Abstract Recent global events have prompted questions regarding the extent to which states can regulate intellectual property rights in response to armed conflicts and pandemics. While some of the issues raised by these events have been addressed extensively in the context of WTO law, especially as it relates to the scope of the security exceptions in both the GATT and the TRIPS Agreement, relatively little has been said regarding these issues as they affect the protection of intellectual property rights in the context of international investment law. While some of the provisions on security exceptions in investment treaties are modelled on the security exceptions in WTO Agreements, others are quite distinct and accord varying levels of discretion to host states when it comes to taking measures to protect their essential security interests. Moreover, some of the newer investment treaties explicitly provide that the provisions on security exceptions (and essential security interests) are self-judging and non-justiciable. Drawing on arbitral practice, including the recent decision in Seda v. Columbia, this article therefore seeks to analyse the implications of the different types of provisions on essential security interests in investment treaties for the ability of host states to implement measures to regulate intellectual property rights during armed conflicts, pandemics, and other emergencies.
Emmanuel Kolawole Oke (Tue,) studied this question.