Intellectual Property, Climate Change and Technology: must national creativity bring investor-state dispute risk?

Climate change has been recognised through international action, most recently the Paris Agreement, as a key problem of contemporary society. Technology and its dissemination and sharing is one (although not the only) means of addressing this, as can be seen from the increasing importance accorded to the United Nations Framework on Climate Change’s Technology Mechanism. Yet technologies which could be important to states’ obligations to reduce their greenhouse gas emissions may be the subject of intellectual property rights - held by private entities who have no obligations under international treaties to share them.

Under this international umbrella, this paper forms part of a book project exploring how conflicts between intellectual property and climate change are developing at national level, taking the UK jurisdictions as an example. Reference was made to UK intellectual property legislation, climate change legislation from Westminster and from Holyrood, and to hypothetical case studies drawing on a combination of actual developments. When pathways to court exist for these conflicts to be explored, the book will argue for new and legitimate approaches to statutory interpretation and decision making to deliver a more integrated approach to intellectual property, climate change and technology. The book will also argue for new pathways to court, for when the quite different structures of intellectual property and climate change legislation and adjudication mean that a concerning lacuna can exist.

In this context, this paper explored in particular the extent to which such national judicial creativity could be challenged in an investor-state dispute by a disgruntled intellectual property owner; would it involve expropriation and lack of fair and equitable treatment if this led to a reduction of the power that the intellectual property owner holds in the particular case study? Risks and opportunities will be discussed, particularly in the light of recent developments regarding plain tobacco packaging disputes and Eli Lilly v Canada, and arguments for a tribunal (or potentially courts?) to look beyond trade and investment question to other legal fields.