Investor-State Dispute Settlement: Human Rights and Regulatory Lessons from Lilly v. Canada

The triangular interface between trade, IP and human rights has yet to be fully formed, both doctrinally and normatively. Adding investor-state dispute-settlement (ISDS) to the mix increases the complexity of the equations to solve. Two resultant issues are explored in this Article. First, the Article considers ways in which broader public interest considerations-in particular human rights -- can and should be factored into determinations of a state’s action compatibility with its trade obligations and commitments in a state-to-state dispute-settlement context. Second, the Article examines whether doctrinal tools used in state-to-state trade dispute-settlement to make room for public interest considerations port to the investment/ISDS context. The Article uses the recent Lilly v Canada case as backdrop to illustrate the points made. The Lilly case dealt with an ISDS complaint filed after the revocation of two Canadian patents on pharmaceutical products. The Article approaches the above-mentioned triangular interface from a policy perspective that factors in innovation and investment protection but also public health, a policy area supported by a human right (to health) and in which states need regulatory autonomy.