International Investor-State Intellectual Property Disputes and its effects on India’s commitment to International and National Obligations

Abstract

International trade in goods and services in the global economy has reached unprecedented heights having recovered from the 1997 and 2008 financial crises. This has augured well for meeting the objectives of the Bretton Woods institutions for promoting international trade notwithstanding the rise of protectionism and political events such as Brexit. At the same time, the principles of international trade such as most favoured nation and national treatment have been grafted into international intellectual property texts such as the Paris, Berne and the TRIPS Agreement. Other principles such as fair and equitable treatment and indirect expropriation are also increasingly being included in bilateral investment treaties. Expropriation of investment through regulatory measures under municipal law as witnessed in plain packaging legislations have triggered recent investor-state disputes notably Eli Lilly- Canada, Philip Morris- Australia and Philip Morris- Uruguay. These disputes have raised questions regarding the inclusion of intellectual property as a form of investment in bilateral investment treaties. India, which is a party to more than eighty such treaties, has also included the same under article 1.4(f) of its Model BIT 2015. These developments must be seen in the background of India playing an active role during the Doha Ministerial Conference of the World Trade Organization in 2001 to locate intellectual property outside the framework of limited private monopoly rights. While India has prior experience in intellectual property disputes before the WTO Dispute Settlement Body, investor - state disputes which follow the principles of international investment law are unexplored terrain. The paper seeks to analyze India’s commitment to the Doha Round through the lens of the above recent investment treaty decisions.