No deficits---while protection is international, enforcement is domestic. But a permutation directly contradicts the treaty. That means we incentivize cooperation without overlooking domestic interests!

An international law approach to IP then focuses on instruments and institutions set up by states in order to regulate the use of IP across borders. Against the background of IP rights as private rights granted under domestic law, one however might question whether and how much of this regulation is truly international? When it comes to IP, public international law rules are essentially set out in treaties between states. They prohibit discrimination against foreign IP owners, facilitate registering IP rights abroad, and set minimum standards of protection and enforcement that those owners must be able to enjoy. In general, they do not affect the underlying notion of territoriality of IP rights; nor do they change the private law nature of the relations between an IP owner and anyone using the protected subject matter. While these treaties provide an often global framework of standards state parties are obligated to, as a matter of public international law, implement in their domestic laws, IP protection, and enforcement still essentially relies on domestic private law—unless international treaty rules are designed to be self-executing, and are given direct effect.5

Where countries have allowed their courts or IP offices to directly apply international IP norms, this almost inevitably occurs through a domestic lens: for example, in determining the threshold, under art. 6bis of the Paris Convention, when a trademark is considered to be well-known in the country where protection is claimed. At the same time, national courts interpreting and applying their domestic IP statutes occasionally consider, and take guidance from, public international treaties on IP. In doing so, they nevertheless frequently adopt their own views about what the relevant treaty rules mean for them and the case in front of them.6 Their domestic approaches sometimes directly contradict interpretations WTO Panels have arrived at in what constitutes the first multilateral system of dispute settlement applicable to IP treaties.7 While clarifying the meaning of treaty terms and inducing compliance through WTO dispute settlement could reorient the system’s focal point towards the international, we only have about two handfuls of decisions in the IP context.8 An interesting development here is a new hybrid: ‘private actions’ brought by IP-owning investors against host states under Investor-State dispute settlement (ISDS) which may at some point fill the gaps which (so far) WTO dispute settlement has not covered. This alternative mode of international IP protection generates not only an increasing number of adjudicative decisions pertaining to IP, its global enforcement of Awards arguably appears to be more effective than the bilateral nature of counter-measures under the Dispute Settlement Understanding (DSU).9