Investor-State Dispute Settlement & Regulatory Autonomy: Is ISDS Evolving?

Guest speaker Rochelle Cooper Dreyfus is the Pauline Newman Professor of Law, New York University School of Law and Arthur Goodhart Visiting Professor in Legal Science, University of Cambridge.

Abstract:

Bilateral investment treaties (BITs) have typically allowed investors to submit to arbitration claims that the host state has, directly or indirectly, expropriated their assets or denied them fair and equitable treatment.

For some time, observers have expressed concerns that investor-state dispute settlement (ISDS) chills sovereign regulatory authority.

However, two recent intellectual property disputes, both involving state action to protect health and access to medicine, have brought the potential impact of ISDS on social welfare to the fore. As a result, states are now reconsidering the terms on which they are willing to offer investment protection. A survey of BITS signed in 2019 reveals that some states have withdrawn entirely from dispute settlement.

Others are making less extreme modifications, including procedural changes, express acknowledgement of the state’s right to regulate, and substantive limitations on the bases on which claims can be brought. Some agreements tackle the problem of health (or more generally, IP-related) regulation specifically.

In this workshop these strategies will be evaluated to determine the extent to which they reduce regulatory chill in the IP realm.

Bio:

Rochelle Cooper Dreyfuss is the Pauline Newman Professor of Law at New York University School of Law and the co-director of the Engelberg Center on Innovation Law and Policy. She holds BA and MS degrees in chemistry and spent several years as a research chemist before entering Columbia University School of Law, where she served as articles and book review editor of the Law Review. She is a member of the American Law Institute and served as a reporter for its Intellectual Property: Principles Governing Jurisdiction, Choice of Law, and Judgments in Transnational Disputes project. Dreyfuss clerked for Judge Wilfred Feinberg of the US Court of Appeals for the Second Circuit and for Chief Justice Warren Burger of the US Supreme Court. She was a member of the National Academies’ Committee on Science, Technology, and Law, the Secretary of the Department of Health and Human Services’

Advisory Committee on Genetics, Health, and Society, and a consultant to the Federal Courts Study Committee, the Presidential Commission on Catastrophic Nuclear Accidents, and the Federal Trade Commission. She has edited several books on intellectual property, including Balancing Wealth and Health: The Battle Over Intellectual Property and Access to Medicines in Latin America (2014, with César Rodríguez-Garavito), which was published in 2016 in Spanish as Entre la salud y las patentes. She co-authored A Neofederalist Vision of TRIPS: Building a Resilient International Intellectual Property System (2012, with Graeme Dinwoodie). For academic year 2019-2020, she is the Arthur Goodhart Visiting Professor in Legal Science at Cambridge University.

All welcome. This is a free event, though registration is required via Eventbrite.