Intellectual Property has always been at the heart of international economic governance. Indeed, the 1883 Paris Convention and the 1886 Berne Convention are commonly considered the first instances of international economic regulation. Hence, although the negotiation and adoption of the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) at the WTO and the inclusion of Intellectual Property (IP) rights among the ‘investments’ often covered under international investment agreements seem to have taken some by surprise, this convergence appeared inscribed in the genealogy of the subject. Many scholars have already paid attention to the relationship between trade, IP and investment, but the ‘technical’ issues that litigation in investment arbitration of IP rights (regulated at the national, regional and international level) might generate have apparently gone unnoticed. This article argues that further integration between the two regimes at the dispute settlement level is not desirable in practice for technical reasons. IP law and governance are highly fragmented and allocated among different fora at the international level. This situation is also reflected in the lack of agreement among states on several IP issues. The litigation of IP rights in investment disputes adds to this fragmentation instead of diminishing it and it appears as an attempt to unduly circumvent the discussions of IP questions taking place in intergovernmental fora.
Journal of World Trade