Defining Intellectual Property as an Investment

Abstract

The question of when an intellectual property right should be defined as an investment has recently been addressed by investment tribunals in two recent cases. Using these two recent decisions as case studies, this chapter seeks to address two key questions. One, in deciding whether or not an intellectual property right should be defined as an investment, should contribution to the economic development of the host state be part of the objective criteria? Two, what role, if any, can Articles 7 and 8 of the TRIPS Agreement play in the determination of whether an intellectual property right should be defined as an investment pursuant to the objective criteria? The chapter proposes a minimalist approach to defining what constitutes an investment and it concludes with the view that, in determining whether or not an intellectual property right should be defined as an investment, the object and purpose of international investment law should be synchronised with the object and purpose of international intellectual property law.