Effects of Combined Hedging

Abstract

This chapter provides a broad systemic overview of the regimes that regulate intellectual property and hedge exclusivity at the international level, focusing on the interplay of some of the core constitutional hedges in the international IP, investment law, and human rights fields. Such hedges include concepts of private rights (as well as negative rights), concepts of minimum standards, non-discrimination protections, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) as a comprehensive supra-national code, and IP protection via broad investment concepts. The chapter then discusses some potential effects of accumulation—that is, the impact of situations in which several constitutional hedges overlap and operate together on a state's ability to regulate IP rights. For the protection conferred by international IP treaties—such as the Paris Convention and the Berne Convention, as well as TRIPS and free trade agreements (FTAs)—this follows from the minimum standards principle, where a later treaty does not override or extinguish existing protections but simply adds to them. This accumulation effect means that states have to consider all forms of protection when deciding on a measure that potentially interferes with IP rights.