The Protection of Intellectual Property Rights through Bilateral Investment Treaties: Is there a TRIPS-plus Dimension?

This paper analyses the scope of bilateral investment treaties for the protection of investors’ intellectual property rights. Given the ongoing discussion about TRIPS-plus issues in bilateral treaties for international economic regulation, bilateral investment treaties have also been confronted with the claim that they add another layer of rights on top of the TRIPS Agreement. With this question in mind, the paper reviews key standards of bilateral investment treaties of possible relevance for the protection of intellectual property rights, and three key issues to which these standards may typically be applied in host states, i.e. compulsory licences, performance requirements, and piracy of intellectual property rights. It shows that bilateral investment treaties do overreach the standards provided for under the TRIPS Agreement on certain points. Nevertheless, it becomes obvious that a discussion of the relationship between investment law as applicable to investors’ intellectual property rights and intellectual property law from the angle of a TRIPS-plus dimension does not reach the heart of the matter. The main reason for overlap and incongruence between bilateral investment treaties and the TRIPS Agreement stems from their own regulatory intents and the fact that these different areas of international law have grown in a fragmented manner over the last 50 years, without ever having been integrated in a coherent manner. The task to be accomplished consists in constructing a better definition of the borderlines of investment law and intellectual property law with the aim of removing inconsistencies, as well as providing for interaction that mutually reinforces the intent of both areas of law. The paper closes with a few suggestions to that end.