Human rights and intellectual property in investor to state dispute settlement

The position of human rights in intellectual property (IP) related investor-state dispute settlement (ISDS) has been the subject of prolific scholarly debate. This chapter focuses on the overlap of human rights, IP and international investment agreements (IIAs). It evaluates the impact human rights have had on the relevant ISDS practices and critically examines possible reasons for the increasing overlaps. It rejects human rights proportionality as a solution to increase the legitimacy of investment treaty arbitration. The chapter posits that –pending more profound reform of the whole investment arbitration system – the way forward is to decrease the overlaps through IIA design and to develop deference towards host state legislature as an approach in ISDS, especially through the doctrine of margin of appreciation.