Protecting Fundamental Values in International IP Disputes : Investor-State vs. WTO Adjudication

This article, written for a conference on improving investor-state dispute settlement (ISDS), compares the resolution of investor-state disputes under bilateral investment treaties and free trade agreements with investment chapters, with state-state dispute settlement under the World Trade Organizations' Dispute Settlement Understanding. It demonstrates that across five dimensions, (1) the framing of disputes; (2) the incentives of disputants; (3) the interests of the relevant institutions; (4) the structure and impact of the awards; and (5) the leverage associated with the procedures, ISDS is far more intrusive on regulatory authority than WTO dispute resolution. The article ends with suggestions for making ISDS more responsive to sovereign interests