Ip Rights Under Investment Agreements : The Trips-Plus Implications for Enforcement and Protection of Public Interest

The proliferation of investment and intellectual property (IP) agreements recently has been accompanied by an increasing number and expanded scope of investment disputes. The agreements give rise to various issues that particularly affect developing countries. One of the issues that has recently started to influence the negotiations for new investment agreements involves the question of the status of IP rights and the impact of investment agreements on the rights, obligations and regulatory discretions of countries under the Agreement on Trade-Related Aspect of Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO).IP rights validly acquired in accordance with the domestic law can constitute investment. Domestic law determines the scope, content and form of IP rights that have the characteristics of investment. However, the protection of IP rights under investment agreements gives rise to a TRIPS-plus impact on developing countries in the determination of the scope, the availability and validity of IP rights that constitute investment assets. The investment standards also protect for the activities associated of investment including the acquisition, protection and enforcement of IP rights.The extent of the impact of investment agreements on the flexibilities and obligations of developing countries under the TRIPS Agreement varies depending on the language of each agreement. However, one general observation of investment agreements is that they leave government measures open for challenge by utilising the mechanisms for the settlement of investment disputes. In the absence of a clear exclusion of IP disputes from the scope of an investment dispute settlement, arbitration tribunals should give considerable weight to the existence of effective settlement mechanisms, with specialized expertise, and legal procedures for IP rights. IP issues have their own dimension, jurisprudence and political economy completely different from investments. Finally, the developing countries should adequately consider the provisions of investment agreements during negotiation and renewal of existing agreements in order to limit the protection of IP rights to the TRIPS and other agreements and their respective domestic laws