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8 Outlook

Simon Klopschinski, Christopher S. Gibson, Henning Grosse Ruse-Khan

From: The Protection of Intellectual Property Rights Under International Investment Law

Simon Klopschinski, Christopher Gibson, Henning Grosse Ruse-Khan

From: Investment Claims (http://oxia.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. date: 03 December 2023

Intellectual property — International investment law — Host state law — Law of treaties

This concluding chapter reflects on, in form of an outlook, the future of IP-related investment claims in front of investor–state dispute settlement (ISDS) tribunals, as well as the IP–investment interface more broadly. It does so by first looking at developments in international investment and intellectual property (IP) law in general, and, secondly, at the specific issues that arise with regard to the protection of IP-related investments. Right holders have a range of options to ‘re-package’ investment protections to capture actions by private parties using their IP. Because the procedural protections available to investors often include ISDS, IP-owning investors can proactively engage in such re-packaging exercises. With this potential in mind, a lot will depend on how broad or narrow ISDS tribunals construe notions such as fair and equitable treatment (FET), full protection and security (FPS), or (judicial) expropriation. Another important determinant for the future of investment protection for IP rights is the existence of alternative avenues for taking action against host state interventions involving intellectual property rights.

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