The Investment-Related Aspects of Intellectual Property Rights

 Posted by on September 27, 2016  Comments Off on The Investment-Related Aspects of Intellectual Property Rights
Sep 272016

yuAbstract: From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly, and media attention.

This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift in intellectual property law remains an important academic and policy question. Continue reading »


TPP: rigged ISDS

 Posted by on November 6, 2015  12 Responses »
Nov 062015

ffii[Foundation for a Free Internet Infrastructure, Link, (CC-BY)] New Zealand has published the text of the Trans-Pacific Partnership (TPP). Ongoing analysis, subject to updates:


Investor-to-state dispute settlement (ISDS) places investment tribunals above states, above democracies. This places the development of law beyond democratic scrutiny. At a national level, parliaments can change laws that do not work out well. This is not possible at the supranational level. The transfer of power is as good as definitive: it is practically impossible to withdraw from (deep integration) trade agreements. Continue reading »

Nov 052015

sean - 150x150Today’s release of the TPP agreement confirms that its Investor State Dispute Settlement (ISDS) chapter would expand the rights of private companies to challenge limitations and exceptions to copyrights, patents, and other intellectual property rights in unaccountable international arbitration forums. The text contains broader provisions than are being used by Eli Lilly to challenge Canada’s invalidation of patent extensions for new uses of two medicines originally developed in the 1970s. Continue reading »


TPP Governments Try to Lessen Stakeholder ISDS Fears

 Posted by on October 19, 2015  Comments Off on TPP Governments Try to Lessen Stakeholder ISDS Fears
Oct 192015
Image:  EFF (CC-BY)

Image: EFF (CC-BY)

Trans Pacific Partnership governments are trying to convince stakeholders that the controversial Investor-State Dispute Settlement (ISDS) mechanism in the agreement is an improvement over those found in previous trade agreements. ISDS rules in NAFTA have allowed Eli Lilly to sue Canada over its standards of patentable subject matter. Tobacco companies have used ISDS to sue Uruguay and Australia over health measures which the companies say encroach on their trademark rights.

The negotiators want to convince the general public that corporations will have a more difficult time using the new ISDS system.  Continue reading »

Oct 012015

sean - 150x150USTR has reportedly tabled a new provision for the Trans-Pacific Partnership Agreement (TPP) that would carve out tobacco regulation from the effect of its investor-state dispute settlement (ISDS) chapter, which allows private companies to challenge domestic regulations in secretive and unaccountable international arbitration forums. ISDS challenges can generally be brought against domestic regulations whenever a company claims an “indirect” expropriation by regulation of an “investment,” which is defined to include “the expectation of gain or profit.”

Those with knowledge of the new tobacco text have revealed that the language proposed to be added to the investment chapter reads: Continue reading »


Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines – Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement

 Posted by on September 30, 2015  Comments Off on Corporate Power Unbound: Investor-State Arbitration of IP Monopolies on Medicines – Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement
Sep 302015

baker-geddesBrook K. Baker and Katrina Geddes

Abstract: Despite the deep irony of free trade agreements being subverted to codify and extend anti-competitive monopoly rights and despite the equally deep irony of foreign investors having greater enforcement rights than local investors, the joining of enhanced intellectual property rights (IPRs) and protections and strengthened investor rights is creating a wild-west opportunity for unbounded corporate power. Two current contestations show the dangers of this expanded power in sharp relief. Continue reading »


EU Commission ISDS Proposal a Threat to Democracy and Civil Rights

 Posted by on September 21, 2015  Comments Off on EU Commission ISDS Proposal a Threat to Democracy and Civil Rights
Sep 212015

ffii[Foundation for a Free Information Infrastructure, Link (CC-BY)] The European Commission has published its investor-to-state dispute settlement (ISDS) reform proposal for the EU-US trade agreement under negotiation (TTIP).

Introduction: The commission’s proposal institutionalises discrimination. It gives foreign investors – and only foreign investors – the right to exit domestic legal systems and use supranational adjudication to challenge government decisions. Supranational adjudication places the development of law outside democratic oversight. Continue reading »


USTR Backtracks on Commitments with Intellectual Property & Investor-State Dispute Settlement Clause

 Posted by on April 8, 2015  Comments Off on USTR Backtracks on Commitments with Intellectual Property & Investor-State Dispute Settlement Clause
Apr 082015

sean - 150x150Last week I expressed my shock in seeing that the Trans Pacific Partnership agreement proposes to expand (or at least clarify) the ability of corporations to challenge intellectual property limitations and exceptions in so called investor-state dispute settlement (ISDS) tribunals. One source of that surprise came from my recollection of repeated meetings with USTR negotiators who assured me and others that ISDS forums were not intended to provide a means to challenge intellectual property limitations and exceptions. Continue reading »


India Posts Model Bilateral Investment Treaty Text for Review

 Posted by on March 24, 2015  Comments Off on India Posts Model Bilateral Investment Treaty Text for Review
Mar 242015

india-flagLeena Menghaney

India, like South Africa, is concerned about the Bilateral Investment Treaties (BITs) it has signed in the past. India has put out a draft its New Model text for BITs negotiations, Now posted online:

The last date for submission of comments is 10th April.


Mar 162015

afl-cioIntroduction: Recently the United States Trade Representative (USTR) released a memo to reporters with Q&A’s on Investor-to-State Dispute Settlement (ISDS). ISDS is a mechanism by which foreign investors can challenge national governments, alleging that the government violated their investor rights. These rights include the right to be fairly compensated for expropriated property and to non-discriminatory treatment, but also the right to a “minimum standard of treatment,” which includes “fair and equitable treatment” and “full protection and security” and the right to be free from “performance requirements.” Continue reading »

Aug 052014

blue futureMaude Barlow is the chairperson of the Council of Canadians, and the founder of the Blue Planet Project. She is a recipient of Sweden’s Right Livelihood Award, and a Lannan Cultural Freedom Fellowship. As well as being a noted human rights and trade activist, Barlow is the author of a number of books on water rights – including Blue Gold,[1] Blue Covenant,[2] and Blue Future.[3] She has been particularly vocal on the impact of trade and investment agreements upon water rights. Barlow has been critical of the push to include investor-state dispute settlement clauses in trade agreements – such as the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union, the Trans-Pacific Partnership (TPP), and the Trans-Atlantic Trade and Investment Partnership Agreement (TTIP). She has also been concerned by the Trade in Services Agreement (TISA) leaked by WikiLeaks. Continue reading »