Research Paper 8, August 2006

IP rights under investment agreements: The TRIPs-plus implications for enforcement and protection of public interest.

The proliferation of investment and IP agreements raises fundamental questions on the relationship between such agreements and the implementation of national policies for economic development. The agreements may support technologically sophisticated and competitive industries of the developed countries. However, the industries in developing countries that do not have significant assets allocated in different jurisdictions do not gain a comparable advantage from these agreements. Investment agreements especially are rare among developed countries. There are, however, several investment agreements among developing countries. Current IP agreements similarly reflect the proactive move from developed countries to influence the IP-related policies through bilateral agreements and multilateral treaties negotiated in the World Intellectual Property Organization (WIPO).

The research builds on the South Centre’s Analytical Note on ‘Intellectual Property in Investment Agreements: The TRIPS-plus Implications for Developing Countries’. The Analytical Note examined the trends and current developments on IP rights under investment agreements and the implications of the emerging approaches relating to the fair and equitable treatment and the national and most-favoured nation (MFN) treatment in investment agreements for the overall regimes for the protection of IP. This Research Paper primarily deals with public interest, competition, performance requirements and enforcement-related IP issues under investment agreements.

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