This Article focuses on the growing use of investor-state dispute settlement (“ISDS”) in the intellectual property area and explores what reforms can be undertaken to improve this mechanism. It begins by highlighting the substantive problems posed by ISDS in this area. It further examines the mechanism’s deleterious impact on the multilateral intellectual property system built upon the TRIPS Agreement. This Article then calls for greater crossfertilization between ISDS and the WTO system. Specifically, it advances a two-tier proposal calling for institutional reforms concerning arbitral panels while advocating the establishment of a new ISDS appellate body. This proposal draws on both the European Union’s proposal for the investment chapter in the Transatlantic Trade and Investment Partnership Agreement and the existing WTO dispute settlement process. This Article concludes by assessing the strengths and limitations of this proposal and offers some preliminary responses to its critics.
Crossfertilizing ISDS with TRIPS,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol49/iss2/5