투자조약과 지적재산권 보호: 한국의 투자조약 분석

Along with the development of related industries, the intellectual property rights (IPR) of foreign investors became an important issue. Due to the different levels of IPR protection, there is a possibility of IPR infringement by the policy measures taken by the host states. Fortunately, most investment treaties have included IPR as a kind of ‘investment’ protected by their substantive provisions. This means that foreign investors can rely on ISDS to pursue their rights protection. Thus, the investors can argue due process obligation and national treatment principle under the investment treaty regarding the host state’s domestic legal procedures. Also, regarding IPR protected by international IPR agreements, the norms of legitimate expectations, umbrella clause, most-favored-nation principle can be insisted based on BITs. Moreover, recent FTAs have incorporated TRIPS and other IPR agreements in their investment chapters, specifically in the provisions of safeguard, performance requirements, reservations and non-conforming measures. This trend is likely to be continued by the following investment treaties, and Korea’s BITs and FTAs are good examples. Further development of IPR provisions in investment treaties and active studies on this issue are necessary for Korea to prepare for future ISDS disputes.