Rights in Conflict: Examining Investment Treaty Arbitration and Intellectual Property Rights in the Wake of Russia’s Invasion of Ukraine

Authors

Grace Klutke

Document Type

Comment

Abstract

This article examines how the armed Ukraine-Russia conflict opened a doorway for a wave of international arbitration via corporate actions against Russia for violating BIT obligations. To provide context for the suggested BIT arbitration against Russia, this article begins with a brief discussion of the historical background of this conflict and investor-state treaty arbitration. This article next pivots to analyze the applicability of investor-state treaty arbitration to compensate lost IP investments in three parts. Part I considers how investor-state treaty arbitration function with ongoing armed conflict and which investors may initiate investor-state treaty claims. Next, Part II reports on the status of Russia's existing BIT obligations and the effect of Russia's decision to suspend IP rights of “unfriendly states.” In articulating how the suggested BIT claims would lead to successful results, Part III details the enforcement routes of arbitration awards if Russia declines to pay. This article concludes with remarks on the role of investor-state arbitration as a diplomatic tool extending beyond other legal remedies to disincentive illegal international conduct.

First Page

220

Last Page

254

Recommended Citation

Grace Klutke, Rights in Conflict: Examining Investment Treaty Arbitration and Intellectual Property Rights in the Wake of Russia’s Invasion of Ukraine, 17 J. Bus. Entrepreneurship & L. 220 (2024)
Available at: https://digitalcommons.pepperdine.edu/jbel/vol17/iss1/7