Intellectual property (IP) protection in international investment protection treaties is nothing new – it can be found in the first modern treaty of such kind dating back to 1959. However, arbitration disputes involving IP issues is a very recent and fancy trend. The first case known to wider public comes from 2012. Since knowledge-based products, be they innovative and contain patents or be they creative and contain copyrights, are the grounds of every contemporary and successful company, they also build the fundament of national economies. If more knowledge intensive products and services come to the market, more issues related to this specific type of products arise. Of special relevance are those disputes which are facilitated due to the internet created digital market, globalisation, and international business expansion. Information products are difficult to protect because of their non-material nature and possibility to be used by many persons at the same time without decreasing such information “product’s” value. To protect such products, one obtains rights to exclude others from exploitation of these creations. This is called intellectual property right. As there are plenty of global companies with wide spectrum of international transactions and investor-type of commercial activities involving also IP embodied products or services, investment protection and IP protection converge. They meet under investment protection treaties and thereby also under applicable arbitration rules. What are the IP principles relevant to investor and investment arbitration? How can IP be admitted to be an investment and thus protected under the two-step test – firstly, by the international investment treaties (whether bilateral or multilateral, only for purpose to protect investment, or be they combined with economic aspects of inter-state cooperation) and secondly, by the arbitration rules? Generally, investment protection treaties allow to interpret IP as “an investment”. It is also admitted that under ICSID Convention Art. 25 it would be possible to take IP under its protection.
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