Litigating Intellectual Property Issues in Investor-State Dispute Settlement: A Jurisdictional Conflict
Pratyush Nath Upreti
This article attempts to show a jurisdictional conflict, while litigating intellectual property in investor-state dispute settlement (ISDS). At the global level, the World Trade Organization (WTO) dispute settlement body has jurisdiction to deal with any matters related to intellectual property. On the contrary, ISDS exclusively settles a dispute arising from an investment. The recent International Investment Agreements reveals that ‘intellectual property’ is part of the definition of investment, giving way for an investor to challenge intellectual property issues in ISDS. This departure of forum shifting from WTO Dispute Settlement Understanding to ISDS can be seen through the lenses of res judicata and doctrine of estoppel. However, the impact of such jurisdictional conflicts awaits future claimants.
Link to the original Article: ‘Litigating Intellectual Property Issues in Investor-State Dispute Settlement: A Jurisdictional Conflict’ on Global Trade and Customs Journal, Vol 11, Issue 7/8, pp 343-351(2016), Kluwer Law International Publication.