Reexamining Eli Lilly v. Canada: A Human Rights Approach to Investor-State Disputes?

Cynthia M. Ho · 21 Vand. J. Ent. & Tech. 437

Abstract

This Article provides valuable insight to the broader discussion of reforming investor-state disputes. Many have noted that the system is in a crisis due to a lack of democratic accountability and inconsistent decisions, which create a chilling effect on legitimate domestic law and policy. Despite substantial discussion in recent years concerning how to reform investor-state disputes, there is only limited discussion concerning the extent to which such disputes challenge domestic intellectual property (IP) limits, as well as global IP norms. Moreover, even among those who recognize the challenge to IP limits, the relevance of human rights is generally not addressed. This Article begins to fill this gap from two angles. First, it aims to promote a better understanding of how such disputes undermine the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) at an important time when policymakers are recommending reliance on policy space under TRIPS. Second, it considers whether human rights might help to protect this policy space using the facts of Eli Lilly v. Canada.