MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING HANOILAW UNIVERSITY LUONG MAI LINH 453055 PROTECTION OF INTELLECTUAL PROPERTY RIGHTS THROUGH INVESTMENT TREATIES MINISTRY OF JUSTICE MINISTRY OF EDUCATION AND TRAINING HANOILAW UNIVERSITY LUONG MATLINH 453055 PROTECTION OF INTELLECTUAL PROPERTY RIGHTS THROUGH INVESTMENT TREATIES GRADUATION THESIS SUPERVISOR LLM. NGO TRONG QUAN Hanoi - 2024 ii STATEMENT OF AUTHORSHIP 1 with this, declare that I have written the submitted Bachelor’s Thess independently. The conclusons and datain the Bachelor's Thess are truthful and reliable. Confirmation of supervisor Author ofBachelor's Thess LLM.
Ngo Trong Quan Luong Mai Linh iii ACKNOWLEDGEMENTS With the culmination of my graduation thesis, I express my sincere appreciation to those who have been instrumental in the realisation of this research and throughout my academic journey. I want to express my gratitude to my thesis supervisor, LLM Ngo Trong Quan, for his kind acceptance in supervising my thesis, for his patience in helping me with the draft of my thesis andfor giving me insigHffil comments. His immense knowledge has significantly shaped this shidy. I would like to thank the professors, lechers and library staff of Hanoi Law Universityfor their enthusiastic mentorship and insightfid lessons cdiaing my study.
I am grafeftl for being promptiy provided the necessary information regarding the thesis by Hanoi Law University, which motivated me to complete the thesis on time. Without their help. I would encounter many difficulties in implementing my thesis research Iam gratefil to my family and friends (especially Ngo Thanh Hang) who have encouraged and supported me diaing my study and thesis completion. To my family, Iam indebtedfor their endless love, encotnagement, and understanding.
I am deeply thanlftl to my friends and colleagues for their companionship and the countless discussions that enriched my knowledge of the subject matter This thesis would not have been possible without the collective efforts and encouragement of all those mentioned and many others who have touched my academic journey in various ways. Thankyoufor your invaluable contributions. Luong Mai Linh Hanoi Law University, 2024 iv LIST OF ABBRE VIATIONS AANZFTA ASEAN-Australia-New Zealand Free Trade Area ACIA ASEAN Comprehensive Investment Agreement BIT Bilateral Investment Treaty CETA EU-Canada Comprehensive Economic and Trade Agreement CLs Compulsory Licenses CPTPP Comprehensive and Progressive Agreement for Trans- Pacific Partnership DR-CAFTA Dominican Republic-C entral American Free Trade Agreement eg. exempli gratia (for example) etc et cetera (and soforth) EVIPA EU - Viet Nam Investment Protection Agreement FCN Friendship, Commerce and Navigation FDI foreign direct investment FET fair and equitable treatment FTAs Free Trade Agreements Le.
id est (that is) intellectual property intellectual property right investor-state dispute settlement low-to-middle income countries national and most-favored-nation treatment Ministry of Planning and Investment North American Free Trade Agreement page para. :_ paragraph RCEP : Regional Comprehensive Economic Partnership Agreement SAFTA :_ Ñingapore- Australia Free Trade Agreement SPR : Single Presentation Requirement SSDS : State-to-State Dispute Settlement TIP : Treaties with Investment Provision TPP : Trans-Pacific Partnership TTMRA : Trans-Tasman Mutual Recognition Arrangement TRIPs : Agreement on Trade-Related Aspects of Intellectual Property Rights UNCTAD : United Nations Conference on Trade and Development WHO : World Health Organization WIPO : World Intellectual Property Organization WTO : World Trade Organization w TABLE OF CONTENTS STATEMENT OF AUTHORSHIP ACKNOWLEDGEMENTS LIST OF ABBREVIATIONS. TABLE OF CONTENTS INTRODUCTION. TAs Tiive sin ent 0168 si c0gi0220160002i046:05ã842Gqjgukissaiaerif T11 DWWHĐNEtsgitcsrsdioaSbGBB/GSGSEGGSGGERNiiQREailitogiftshiesoausjf 61:2 TH:töfJIDAERETGHIEsssucggoiistisdiiiiiiigaiistogtazassstseqasspaaigssuf 1:13: T/28s.4 The scope of application of investment treafies.
Intellectual property righfs. e ees eeneeneeenteneennenneenneeeteeneeeed 3 SS 2D Diana onaiics. to0 ste teen sass Se, US Oe Neier ae a Se 1. The legal characteristic of intellectual property.
The protection of IPRs in investment treaties. The inclusion of IPRs in investment defiyitions.2 The relevant standards of treatmentfor protecting IPRs. The use of investor-state dispute settlementfor protecting IPRs.21 CONCLUSION FOR CHAPTER 1. CHAPTER 2: ARBITRAL PRACTICE ON PROTECTION OF INTELLECTUAL PROPERTY RIGHTS THROUGH INVESTMENT TREATIES 2.
Investment disputes related to tradem ark. The factual backgTOMidb.g0 5gAndtgirtitsesuictags eae DET iA VA PIV gS Soo Sih 9 a Ses ade BOS. Investment disputes related to patenfs.35 35:1: Dias fat tial Bath rOUnAMs iol xi5sã6aisiieSa0,1Easillixlx0ngaascAgiả675. DSS MACY ATARI ES 2 copes ea, St att came TSes lA te Be Stee CONCLUSION FOR CHAPTER 2.
CHAPTER 3: SOME RECOMMENDATIONS FOR VIETNAM TO AVOID IPR-RELATED DISPUTES THROUGH INVESTMENT tin n0 le 42 3. Negotiation and drafting of investment treaties. Exclusion of IPR-related measures from eXpropriafiow. Inclusion of public interest provisiows.
Issuance and Implemention of domestic laWs,. Settlement of investor-state đisputes. CONCLUSION FOR CHAPTER 3 CONCLUSION LIST OF REFERENCES INTRODUCTION 1. The necessity of research Over the last few decades, international investment law has rapidly progressed, characterized by the expansion of a complex network of investment agreements and a substantial body of case law resulting from investor-state arbitrations.
This has given tise to an influential field of international law that intersects with private enterprise, cross-border capital, investment flows, and the public policies of host states. Regarding the protection of intellectual property rights (IPRs), whereas international treaties like the Paris Convention or Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) specifically deal with intellectual property, investment treaties include intellectual property as a definition of investment, giving the investor an alternate forum to enforce their IPRs under international tribunal. Although the system of investor-state dispute settlement (SDS) emerged in the 1950s as part of bilateral trade and investment agreements}, since 2010, only some investors have started using investment treaties to defend their intellectual property rights against host state interventions through this ISDS mechanism? From a practical perspective, the trends of globalization and integration have created favorable conditions for extensive foreign investment in Vietnam. However, alongside the economic benefits, the government also faces challenges regarding investment disputes.
In the past decade, the ISDS mechanism has enabled foreign investors to bring claims against host states, raising concerns for legislators and the Vietnamese government regarding investment reception. According to statistics from the United Nations Conference on Trade and Development, there have been 696 known cases of international investment disputes. In Vietnam, there have been 13 cases where foreign investors have sued the Vietnamese government in international ! The Germany-Pakistan BIT is often cited as the world’s first BIT and dates back to 1959. See Marc Bungenberg (2016), “A History of bwestment Arbitration and Bwvestor- State Dispute Settlement in Gemuny”, CIGI ISA Paper No 12.
3 See Phalip Morris Prodirts SA & Abal Hermans SA. Oriental Republic of Uruguay ICSID Case No. ARB/O/7, Aotard (uly 8, 2016); 3 LMv cod Company v. The Government of Canada, UNCITRAL ICSID Case No.
UNCT/14/2, fuvard (Mar. 16,2017); Bridgestone Licensing Services, Inc. & Bridgestone Americas, Inc. tị Republic of Pemana,TCSID Case No.
ARB/16/34 , Decision on Expedited Objections (Dec. 2 arbitration? Furthermore, the number of investor notifications of intent to initiate proceedings is increasing. In 2016 alone, there were four investor notifications, not to mention cases where foreign investors initiated proceedings against local authorities. Regarding IPRs-related disputes, it is noteworthy that the challenged measures often share similarities in terms of public welfare.
Examples include the Tobacco Plain Packaging case (Philip Morris v. Australia 201), the patent invelidation based on utility testing case (Eli Lilly v. Canada 2013), and the disclosure of seismic data case (Hinarsson v. While Vietnam has not yet recorded any disputes related to IPRs protective measures through investment treaties, the increasing trend of international investment disputes, including complex and protracted cases with substantial compensation claims by foreign investors, is a cause for concer, especially for developing countries like that attract significant foreign investment.
In parallel with the practical situation, from a legal perspective, in fact, there are only afew cases in which IPRs lie at the core of investment arbitration, which has often been sought through claims of expropriation and fair and equitable treatment’. Among these few cases, tribunals tend to dismiss claims brought by investors® However, it is worth noting that despite the limited disputes, there have been numerous debates on this topic, primarily concerning the interaction between IPRs and ISDS or IPRs and international investment law’. In fact, there are few focused studies on developing solutions for host states regarding how to prevent and cope with IPRs-related disputes through investment treaties. While the majority of cases > See ups //mwestmentpolicy xnctad orgfawe stment-dispute-settlement/country/220hvietmam, accessed on 30/3/2024 3 Tran TÌM.
Nguyat, “Ture trung tranh chap đầu tư quốc tế và giã: quyét tranh chấp đầu tư quéc tế ở Việt Nam”, https mao} gov vzgtfcaccktuyetecjpt/Pagesjpho-bien-pl-doani.nghiep aspxiItemID=50, accessed ơn 30/3/2024 Ý Upreti Pratyush Nath (2021), Intellectual Property Rights mn Investor-State Dispute Settlement: Comecting the Dots through the Philip Morris, Eli Lilly and Bridgestone Aavards, The American Review of Buternational Arbitration Vol 31,p 342 ° Nguyen Thi Anh Tho & Nguyen Minh Huyen (2023), “Sntemational awvestment disputesrelated to intellectual property rights - Some notes for Vitram: ( Tranh chấp đầu tư quốc te liền quan tới quyền sở hữu trí tuệ - Một số Xru ý đôi với Việt Nam)”, Legal Science Journal, Vb\ 1 ,p 29. ` Pratyush Nath Upreti (2022), 'Teeallactual Property Objectives in Intemational Investment Agreements”: Simon Klopschinski, Christopher Gibson, Haming Grosse Ruse-Khan (2020), ““The Protection of Intellectual Property Rights Under Intemational bwestment Law”? favor the host states, the risks following the resolution of the disputes still persist® Concerns of countries wanting to implement similar policies without being sued by investors still remain constantly?. Recommendations on preventive measures and how to deal with related disputes have not been thoroughly and extensively researched, especially in Vietnam. Therefore, through an analysis of disputes where investors use investment agreements to sue the host government to protect their intellectual property rights, the author will focus on synthesizing and analyzing considerations that the Vietnamese government should take into account to avoid being sued.
Domestic literature Due to the recently emerging case law, research on this topic in Vietnam is still limited. Some notable works include: 1. “International Investment Agreements and Protection of Intellectual Property Rights of Foreign Investors” by Ngo Trong Quan! explores the possibility of using the ISDS mechanism to litigate IPRs-related investment disputes. This article also provides extremely useful recommendations for the Vietnamese government to prevent similar claims during the negotiation of investment treaties and dispute settlement process.
* Just three months after the arbitration decision in Fi Lilly vị Canada, the Canadim Supreme Cowt made a significant clung? to ts establidued promise Amility doctrme in the AstraZeneca Canada Ine. This chang: represents a significant loosening of the doctrine , ndicating a shift in Canada's approach to patent protection and potentially impacting future disputes awolving plummaceutical conpaniss. See Baker, Brook K. and Geddes, Katrina (2017),““The Incredible Shrinking Victory: #E Lily v.
Canada, Success, Judicial Reversal, and Contaming Threats from Phamuceutical ISDS”, Loyola University Chicago Law Jornal, Vol. 49, Northeastem University School of Law Research Paper No. 481 * With the concem of being suing, Thailand and New Zealand took about 6-7 years to implement new policies about tobacco control (See: Cohen,J. ‘Phinpadagng of tobacco products: Lessons for the next round of impkmentng countries.
Tobacco Induced Diseases”, 18 (November), 94. hetps //doiorg/10 19332833/130379; Jane Kelsey, “Regulatory Chill: Learnings From New Zaaland’s Plan Packaging Tobacco Law”, UT Law Review Vohunt 17 (2) Special Issue : Plan Packaging of Tobacco Product Nov 24, 2017,page 23) , India constantly expressed concems about IP-related challengng neasires when issuing Compulsory Licenses ơn drug patent (See: Prabhash Ranjan (2017), “Phammaceutical Patents amd Expropriation in Indian Bilateral Investment Treaties”, Cambridge University Press https papers san com/sol3 fpapers fan tabstract_id=204610 lpaper-references-vidget ) ‘© Ngo Trang Quan (2023), “Các hiệp định đầu tư quốc ti và vin dé bảo hô quyền sở hữu trí tuệ của nhà đầu trrrước ngoài”, State cond Leow Review ,No 3(419) 4 2. “International investment disputes related to intellectual property rights - Some considerations for Vietnam” by Nguyen Thi Anh Tho and Nguyen Minh Huyen!!, aims to analyze several international investment disputes involving IPRs and assess their impacts on the State’s consideration in promulgating and making policies for the public interest, then examine the definition of “investment” in investment agreements compared to Vietnam.