188 Klopschinski, The Protection of Intellectual Property by International Investment Treaties (no. 17) 65–7. See also on the applicability of the second sentence of Article 1.1 of TRIPS to international treaties: ibid. 70(3); and Grosse Ruse-Khan, „International Investment Protection and Intellectual Property” (No. 17) 62. Even if a Contracting State is bound under international law only by the international treaty, which is the case with the Kingdom`s IIA, the second sentence of Article 1(1) of the TRIPS Agreement applies, since in such cases there is a sufficient connection with the „law” of the Contracting State. In the specific case of an IIA, the treaty affects the domestic law of a Contracting State at the latest where the host State is required to make an arbitral award that subjects the State (on the basis of the IIA) either to the payment of damages or to specific performance, which may take the form, for example, of a stay of the law. This is what Philip Morris demanded of Uruguay and Australia. (p.
28) 2.18 At the time of writing, the United States has bilateral free trade agreements with twenty countries43 and other agreements are being discussed and negotiated with other countries in various parts of the world. Since the Trump administration took office, a more critical approach to international norm-setting seems to dominate U.S. foreign policy – especially when it comes to multilateral and regional initiatives. In what could generally be described as a kind of „safeguard clause,” the US BIT model takes the same approach – but uses the TRIPS Agreement as a basic criterion. This, of course, raises the question of how an investment court should apply these clauses when confronted with arguments that the host State has imposed an intellectual property restriction covered by the clause in a manner that constitutes expropriation. As we will discuss in more detail in Chapter 7, these clauses do appear to require the tribunal to verify compliance with the TRIPS Agreement or international intellectual property standards – in order to determine whether the door is open to effectively apply the expropriation standards to the host State`s national measure (p. 54).177 4 See New Zealand`s Foreign Affairs and Trade website at (accessed January 18, 2018). Grosse Ruse-Khan H (2014) Litigating intellectual property rights in investor-state arbitration: from plain packaging to patent revocation Max Planck Institute for Innovation and Competition Research Paper No. 14-13 The article is divided into three main parts.
The first part (Sections 2 and 3) briefly examines the role of national laws and courts in the development of the national intellectual property regime and analyses whether national laws play a role in investment arbitration. Part Two (§ 4) analyses the role of national laws in determining the legality and scope of investments in intellectual property. This is achieved through the analysis of the language used in several IIAs and the interpretation of that language by arbitral tribunals to confirm the role of national laws […].