After losing two patent cases before the appellate courts of a Western democracy, should a disgruntled foreign multinational pharmaceutical company be free take that country to private arbitration claiming that its expectations of monopoly profits had been thwarted by the courts’ decisions? Should governments continue to negotiate trade agreements where expansive Intellectual Property-related investor rights and investor- state dispute settlement (ISDS) are enshrined into hard law? Should we be concerned about the impact of billion dollar arbitral judgments on the willingness of governments to regulate pharmaceutical companies and to corral their efforts to expand their patent and data protection monopolies? Ultimately, should policy makers be concerned about the impact of investor rights on the affordability and accessibility of medicines both in rich and low- and middle-income countries?
The answers to these questions become more urgent given proposed IP and Investment Chapters in the Trans- Pacific Partnership Agreement (TPP) and the recent NAFTA investor dispute notifications by Eli Lilly against Canada. The Eli Lilly case clarifies the risks of including IP rights in investment chapters and the boundary- pushing claims that can be brought on behalf of foreign pharmaceutical companies.
Investment Treaty News 8-10 (2013), available at, http://www.iisd.org/pdf/2013/iisd_itn_sept_2013_en.pdf