Corporate Power Unbound: Investorstate Arbitration of IP Monopolies on Medicines—Eli Lilly v. Canada and the Trans-Pacific Partnership Agreement

– Brook K. Baker and Katrina Geddes

Free trade agreements and bilateral investment treaties usually contain clauses designed to attract direct foreign investment and protect the interests of foreign investors. These investment clauses usually allow for investor-state dispute resolution in which a foreign investor launches arbitration proceedings against offending governments before a panel of lawyers. This Article explores the dangers that countries face in trade negotiations with the U.S., Europe, and Japan, due to these countries imposing stronger patent, data, and market entry protections, while also expanding the array of enforcement powers available to large pharmaceutical companies. Extending boundless corporate power to “Big Pharma” through adoption of investor-state-dispute-settlement (ISDS) for intellectual property rights presents a serious danger to the universal right to health and the right of access to affordable medicines.

This Article first examines the Trans-Pacific Partnership. Part II of the Article contains an introduction to the international intellectual property rules. Part III gives a historical background on investment treaties and ISDS. Part IV discusses the Trans-Pacific Partnership’s Investment Chapter while focusing on its provisions dealing with protection for and enforcement of intellectual property-related investments. Part IV discusses the Eli Lily v. Canada arbitration. Eli Lily filed a Notice of Intent to Submit a Claim to Arbitration for CND$100 million against Canada because of Canada’s invalidation of its patent on pharmaceutical drug Strattera used to treat attention-deficit hyperactivity disorder. In Part V, the Article recommends that the investment chapters be struck form the Trans-Pacific Partnership and other trade agreements. The Article also alternatively proposes that such chapters should not apply to the protection or enforcement of intellectual property rights given the many other enforcement powers available to patent holders. The Article argues that extending boundless corporate power to “Big Pharma” through adoption of ISDS for intellectual property rights presents a grave danger to the communal right to health and the right of access to medicine for all.

Abstract Written by Truman J. Crockett