapter 11, which both lays out the framework for foreign investment under NAFTA and introduces a controversial mechanism referred to as the investor-state dispute settlement mechanism (“ISDS”). The intellectual property provisions of the original NAFTA should be revised to mirror the similar provisions of the Trans-Pacific Partnership (“TPP”) Agreement, which better accommodates new medical advances. However, despite criticism of their lack of transparency, the investment provisions of the original NAFTA are likely sufficient to grant medical patent-rights holders the investment protection that they seek because they strengthen transparency, which is ultimately good for business.

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