Investor-State Dispute Settlement and the Trans-Pacific Partnership

Abstract

This chapter critically examines the intellectual property rights holders' growing use of investor-state dispute settlement (ISDS) to resolve international intellectual property disputes. It begins by highlighting the criticisms of ISDS, including those that are related to the arbitration process, the arbitrators' interpretations and final arbitral outcomes. The chapter then examines the various upgrades that the Trans-Pacific Partnership (TPP) Agreement has provided to the ISDS mechanism. It concludes by outlining the conceptual and institutional improvements that could strengthen ISDS. This chapter retains its analytical focus on the TPP investment chapter despite the United States' withdrawal from the pact in January 2017. The retained focus is due largely to the adoption of that chapter as part of the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), which was established among the eleven remaining TPP partners in January 2018. The only provisions in the original investment chapter that the CPTPP has suspended are those concerning "investment agreement" and "investment authorisation."