Abstract: Despite the deep irony of free trade agreements being subverted to codify and extend anti-competitive monopoly rights and despite the equally deep irony of foreign investors having greater enforcement rights than local investors, the joining of enhanced intellectual property rights (IPRs) and protections and strengthened investor rights is creating a wild-west opportunity for unbounded corporate power. Two current contestations show the dangers of this expanded power in sharp relief.
Yesterday, the Cato Institute hosted a panel on the Investor-State dispute brought by Eli Lilly against Canada under Chapter 11 of the North American Free Trade Agreement. The panel featured Mark Schultz from the Southern Illinois University School of Law, Burcu Kilic from Public Citizen, and Christopher Sands from the Hudson Institute. The trade dispute surrounds a Canadian court case in which Eli Lilly’s patent for Strattera was found to be invalid because it did not met the Canadian utility standards. The company alleges that the utility standards applied by the court – which require the patent applicant to demonstrate ‘promised utility’ at the time of filing – amount to an “unlawful expropriation of Claimant’s investments.”
Today the Senate Finance Committee held a hearing on the Transatlantic Trade and Investment Partnership (TTIP), currently under negotiation between the U.S. and the EU. Testimony was delivered by Michael L. Ducker (FedEx), Ryan McCormick (Montana Grain Growers Association), Dave Ricks (Eli Lilly), and William Roenigk (National Chicken Council). All strongly supported the trade agreement, and all voiced their support for the passage of trade promotion authority legislation. The webcast and prepared statements are online here.
During the opening statements, Minority Leader Orrin Hatch said that in order for him to support the final text of the agreement “it is absolutely essential that TTIP reflect the highest standard of intellectual property rights protection of any prior agreement.”
Author: Brook Baker
Abstract: Free trade agreements (FTAs) and bilateral investment treaties (BITs) typically contain investment clauses designed to attract direct foreign investment and protect the interests of foreign investors. In addition to defining foreign investment that are entitled to protection, investment clauses typically allow for investor-state dispute resolution, which allows a foreign investor to launch arbitral proceeding directly against the offending government before a private panel of trade lawyers. This paper focuses first on a pro-investor draft investment chapter in an ongoing regional trade negotiation – the Trans-Pacific Partnership Agreement (TPP) – and second on the first investor-state arbitral claim ever by a patent-holding pharmaceutical company under a U.S. free trade agreement, the Eli Lilly v. Canada case.
[Cross posted from Equilibri.net] Although access to medicines activists have been wise to focus our attention intently on convincing low- and middle-income countries to adopt and use all possible TRIPS-compliant flexibilities and to oppose the TRIPS-plus IP chapters in free trade agreements, we have neglected to interrogate another chapter in free trade agreements and bilateral investment treaties that perhaps pose an even greater threat to our collective access to medicines – investment chapters.