Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.
Protection of trademarks, patents, copyrights, industrial designs, and other types of IP mainly are covered by TRIPS rules. TRIPS also set minimum standards of protection, which constitutes a floor and not a ceiling as to adequate IPR protection. TRIPS thus provides members with the right to adopt higher and more extensive levels of protection if they willingly do so.
Beyond the trade context, IPRs as a form of investment also fall under the scope of application of BITs and investment provisions of RTAs (including FTAs and Economic Partnership Agreements). The qualification of IPRs as covered investments under most international investment agreements is far from being a novelty. Bilateral and multilateral investment treaties and investment chapters of RTAs usually do not set specific substantial standards on intellectual property, but they protect the rights of investors who use intellectual property as a mode of investment.
Case law also recognizes intellectual property rights as an “investment.” In the Case Shell Brands International AG and Shell Nicaragua S.A. v. the Republic of Nicaragua (ICSID Case No. ARB/06/14) two companies connected to the petrochemical giant Shell Group, filed a claim against the Government of Nicaragua for breach of the Netherlands-Nicaragua bilateral investment treaty in response to an alleged expropriation of their logo and brand name. According to Shell, Nicaragua seized Shell’s trademarks in an effort to enforce a 489 Million US Dollar judgment handed down in 2002 by a Nicaraguan Court.
In some treaties, the term “property” was simply extended to such intangible rights, while in others explicit reference was made to patents, copyrights, and trademarks. In some cases, the reference to IPRs appears in the preamble of BITs.
For example, the 1999 US-Armenia BIT recognizes intellectual property as an investment, which includes, inter alia, rights relating to literary and artistic works, including sound recordings; inventions in all fields of human endeavor; industrial designs; semiconductor mask works; trade secrets, know-how, and confidential business information; and trademarks, service marks, and trade names.
A detailed illustrative list of covered IPRs is provided for under the 2018 Armenia – Japan BIT. For the purposes of the Treaty: the term “investment” means every kind of asset owned or controlled, directly or indirectly, by an investor, including:
“… intellectual property rights, including copyrights and related rights, patent rights and rights relating to utility models, trademarks, industrial designs, layout designs of integrated circuits, new varieties of plants, trade names, indications of source or geographical indications, and undisclosed information.”
Armenia is a member of more than 30 BIT and the vast majority of them recognize IP rights as an “investment” precisely. At the same time, There are four mechanisms provided by Armenia to protect investors:
- investment legislation;
- investment contracts;
- bilateral investment treaties; and
- multilateral investment treaties.
For many years investment contracts between investors and host states (or state entities) often involve substantial investment of capital. Investors seek reassurance that the contractual protections on the basis of which they have invested will remain in place for the life of their investment. In order to achieve this, investment contracts often contain stabilization clauses (freezing clauses, intangibility clauses, economic equilibrium clauses, allocation of burden clauses, and hybrid clauses).
There are hundreds BITs and MIT’s in force, in total, where one contracting party is Armenia. Although there is no standard form for BITs, many contain broadly similar protections.
BITs and MITs generally contain similar investor protections. The most common protections found in these instruments are:
- protection from expropriation without compensation
- MFN provisions
- fair and equitable treatment;
- full protection and security; and
- free transfer of investment and returns.