[Ip-health] Canada prevails in Eli Lilly arbitration

Peter Maybarduk pmaybarduk at citizen.org
Fri Mar 17 12:22:07 PDT 2017

Per the below IAReporter story, from which it appears that the NAFTA tribunal dismissed the Eli Lilly case -- 

Before we can analyze the ruling's implications for meds access, we need to actually see the ruling. Even a positive outcome could come with damaging interpretations by the tribunal. 

ISDS is under fire from all sides, and rightly so. It is not surprising that under conditions of such opposition, some ISDS supporters may have been keen for dismissal of the high-profile and particularly egregious Lilly case. 

-----Original Message-----
From: Peter Maybarduk 
Sent: Friday, March 17, 2017 1:57 PM
To: ip-health at lists.keionline.org
Subject: Canada prevails in Eli Lilly arbitration


BREAKING: CANADA PREVAILS IN ELI LILLY ARBITRATION, AS TRIBUNAL DISMISSES NAFTA CLAIM Mar 17, 2017 | By Luke Eric Peterson . Canada has prevailed in a much-publicized arbitration brought by the US pharmaceutical company Eli Lilly.

IAReporter has learned that a unanimous award was rendered on March 16, 2017, with arbitrators dismissing the claims on their merits.

Lilly had been alleging the judicial expropriation by Canadian courts of two pharmaceutical patents. The case hinged on a patent law doctrine developed in Canadian Courts - the "promise utility doctrine" - and applied so as to invalidate two of Lilly's patents. (For background on their case see our prior reporting here.)

However, the tribunal, while not excluding that an expropriation via judicial measures might be possible, did not view the measures in this case as giving rise to any breach of the NAFTA's investment chapter.

As we've previously chronicled, Canada had raised a series of jurisdictional objections to the claim under Chapter 11 of the North American Free Trade Agreement (NAFTA), including that the claim is time-barred, and also objected to the claim on its merits.

In their final award, the tribunal opted not to uphold Canada's jurisdictional objections, but after dismissing the case on its merits, deemed that Lilly should be responsible for a substantial portion of Canada's legal costs (approximately $5 million).

Hearings on jurisdiction and merits were held in June of 2016 by the tribunal of Albert Jan van den Berg, Gary Born and Daniel Bethlehem.

We will report more on the case when the parties release further information.

Short URL: http://tinyurl.com/lmzysab

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