This is the first book-length treatment (based on the first author's doctoral thesis, published in 2011) of the issues raised by recent cases in international investment arbitration dealing with intellectual property rights (IPRs). It is a timely work as the international protection of IPRs via investment law has attracted scholarly attention for some time now and its practical relevance will only increase—one need only think of the potential legal challenges that may result from announced plans to issue TRIPS waivers due to the COVID-19 pandemic or the issuance of compulsory licences in the context of vaccines.
The book can be contextualised as a scholarly response to recent high-profile cases which have shown that a turn to investor–State dispute settlement (ISDS) raises a myriad of novel legal issues with public policy implications. Examples include the prominent cases involving the tobacco company Philip Morris, which turned to investment arbitration over tobacco regulation affecting the company's trademarks in two separate cases against Australia and Uruguay. Possible future cases could involve the issuance of compulsory licences, the rejection of pharmaceutical patents, and the commission of widespread copyright violations by State-controlled entities, among others.
The study under review analyses all these issues and offers a systematic in-depth study of the protection of IPRs under international investment law. It follows a clear structure. After a general introduction to the book, Chapter 2 provides necessary background and context to the fields of international investment law and IP law and introduces the key questions related to their interaction. Chapter 3 looks at the specifics of ISDS with regard to IP disputes and reviews recent cases brought before investment tribunals. Chapter 4 then deals with the fundamental question concerning the jurisdiction of ISDS, ie when and under what conditions do IPRs satisfy the jurisdictional criteria for ‘investment’ according to the respective investment treaties. Chapters 5–7 then look at the common protection standards found in IIAs, ie relative treatment standards (Chapter 5), absolute standards of treatment (Chapter 6) and expropriation (Chapter 7). The final chapter concludes with an outlook on the general dynamics of international investment law and discusses the gradually developing IP–investment interface.
The legal issues addressed in this book are complex and, because of the limited existing case law, at times hypothetical. The authors go beyond existing scholarship by addressing questions that have not yet arisen in practice but which are likely to be relevant in the near future. Here, the authors are careful in their analysis not to drift into abstract scenarios but focus on issues which could be expected to come before a tribunal in practice and base their arguments on a solid understanding of the dynamics and jurisprudence that will influence future decisions. All chapters are rich and comprehensive in references and citations to existing cases and literature. Readers will also benefit from the systematic, broad and exhaustive treatment of all relevant legal questions with respect to the relationship between IP and investment law. Whilst those closely following existing debates on the topic will find elements of the discussion familiar, there is a wealth of innovative material.
There is only one aspect of the book that receives comparatively short shrift. The authors do not engage in sufficient detail with the wider public policy concerns posed by the increased use of ISDS, which provides an investor-friendly forum in which to challenge public policy measures taken by States to protect public health and access to medicines. One could also view this as another instance of a shift away from multilateral (WTO TRIPS and other IP treaties) minimum standards towards the bilateral level, where multilateral standards can potentially be circumvented. It would have also been interesting for the authors to have engaged in a broader critique of international IP protection and how TRIPS and ISDS seem to cement a very specific concept of IP into domestic legal systems. A response to the critiques voiced by recent law and political economy (LPE) approaches, which draw on the cases discussed in this book when pointing to the role of law and lawyers in the reproduction of (global) inequality, would also have been beneficial.
Overall, readers from both an international investment law and IP law background will benefit from the very accessible background chapter, which is especially helpful for those not too familiar with the other's field of law. This allows the book to find common ground and a mutual understanding across these legal regimes, which will surely enhance the ongoing debates and will also be of use to legal practitioners and decision-makers called upon to decide matters of IP in investment arbitration.
In conclusion, this book is, without a doubt, a masterly achievement. It is certain to become an instant classic for all scholars and practitioners interested in and working at the interface between international investment arbitration and IP law.
