This article explores the growing intersection between trade mark rights and investor-state dispute settlement (ISDS), highlighting emerging legal and regulatory challenges. Although trade markrelated ISDS claims remain rare and have so far favoured respondent states, there is a risk that future tribunals may adopt expansive interpretations of investment protections. This concern reflects broader trends in ISDS, where tribunals have often interpreted standards, such as fair and equitable treatment, in investor-friendly ways, even under modern, more balanced treaties. As intellectual property claims increase, trade marks may become a new flashpoint within ISDS. The article identifies three key hurdles that trade mark holders must overcome: jurisdiction, breach of substantive obligations, and defences. It argues that the limited jurisprudence to date creates interpretive uncertainty. To mitigate these risks and safeguard regulatory space, the article proposes two key reforms: first, improved treaty drafting, including precise definitions, robust exceptions, and interpretive tools; and second, the development of non-binding guidelines for arbitrators in IP-intensive disputes. Together, these measures aim to ensure consistency, fairness, and the protection of the public interest in future trade mark-related ISDS claims.
European Investment Law and Arbitration Review