Investor-State Dispute Settlement and intellectual property: Lessons from Lilly v. Canada

This chapter engages in a critical examination of various aspects of the substantive interface between trade, investment, intellectual property, and human rights. Using the Lilly v. Canada litigation it illustrates how human rights issues could arise in the context of Investor-State Dispute Settlement (ISDS) cases involving intellectual property (IP) and explicates the resulting conflicts between the private interests of foreign investors on the one hand and the regulatory autonomy of the host state to promote social welfare and to live up to its international human rights commitments on the other. It concludes by exploring possible paths forward for preserving a state's regulatory flexibility in vital areas of socio-economic importance and/or the implementation of human rights obligations, with a particular focus on the interpretation of the notions of 'indirect expropriation' and 'Fair and Equitable Treatment' (FET).