A Reflection on the Determination of the Concept of Investment in Intellectual Property Disputes under the ICSID Arbitration Convention with a Glance at Iranian Law

Document Type : Original Article

Authors

1 Assistant Professor, Department of Law, Faculty of Law and Economics, Khomeini Shahr Branch, Islamic Azad University, Khomeini Shahr, Iran

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

Abstract

The ICSID Convention does not provide a definition of the term "investment" in its Article 25, which has led to a divergence of opinions among legal scholars and international investment arbitration tribunals regarding the concept of investment and its constituent elements. One of the most contentious issues in this regard is whether disputes related to intellectual property rights (IPRs) can be considered as involving an "investment" under the ICSID Convention. To address this key question—**whether intellectual property-related claims, particularly those involving trademarks, can be classified as investments under the ICSID framework**—the authors have analyzed the interpretation of Article 25 of the ICSID Convention and the approaches taken by international investment arbitration tribunals in two landmark cases: Philip Morris v. Uruguay and Bridgestone v. Panama. This research, which employs a library-based method and a questionnaire-based survey, demonstrates that, under certain conditions, intellectual property rights—especially trademarks—can indeed be considered investments under the ICSID Convention. Specifically, if trademarks are actively used in a manner that generates income for the host state and contributes to its economic development, they may satisfy the criteria for an "investment" as interpreted by ICSID tribunals. Thus, the study concludes that intellectual property-related matters, particularly those involving trademarks, can be regarded as falling within the scope of investment contracts under the ICSID Convention.

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History

  • Receive Date: 12 April 2025
  • Revise Date: 11 July 2025
  • Accept Date: 04 August 2025

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