The Incredible Shrinking Victory: Eli Lilly v. Canada, Success, Judicial Reversal, and Continuing Threats from Pharmaceutical ISDS

This Article examines the Eli Lilly v. Canada arbitration award and its potential impact on intellectual property-based investor-state dispute settlements affecting pharmaceuticals. It begins by providing contextual background on ISDS and the underlying Eli Lilly patent invalidations. It then critiques the award and discusses the dangers of its overly cautious grounds of decision and its explicit validation of IP-based ISDS. The Article further illustrates these dangers through a discussion of the stunning judicial reversal of the promise/utility doctrine by the Canadian Supreme Court, the withdrawal of a compulsory licensing proposal in Colombia, and the deregistration of a competing generic Hepatitis C medicine in Ukraine.

Ultimately, it recommends that ISDS provisions be removed or rewritten to prevent the possibility of bringing IP-related claims.