Recognition of intellectual property rights as investment in light of international investment law

Document Type : Original Article

Authors

• mohadeseh ghavami pour sereshkeh ¹
• Amirreza mahmoudi ²

¹ PhD student in criminal law and criminology, Lahijan branch, Islamic Azad University, Lahijan, Iran

² Assistant Professor, Department of Law, Lahijan Branch, Islamic Azad University, Lahijan, Iran

https://doi.org/10.22067/economlaw.2025.91688.1419

Abstract

In the international investment law system, the recognition of intellectual property rights as qualifying investments is one of the emerging and yet fundamental challenges in the interpretation of investment treaties. Although many international investment agreements explicitly or implicitly consider intellectual property rights as investment assets, this alone is not sufficient to enjoy treaty protection. This article, adopting an analytical-critical approach, examines the criteria for recognizing intellectual property rights as investments in the light of the provisions of investment treaties, the rules of the ICSID Convention, and arbitration procedures. Focusing on the Salini test and other formal and substantive criteria, the article shows that active economic exploitation of intellectual property rights in the host country plays a decisive role in confirming the capital nature of these rights. Furthermore, the article highlights the role of the host country's domestic law in determining the existence, scope, and enforceability of these rights, and in particular emphasizes the principle of territoriality of intellectual property rights. Finally, the article concludes that integrating the principles of intellectual property rights with the international investment legal regime requires careful and coordinated interpretation of treaties, in line with the balance between investor protection and respect for the rule of law in the host country.

Keywords

• Intellectual property
• foreign investment
• ICSID Convention
• arbitration law
• intangible assets

Main Subjects

• Economic Analysis in International Trade Law

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