Intellectual property rights and investment law in the AfCFTA

The protection of both intellectual property rights and investments can play a role in contributing to the development of the African continent. It is therefore commendable that both issues are included in the Phase II negotiations on the African Continental Free Trade Area (AfCFTA) Agreement (which covers intellectual property rights, investment, and competition policy). Nevertheless, as African states are still at different levels of development, it is crucial to incorporate appropriate provisions in the relevant protocols that emerge from these Phase II negotiations to ensure that African states can still design their national intellectual property laws in a manner suitable to their socio-economic context. Focusing on the relationship between intellectual property rights and investment law, this chapter critically examines the January 2023 draft Protocol to the Agreement Establishing the African Continental Free Trade Area on Investment (the draft Protocol on Investment). Specifically, the chapter critically assesses the extent to which the draft Protocol preserves the policy space available to African states under international intellectual property law. In this regard, the chapter critically analyses the provisions of the draft Protocol concerning the definition of intellectual property as an investment and the application of both the fair and equitable treatment standard and the expropriation standard to measures relating to intellectual property rights.