This work is part of the Oxford International Arbitration Series, which is handsomely produced, suitably highly priced, and intended largely for practitioners in the lucrative area of investment arbitration. This book focuses upon the narrow area of investment arbitration of disputes involving intellectual property. However, it stands out, for while fulfilling the needs of practitioners, it offers a deep and satisfying academic analysis of an intricate aspect of international investment law. Each of the three authors had individually done considerable work in this area before their joint effort, and their mastery of the subject is constantly made evident in its pages.
Unlike other areas of investment arbitration, there are few disputes involving intellectual property and the book deals with the four relevant awards. Consequently, the book often anticipates issues and discusses possible future disputes. This futuristic element lends a charm to the work as such an element is comprehensively discussed in the context of both existing foreign investment and intellectual property law. Complexity also arises because intellectual property itself is created by domestic law through grants by the State, as in the case of patents; domestic law, therefore, features more strongly in the area. But international instruments, such as the TRIPS instrument of the WTO, impact on the subject. The work also has to consider the newer type of investment treaties that seek to provide regulatory space for States to control matters of public interest. The treaties also include a large number of defences to liability, which erode considerably the possibility of successful claims by holders of intellectual property against government measures. The potential for policy clashes in the area are many. Both intellectual property law and international investment law involve the balancing of interests, and the difficulties that arise when they interact are intense. The book works through these intricate areas with great competence.
The authors raise the tantalising issue of drugs for the Covid pandemic. It would have been good if there had been a lengthier treatment of the subject. Some commentators anticipate several arbitrations against States as their legislation on lockouts and other measures to deal with the pandemic would inevitably lead to disputes, but this has yet to happen in any significant way and the chance of success of such litigation is remote. Perhaps the authors could have said more on this. There is reference to German literature, as is to be expected, but there is a paucity of reference to the writings of those who have taken alternative views on many issues of international investment law. This is a wish not a defect. Another wish is that the book had been written as a text for a postgraduate course on the subject.
The work is outstanding. It could be looked upon as a complete text in itself on international investment law as, in the context of dealing with disputes under investment treaties involving intellectual property, it comprehensively explains the field of the law in which such conflicts occur, or could occur. In addition, it provides many insights into intellectual property law and public international law. It deserves a wider readership than the field its title suggests.