| Summary: | 碩士 === 東吳大學 === 法律學系 === 107 === In 2013, Eli Lilly submitted Notice of Arbitration against the Government of Canada in accordance with NAFTA under ISDS. Eli Lilly claimed that the patent invalidation decisions made by Canada courts based on the judge-made law of “Utility Promise Doctrine” violated the foreign investor protections under NAFTA Section 1105 and Section 1110. On March 16, 2017, the Tribunal rendered its final decisions with two highlights. Firstly, the Tribunal confirms the judicial measures carried out by the courts of the host States can be subject to ISDS review. Secondly, the Tribunal dismissed Eli Lilly’s claim that the patent invalidation decisions made by Canada’s courts have resulted significant changes to Canadian Patent Act and breach FET protections in accordance with NAFTA. As Eli Lilly v. Canada is the first ISDS case raised out of pharmaceutical patents, it is worth to discover the legal implications of the case for the foreign pharmaceutical IP-based investors. Therefore, this study firstly introduces Canadian patent laws and the pharmaceutical investment environment in Canada. Secondly, this study further analyses the claims and the rationale in Eli Lilly v. Canada to discover the Tribunal’s reasoning on judicial expropriations and intellectual property under the FET protections. This study expects the legal implication of the case to provide investment advice from legal point of view for the pharmaceutical IP-related investors for business decision making as well as providing practical approaches for host States for future international investment agreement negotiation.
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