The WTOs DSU Article 23 as Guiding Principle for the Systemic Interpretation of International Investment Agreements in the Light of TRIPs

Simon Klopschinski

Journal of International Economic Law, 2016, vol. 19, issue 1, 211-239

Abstract: The Philip Morris tobacco group and the pharmaceutical company Eli Lilly claim in investment disputes initiated against Uruguay, Australia, and Canada that the respective host states did not treat their intellectual property rights in accordance with the relevant investment treaties. Since the claimants also substantiate their assertions by alleging violations of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) committed by the host states, the need to better understand the interaction between investment treaties and TRIPs has increased significantly. This article suggests using Article 23 of the WTO Dispute Settlement Understanding (DSU) as a guiding principle for the systemic interpretation of investment treaties in the light of TRIPs. The provision as such prohibits the enforcement of WTO law outside the WTO Dispute Settlement Body. In the context of systemic interpretation, DSU Article 23 instructs arbitral tribunals not to use investment treaties as vehicles for redressing violations of TRIPs committed by the host state.

Date: 2016
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