TITLE: Bilateral investment
agreements: Agents of new global standards for the
protection of intellectual property rights? AUTHOR: Carlos
M Correa DATE: August 2004 URL:
http://www.grain.org/briefings/?id=186
NOTE:
This study was commissioned by GRAIN as an independent
exploration into the implications of bilateral investment
treaties, and free trade agreements with chapters on
investment, in terms of international standards for the
protection of intellectual property rights. Below we present
the table of contents and executive summary. A Spanish
translation of the full study will be available soon.
BILATERAL INVESTMENT
AGREEMENTS:
AGENTS OF NEW GLOBAL STANDARDS FOR THE PROTECTION OF INTELLECTUAL PROPERTY RIGHTS?
by Carlos M. Correa
August 2004
30 pages
Contents
Executive summary
Introduction
1. Assets as investments
2. IPRs
as investments
- Unregistered IPRs
- IPR
applications
- Subject matter not protected in the
host country but protected in the investor's or other
countries
3. National treatment
4.
Most-favoured-nation clause
5. Fair and equitable
treatment
6. Compulsory licenses
7.
Revocation/forfeiture
8. Parallel imports
9.
Highest international standards
10. Genetic resources
in investment agreements
- Contracts or permits to
access or exploit genetic resources
- Materials
collected under a contract or permit to obtain access to
genetic resources
- Materials received under material
transfer agreements and license contracts
- Seed
technology in use agreements, sales agreements or other
end-user contracts and at the post-harvest stage
-
Lack of effective enforcement of IPRs
- Access to
genomic data on a "non-commercial use only" basis
-
Access to technology and benefit sharing
11. Right to
sue the State
Conclusions
References
Executive summary
Developing countries have entered into a large number of bilateral investment treaties (BITs) as well as free trade agreements (FTAs) that include explicit obligations for the protection of intellectual property rights as "investments". These agreements fall outside the arena of multilateral standard-setting on intellectual property rights, and are being strategically pushed by developed countries to advance their industries' economic interests.
This study examines whether and how bilateral and regional investment instruments increase the scope and availability of IPR protection beyond current standards, reduce flexibilities available to developing countries under international treaties and can be used to expand the application in their territories of IPRs over biodiversity.
The study finds that:
* Bilateral investment treaties and investment chapters of free trade agreements go beyond international norms since they extend to intellectual property rights not covered by the World Trade Organisation (WTO) TRIPS Agreement and incorporate the "national treatment" principle without the exceptions provided for under international treaties.
* It is unclear the extent to which rights granted by investment agreements may be used to substantiate IPR claims through investment-related disputes. Areas of particular concern are the granting of compulsory licenses, since investors would be able to claim an economic loss, and the enforcement of disclosure of origin principles to prevent biopiracy, which may be challenged by investors as incompatible with international law.
* Biological materials collected under an access permit may be considered the "property" of the collector who, under a broad definition of investment, may claim protection as an investor with regard to the materials.
* There is no "international standard" relating to the protection of IPRs as an investment that could be invoked in the context of bilateral obligations to comply with "the highest international standards" imposed in some investment agreements.
* Because of the grey areas that investment agreements generate, they provide room for investment-related disputes to induce changes in national IPR legislation of developing countries, even if that legislation is TRIPS-compliant.
* The "most favoured nation" clauses in BITs and FTAs contribute to a global elevation of IPR protection standards. If negotiations on investment were initiated in the framework of the WTO, for instance, pressure to replicate the highest levels of investment protection for IPRs, as currently found in the bilateral treaties, can be expected.
The full study is available at
http://www.grain.org/briefings/?id=186.
A background note, from GRAIN, about this study is available
at
http://www.grain.org/rights/?id=59.
Spanish translation coming soon.