Eli Lilly v Canada: The Tale of Promise v. Expectation
International Arbitration Law Review (2018) 3
Posted: 28 Feb 2018 Last revised: 17 Jun 2018
Date Written: January 20, 2018
Abstract
Eli Lilly and Company v. Government of Canada is one of the most discussed, debated, controversial, high-profile case where treatment of intellectual property rights (IPRs) as an investment is a cause of action in Investor-State Dispute Settlement (ISDS). This case has generated concerns and criticism over investor strategy of litigating IPRs in ISDS. On 16 March 2017, the Tribunal issued a unanimous Final Award dismissing all claims of Eli Lilly and ordered it to pay 75% of Canada's legal costs and expenses, and 100% of the arbitration costs. The decision of Eli Lilly case is significant in two respects. First, it raises the question of whether the judicial measures can result in expropriation of investment and result in a violation of legitimate expectations of investors. Second, it is the first IPRs related case involving ISDS affecting pharmaceuticals.
Keywords: ISDS, patent, regulatory space, promise doctrine
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