A TWAIL critique of intellectual property and related disputes in investor-state dispute settlement

Abstract

This article analyses intellectual property (IP) disputes in investor-state dispute settlement (ISDS) through the lenses of Third World approaches to international law (TWAIL) and how a reformist TWAIL approach might be used to address the concerns related to IP-ISDS disputes. It has three objectives. First, to discuss TWAIL and its readings of IP. Using the TWAIL framework, the article illustrates TWAILers’ positions on the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) are an ideologist project that aims to transplant IP norms to developing countries and the role of actors, particularly industrialist lobbying in the making of international IP norms. Despite such views, the compromise that was made in the form of TRIPS’ flexibilities being threatened by ISDS mechanisms. Thus, the second objective of this article is to demonstrate the implications that recent IP-related ISDS disputes could potentially undermine the balance achieved through TRIPS. The last objective is to demonstrate how the Global South is regaining its sovereign regulatory control through a reformist approach.