Public Policy Considerations in Intellectual Property-Related International Investment Arbitration

In the investment arbitration Philip Morris v. Uruguay the arbitral tribunal rejected Philip Morris’ claim that Uruguay’s anti-smoking legislation expropriated the tobacco company’s trademarks. In its reasoning the tribunal largely deferred to Uruguay’s policy decision to curtail tobacco companies’ business operations for the purpose of enhancing public health. Philip Morris v. Uruguay raises the question if there are, apart from public health, other public policy considerations which the tribunal should have given more weight to, e.g. the promotion of foreign investment and the protection of intellectual property (IP). The article explores the concept of ‘public policy’ and how IP law, WTO law as well as international investment law, i.e. the legal regimes relevant to IP-related investment arbitration, deal with public policy considerations. The article also reviews the handling of public policy considerations in the IP-related investment arbitrations Philip Morris v. Uruguay, Eli Lilly v. Canada as well as Bridgestone v. Panama.