India's ACTA: Intellectual Property Rights And Secrecy Stall Treaty

from the and-again-and-again-and-again dept

All Indian IIAs (International Investment Agreements) contain a broad asset-based definition of investment stating that investment means every kind of asset. This broad definition is then followed by an inclusive or non-exhaustive list of assets, which includes direct investment, portfolio investment, intellectual property rights, rights to money or to any performance under contract having a financial value, business concessions conferred under law or contract. Such a broad definition of investment expands the jurisdiction of IIAs to virtually cover almost all areas of investment.



Fair and equitable treatment (FET) has emerged as one of the most litigated issues in investment treaty arbitration. At the heart of this controversy is the meaning of FET. Almost all Indian IIAs contain the FET principle without providing much guidance regarding its meaning. Thus, determining the content of FET is left to the discretion of investment treaty arbitration tribunals.

The European Union has been secretly negotiating a free trade agreement with India since 2007 that is worryingly similar to ACTA. Intellectual property rights enforcement would include border detention and seizure measures of goods being imported by India, exported by India or in transit via India's ports or airports. This could affect the generic drugs that India produces for its people, as we noted last month. The European Union is eager to wrap the agreement up by the end of the year, according to Belgium's Deputy Prime Minister and Trade Minister Didier Reynders. He wants to gain access to public procurement, chemicals and pharmaceutical products, health care, technologies, life sciences, renewable energy, and urbanization. This sounds peachy till the matter of India's arbitration notices is considered. As public interest NGO Madhyam states This is the problem: foreign corporations go in with promises of investment opportunities and exploit the people till the government pushes back, then the foreign investor takes them to an international trade court.The stumbling block at the moment is that India wants the EU to ensure free mobility of professionals without restrictions such as experience whereas the EU wants greater commitment by India to allow foreign investment in services such as retail, legal and postal. Allegations of the existence of a 'Kashmir center' run by anti-India elements in Brussels aren't helping. Meanwhile, opposition to the treaty is mounting from unions international NGO s, and David Martin MEP , rapporteur for the European Union's International Trade Committee, whose recommendations helped to pull ACTA down in July.When will they learn to stop negotiating treaties that only benefit big business in secret? Opposition to this treaty will continue to grow as more details emerge.

Filed Under: acta, eu, europe, india, ip rights