Abstract
This paper develops and presents the idea of intellectual property investment functions as part of a broader narrative on the privatization of international law. Using jurisprudence and private law arguments the paper charts how early investment treaties and ICSID cases interacts with intellectual property investments and then go on to show the rise of contemporary Free Trade Agreements provisions that upend the understanding of intellectual property as an investment function. The advocates of the investment principles clearly sees no objection on the application of customary international law to investment, and by extent, the investment function of intellectual property. It must also be borne in mind, that, at the same time, those who are also advocating for more clarity and legal certainty in the international legal order, envisage a world where private rights and other factors of globalization see the application of international legal principles to intellectual property investments. Such application, they believe, can help to add legitimacy and give justification of global legal relations based on economic principles. The arguments in this article goes beyond merely theoretical musings or methods. They can also significantly impact the outcome of cases that have to consider the interaction of public international law and private law norms in relation to intellectual property, or other cases, under considerations at international tribunals. Hence, to offer an impartial assessment of such interaction, and to find answers to the privatization issue, it is imperative to fully understand the context and content of private law rights in international law, and what are some of the recourse options available to public international law. Moreover, it is equally fitting to develop and argue a new account of private rights to help explain the occurrence of the privatization of international law. Naturally, it is not possible to pursue all the arguments that may explain the privatization of international law, and as such, pursuing a specific line of argument under intellectual property can open up discourses for other questions that can be explained within the boundaries of private rights in international law. For instance, it is quite possible to ask: what can best explain the rise of globalization from an international law point of view? What are the conditions that can permit the application of international law in the transposition of private law rights in intellectual property at the global level? What is the investment function of intellectual property, and how is it justified under international law? But more specifically, what is the connection, if any, of HLA Hart’s jurisprudence and intellectual property within an international law context? This article takes on some of these difficult questions against the backdrop of the privatization of international law from an intellectual property perspective.