Intellectual Property in Investor-State Arbitration: Do Sweden's BIT Model (2002) and CETA Provide Clear Standards for Indirect Expropriation of IP?
Bibliographic record
Abstract
This thesis analyzes the legal framework regarding the indirect expropriation of intellectual property rights (IPRs) under two distinct international investment agreements (IIAs): The Sweden’s 2002 Model Bilateral Investment Treaty (BIT) and the Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union. The primary objective is to evaluate the effectiveness of these instruments in providing coherent legal standards and protection for IPRs as qualifying investments against indirect expropriation measures by host states. This analysis incorporates the interpretative role of Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and the Vienna Convention on the Law of Treaties (VCLT), with a particular focus on their guidance in comprehending and application of indirect expropriation provisions in the 2002 BIT and CETA. The inclusion of IPRs within the scope of protected investments in many IIAs reflects their rising economic significance1, and yet this expansion necessitates a close examination of whether these instruments provide predictable and coherent protection against indirect expropriation measures that may substantially impair the economic value of IP. The primary research question guiding this thesis is: “To what extent do Sweden’s 2002 Model BIT and CETA establish clear, predictable, and effective legal standards for identifying and compensating indirect expropriation of intellectual property rights?” In order to provide an answer to this central question, the thesis examines several key dimensions of the legal framework. It analyzes how the definitions of “investment” and “intellectual property rights” in the 2002 BIT and CETA reflect the distinctive features of IPRs. The study delves further into the legal and textual distinctions between their indirect expropriation clauses. It focuses in particular on the legal and textual differences between these clauses, incorporating public interest carve-outs and exploring the scope of the “right to regulate”. The role of interpretative frameworks is 1 John Olusegun, Moses Blessing and Moses Blessings, ‘The Role of Intellectual Property Rights in Shaping Investment Flows and Economic Growth in Emerging Markets’ (2024) . Accessed 3 May 2025. 3also addressed, with particular attention to the relevance of TRIPS principles and the treaty interpretation rules under Article 31 of the VCLT in clarifying the line between lawful regulation and compensable taking. The choice to examine an older model BIT along with modern, comprehensive trade agreement like CETA enables implicit investigation into the evolution of treaty practice. Recent agreements, such as CETA, aims to clarify and address critiques leveled at earlier BITs, particularly which is pertaining to the balance between investor protection and the State’s right to regulate. This comparative aspect is key to comprehend the shifts in the legal landscape for IPR protection. Furthermore, this research addresses the tension between incentivizing innovation and attracting foreign investment through robust IPR protection, and the need for states to pursue their interests, a balance that the TRIPS Agreement itself acknowledges.
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How this classification was reachedexpand
Full frame machine prediction
Teacher imitationNot calibrated prevalence, not ground truth. Human validation pending. The Gemma side is a direct model label for every work in the frame, read from the title-only record. The Codex side is a classifier learned from the 10,348 direct Codex labels and calibrated to design-weighted sample rates; fields without enough sample support carry no Codex call. Candidate is the union of the two sides; consensus is their intersection. These outputs are machine_predicted_unvalidated and are not human labels.
Distilled classifier scores by category (both heads)
| Category | Codex | Gemma |
|---|---|---|
| Metaresearch | 0.010 | 0.021 |
| Meta-epidemiology (narrow) | 0.000 | 0.000 |
| Meta-epidemiology (broad) | 0.001 | 0.001 |
| Bibliometrics | 0.002 | 0.001 |
| Science and technology studies | 0.002 | 0.008 |
| Scholarly communication | 0.014 | 0.008 |
| Open science | 0.001 | 0.004 |
| Research integrity | 0.004 | 0.004 |
| Insufficient payload (model declined to judge) | 0.003 | 0.001 |
Machine scores (provisional)
The two teacher heads of the student model, read on this work. A score orders the frame for review; it never asserts a category, and the validation status ships verbatim with every row.
Baseline scores from an immature model (maturity gate not passed, 7 training rounds). Scores rank; they never assert a category.
score_only:v0-immature-baseline · verbatim from the scoring run: score_only means the number may rank works, and no category label ships from itClassification
machine, unvalidatedMachine predicted; a candidate call from one source (direct Gemma or distilled Codex), not a consensus.
How this classification was reached, model by model and score by score, is at the end of the page under "How this classification was reached".