Sovereignty over public health is slipping away

Investor-state dispute settlement provisions in international investment treaties allow multinational corporations to sue foreign governments for public health measures designed to save lives. 

In the small mountain town of La Oroya, Peru, children suffer from the crippling effects of lead poisoning, including anemia, convulsions, stunted growth, and mental retardation.[1] The Doe Run Peru metal smelter, owned by US billionaire Ira Rennert, has been polluting the small town for over a decade. A 2005 study conducted by scientists from Saint Louis University found that 97% of children under the age of 6 had lead levels that would be considered toxic by the Centers for Disease Control and Prevention.[2] After the smelter was shut down in 2009, the Peruvian government refused to grant Rennert’s company The Renco Group another extension to clean up environmental pollution it had promised to remove over a decade ago. In 2010, Renco responded by launching an investor-state dispute against Peru under the US-Peru Free Trade Agreement, demanding $800 million in compensation for Peru’s allegedly “unfair treatment” of its smelter-operating subsidiary.[3] Faced with the threat of costly and protracted arbitration, the Peruvian government caved to Renco’s demands and re-opened the smelter in 2012.[4] Peru’s inability to protect the health of its own people demonstrates the devastating impact that investor-state disputes can have on public health.

Investor-state dispute settlement (“ISDS”) provisions, found in international investment treaties, provide an additional channel for investors to sue foreign governments outside the domestic court system. Claims are brought before an international arbitration tribunal consisting of three individuals chosen by the parties. Concerns have been raised about the independence and impartiality of arbitrators given the proclivity of parties to appoint individuals sympathetic to their case and arbitrators’ interest in being re-appointed in future cases.[5] Typically plucked from the international trade law community, arbitrators are predisposed to apply rights-based norms imported from private commercial arbitration law, thereby perpetuating systemic bias in favor of investor rights.[6] Several prominent arbitrators have been board members of multinational corporations, including those which have filed cases against developing nations. They tend to share businesses’ belief in the paramount importance of profits, revealing an inherent pro-corporate bias.[7] Furthermore, the ad hoc manner in which each tribunal is formed (for the purpose of a single dispute) often leads to inconsistencies in judgments, including divergent legal interpretations of identical or similar treaty provisions and different merit assessments of cases involving the same facts.[8] The absence of reliable precedent and the unpredictable nature of arbitration makes it difficult for governments to prepare a strong case in defence. Moreover, arbitral decisions are delivered on significant issues without the possibility of effective review.[9] Proceedings can be kept fully confidential, and arbitral awards may not be annuled or corrected even after “manifest errors of law” have been identified.[10] This is particularly concerning given that awards can reach astronomical heights as arbitrators are paid $600-700 per hour, with little incentive to expedite matters.[11] In the 2012 case of Occidental v. Ecuador II, the investor was awarded US$1.77 billion plus pre- and post-award compound interest.[12] On average, the costs of arbitration, including legal fees and tribunal expenses, have exceeded $8 million per party per case.[13] Low-income countries, unable to meet these prohibitively high costs, are more likely to bow to investor demands. Even if a government wins its case, the arbitration tribunal is unlikely to order the claimant investor to pay the government’s costs.[14]

Systemic defects concerning legitimacy, transparency, consistency, impartiality, accountability and affordability continue to plague the ISDS regime, however ISDS cases continue to proliferate, with 514 treaty-based arbitrations in 2012 alone.[15] The danger of the ISDS regime lies in the scope of its subject matter. Investors can bring claims against any measure “adopted or maintained” by national governments which adversely affects profits, thereby ostensibly violating the prohibition against “expropriation” of foreign investments. The range of “measures” which can trigger a claim include “any law, regulation, procedure, requirement or practice”[16] emanating from any level or arm of government, including the judiciary. Indeed, there is no requirement that the impugned measure have legal force or effect.[17] A government could be sued for policies it is merely considering implementing.[18] Likewise, the “investments” eligible for protection include not only direct investments but debt security, equity securities and loans. A NAFTA tribunal has even held that a company’s “market share” represents a protected investment.[19]

The broad scope of the ISDS regime has enabled investors to sue governments for a wide range of measures designed to protect public health. In 1997, the Canadian government banned the use of gasoline additive MMT due to concerns that MMT emissions posed a significant risk to public health.[20] The US-based manufacturer of MMT, Ethyl Corporation, filed an investor-state claim against Canada under the North American Free Trade Agreement (NAFTA), claiming $251 million to cover losses resulting from the alleged expropriation of Ethyl’s MMT production plant and its ‘good reputation’.[21] In July 1998, Canada reversed its ban on MMT and paid Ethyl $13 million in compensation.[22] The ability of a non-Canadian corporation to alter Canadian public health policy without any input from Canadian citizens reflects the significant intrusion of investor-state disputes into the public health sphere.

In 2008, the government of El Salvador refused to issue mining permits to Canadian gold mining company Pacific Rim, in order to protect local communities from the contamination of water supplies with chemicals such as arsenic. Pacific Rim then launched an investor-state dispute against El Salvador for $315 million for the loss of expected future profits.[23] Pacific Rim’s US subsidiary allows the company to sue El Salvador under the ISDS clause of the Central American Free Trade Agreement (CAFTA).[24] The ongoing claim has attracted the attention of more than 300 NGOs, trade unions and civil society groups who vow to defend every last “drop of water”[25] in a country where approximately 1.5 million rural inhabitants lack access to reliable water sources.[26]

Image credit: upsidedownworld.org

Image credit: upsidedownworld.org

In 2011, Germany’s decision to shut down its nuclear power industry in the wake of the Fukushima disaster triggered a multi-billion dollar claim by Swedish energy company Vattenfall, which operates two nuclear plants in Germany. Vattenfall demanded compensation of $4.7 billion under the ISDS clause of the Energy Charter Treaty.[27] The ability of a foreign investor to hold a national government to ransom over legislation designed to protect the health of its citizens highlights the extraordinary anti-democratic precedents set by investor-state disputes.

Image credit: www.occupy.com

Image credit: www.occupy.com

In 2011, multinational tobacco corporation Philip Morris International (PMI) launched an investor-state dispute against the Australian government in relation to its plain packaging laws. The Tobacco Plain Packaging Act 2011 requires all tobacco products to be sold in standardized brown packaging with large health warnings and no trademarks, branding, colors, logos or promotional text. Brand names are printed in small standardized font below graphic images of the effects of smoking, such as a diseased lung or a gangrenous foot.

Image credit: medicaldaily.com

Image credit: medicaldaily.com

The legislation was designed to deter young people from smoking by removing the glamor and aesthetic appeal of cigarette packaging. Studies have shown that the plain packaging of tobacco products is associated with perceptions of lower product quality, poorer taste and less desirable smoker identities. Standardized packaging also tends to increase the effectiveness of health warnings in terms of attention, recall, credibility and seriousness.[28] Incensed by the Australian government’s attempt to save Australian lives, Philip Morris sued Australia under the ISDS clause of a 1993 investment treaty dug up from the archives. It claims that Australia’s plain packaging laws constitute an “expropriation” of PMI’s investments, depriving them of full protection and security in breach of its commitment to treat them fairly and equitably.[29]

In its defence, Australia argues that “plain packaging legislation forms part of a comprehensive government strategy to reduce smoking rates in Australia. This strategy is designed to address one of the leading causes of preventable death and disease in Australia, which kills around 15,000 Australians each year, causes chronic disease for many others and is a significant burden both on productivity and on Australia’s health care system. The implementation of these measures is a legitimate exercise of the Australian Government’s regulatory powers to protect the health of its citizens.”[30]

Illustrated by Katrina Geddes

While Australia can afford to defend itself against Philip Morris, other countries cannot. Low-income countries such as Togo and Uruguay have been threatened with million-dollar lawsuits to deter government officials from passing plain packaging laws.[31] In February 2013, New Zealand’s Ministry of Health announced that the government planned to introduce plain packaging legislation, but intended to wait until Philip Morris’s case against Australia was resolved. The legislation has since been introduced, but not enacted.[32] What has developed into a lucrative business of raiding government treasuries not only cripples national sovereignty but has a chilling effect on the introduction of public health measures worldwide.

The explicit inclusion of intellectual property rights within the definition of protected investments in international investment treaties has not only facilitated litigation over tobacco trademarks,[33] but also pharmaceutical patents. US pharmaceutical giant Eli Lilly is suing the Canadian government for refusing to grant additional patents on two of its drugs, Strattera and Zyprexa. Canadian courts found that neither drug demonstrated a new and non-obvious use over the class of compounds which was already patented. Accordingly, both patent applications were rejected for want of utility. Rather than accept the reasoned and rational application of Canadian law by the Canadian judiciary, Eli Lilly decided to sue Canada for no less than $500 million for what it describes as the “expropriation” of its intellectual property.[34] Eli Lilly claims that Canada has violated its obligations under NAFTA to provide “adequate and effective protection and enforcement of intellectual property rights”[35] by applying consistent and rational criteria to all patent applications to reach the reasoned conclusion that its drugs failed to demonstrate long-term clinical effectiveness. 

Image credit: Wikimedia Commons

Image credit: Wikimedia Commons

To support its claim, Eli Lilly uses outdated and explicitly irrelevant procedural guides and non-Canadian law to argue that any drug should receive a patent provided it is not “totally useless”.[36] Unable to comprehend the need to satisfy Canadian patent law in order to obtain Canadian patents, Eli Lilly points to other countries in which the drugs have been patented as proof of their inherent value. Rather than simply amend its applications to suit local patentability standards, Eli Lilly instead demands that the Canadian government amend its patent standards to match the level of patentability Eli Lilly enjoys at home. As a result, Canada faces a multi-million dollar lawsuit for daring to define and apply its own patent laws, in perfect compliance with the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”).

With respect to expropriation, Eli Lilly claims that Canada has “directly” expropriated its patent rights by “depriving Lilly of its exclusive rights to prevent third parties from making, constructing, using or selling its patented products during the patent term and to enforce those rights during the patent term or thereafter”.[37] In the alternative, Lilly claims indirect expropriation on the basis that the invalidation of the patents “destroyed” the value associated with its investments.[38] What Eli Lilly fails to understand is that the initial grant of a patent does not create an irrevocable property right, but a legal right subject to judicial invalidation. There is no inherent right to a patent at common law; it is an entirely statutory creation and as it lives by the pen, so it dies. Accordingly, court decisions invalidating patent grants do not amount to a “taking” of property, but to a determination of whether property rights exist at all.[39] Furthermore, the grant of a patent cannot create any legitimate expectation that the exclusivity it confers will be absolute, without interference from accepted checks and balances by the host state.[40] A patent is a domestic statutory invention, granted upon the fulfilment of certain conditions, and if one of those conditions is not met, the grant can be revoked as easily as it was given.

Cambridge University professor Henning Grosse Ruse-Khan believes that the negative character of IP rights – which allow the right holder to exclude others from utilizing the protected subject matter but do not confer a positive right to exploit that matter – naturally permits governments to impose further limitations on the use of the protected subject matter, in the form of regulatory controls.[41] The WTO Panel in EC-Geographical Indications confirmed that “the TRIPS Agreement does not generally provide for the grant of positive rights to exploit or use certain subject matter, but rather provides for the grant of negative rights to prevent certain acts. This fundamental feature of intellectual property protection inherently grants Members freedom to pursue legitimate public policy objectives since many measures to attain those public policy objectives lie outside the scope of intellectual property rights and do not require an exception under the TRIPS Agreement.”[42] As Ruse-Khan concludes:  

The negative right to exclude others from exploiting IP-protected subject matter does not entail a guarantee against state intervention which imposes conditions upon the production or limits the use and sale of the patented product. For example, the introduction of price controls for a certain patented medication does not interfere with the patent for that medicine. Since such a measure is outside the protection IP rights confer, these rights cannot create legitimate expectations as to the (continued) absence of such measures.[43]

Eli Lilly v Canada sets a dangerous precedent for pharmaceutical corporations to attack foreign governments for differences between foreign standards of patentability and the standards enjoyed by pharmaceutical corporations in their home countries. As Lilly was seeking additional patents on already-patented compounds, Canadian law required proof of the superiority of Lilly’s drugs over existing versions, to prevent over-patenting which might pre-emptively fence off areas of research on the basis of speculative utility.[44] Canada is entitled to prevent abuses of its patent system; given the high social and economic costs associated with granting monopolies, “a patent cannot be granted or its validity confirmed lightly”.[45] Yet, in complete disregard for Canadian sovereignty, Eli Lilly is seeking to elevate its own views of how Canadian patent law “ought” to be applied. And it will continue to demand millions of dollars from the Canadian government until it gets its way. The ISDS regime allows wealthy corporations to impose their values and expectations upon national governments using imperalist notions of superiority and hegemony. While Canada can afford to defend itself, many countries cannot. The Philippine government spent US$58 million defending two cases against German airport operator Fraport; money that could have paid the salaries of 12,500 teachers for one year or vaccinated 3.8 million children against diseases such as tuberculosis, diphtheria, tetanus and polio.[46]  

Illustrated by Katrina Geddes

There is concern that the Eli Lilly case will encourage other pharmaceutical companies to resort to investor-state arbitration to remedy lost expectations of profit arising out of patent invalidations or government measures to improve public health. The ability of ISDS provisions to distort national health policy away from the public interest in favor of supranational corporate interests intensifies the urgency of campaigns for ISDS provisions to be removed from the Trans-Pacific Partnership Agreement (TTP) and the Trans-Atlantic Trade and Investment Partnership (TTIP) which are currently being negotiated. A private, unelected tribunal should not have the power to sanction a sovereign state for introducing democratically enacted public health policies. Three ex-corporate executives, appointed on an ad hoc basis, are hardly equipped to assess the validity of State actions in the context of complex public policy issues. Most international investment agreements fail to address or define how investor rights are to be balanced against sustainable development considerations.[47] An analysis of over 71 bilateral investment treaties confirmed that references to sustainable development principles are the exception rather than the rule.[48] Even if development principles were mentioned, this would not guarantee their consideration by an investment tribunal whose priorities lie with investors.[49]

Illustrated by Katrina Geddes

As long as ISDS provisions are included within international investment treaties, we will continue to witness the private arbitration of public interests. We will continue to watch lawmaking authority shift from democratically elected officials to unknown international bureaucrats. We will continue to see foreign investors enjoying greater legal rights than citizens of a state by virtue of their ability to bring claims against government measures which domestic citizens cannot challenge. The sacrifice of sovereignty associated with the ascendancy of the ISDS regime creates considerable uncertainty with respect to the ability of States to protect the health of their citizens. To remedy this situation, several solutions are proffered:

  1. Promote alternative dispute resolution mechanisms, such as conciliation and mediation which may eliminate the need for a fully-fledged legal dispute.
  2. Modify the existing ISDS regime by, inter alia, increasing transparency, imposing time limits, and providing binding joint party interpretations of treaty language to avoid misunderstandings.
  3. Limit investor access to the ISDS regime by reducing subject-matter scope,  restricting the range of investors who qualify to benefit from the treaty, or requiring local remedies to be exhausted before resorting to international arbitration.[50]
  4.  Abolish the ISDS regime altogether and return to state-to-state investment dispute resolution.
  5.  Introduce an appeals facility to undertake substantive review of awards rendered by arbitral tribunals to improve the consistency and predictability of the law in this area.
  6. Introduce a standing international investment court consisting of judges appointed by States on a permanent basis to replace the current system of ad hoc tribunals.
  7. Require the investor to secure the advance approval of both its home and its host governments before launching an ISDS dispute.
  8. Provide specific exclusions from the ISDS regime for government measures designed to improve public health. 

If ISDS provisions are included in the up-and-coming TPP and TTIP agreements, multinational corporations will continue to seize sovereign power over public health policy in their pursuit of profit. As more and more investors threaten governments with million-dollar lawsuits, democratically elected policymakers will be forced to pay to do the job they were elected to do – protect public health.

 

Written by Katrina Geddes. Published 9 April 2015. 

 

References: 

[1] Martin, A. “Coup d’Etat to Trade Seen in Billionaire Toxic Lead Fight”, Bloomberg, May 10, 2013, available at: http://www.bloomberg.com/news/articles/2013-05-09/rennert-800-million-toxic-lead-fight-roils-global-trade

[2] Romero, S. “In the Andes, a Toxic Site Also Provides a Livelihood”, The New York Times, June 24, 2009, available at: http://www.nytimes.com/2009/06/25/world/americas/25peru.html?_r=0

[3] The Renco Group, Inc., v. The Republic of Peru, Claimant’s Notice of Intent to Commence Arbitration Under United States-Peru Trade Promotion Agreement, December 29, 2010. Available at: http://italaw.com/documents/RencoGroupVPeru_NOI.pdf

[4] Public Citizen, “Renco Uses U.S.-Peru FTA to Evade Justice for La Oroya Pollution”, December 2012, available at: http://www.citizen.org/documents/renco-la-oroya-memo.pdf

[5] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[6] Gallagher, K. “Handbook on Trade and the Environment”, 2010, Edward Elgar Publishing, p 283.

[7] Eberhardt, P. et al. “Profiting from Injustice”, Corporate Europe Observatory and the Transnational Institute, November 2012, available at: http://www.tni.org/sites/www.tni.org/files/download/profitingfrominjustice.pdf

[8] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[9] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[10] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[11] The Economist, “The arbitration game”, 11 October 2014, from the print edition, available online at: http://www.economist.com/news/finance-and-economics/21623756-governments-are-souring-treaties-protect-foreign-investors-arbitration

[12] UNCTAD, “Recent developments in investor-state dispute settlement”, IIA Issues Note, May 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d3_en.pdf

[13] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[14] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[15] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf

[16] North American Free Trade Agreement (NAFTA) Article 201

[17] Gallagher, K. “Handbook on Trade and the Environment”, 2010, Edward Elgar Publishing, p 279.

[18] Haigh, D. “Chapter 11--Private Party vs. Governments, Investor-State Dispute Settlement: Frankenstein or Safety Valve”, 26 Can.-U.S. L.J. 115 (2000)

[19] Gallagher, K. “Handbook on Trade and the Environment”, 2010, Edward Elgar Publishing, p 279.

[20] Public Citizen, “TPP’s Investment Rules Harm Public Health”, date unknown, available at: http://www.citizen.org/documents/fact-sheet-tpp-investment-public-health.pdf

[21] Sforza, M. & Vallianatos, M. “NAFTA & Environmental Laws: Ethyl Corp. v. Government of Canada”, Global Policy Forum, April 1997, available at: https://www.globalpolicy.org/component/content/article/212/45381.html

[22] Public Citizen, “TPP’s Investment Rules Harm Public Health”, date unknown, available at: http://www.citizen.org/documents/fact-sheet-tpp-investment-public-health.pdf

[23] McDonagh, T. “Unfair, Unsustainable and Under the Radar”, The Democracy Center, 2013, available at: http://democracyctr.org/wp/wp-content/uploads/2013/05/Under_The_Radar_English_Final.pdf

[24] Biron, C. “World Bank Tribunal Weighs Final Arguments in El Salvador Mining Dispute”, Inter Press Service News Agency, September 16, 2014, available at: http://www.ipsnews.net/2014/09/world-bank-tribunal-weighs-final-arguments-in-el-salvador-mining-dispute/

[25] Provost, C. “El Salvador groups accuse Pacific Rim of 'assault on democratic governance'”, The Guardian, April 10, 2014, available online at: http://www.theguardian.com/global-development/2014/apr/10/el-salvador-pacific-rim-assault-democratic-governance

[26] Collins, D. “The Failure of a Socially Responsive Gold Mining MNC in El Salvador: Ramifications of NGO Mistrust”, Journal of Business Ethics, 2009, 88; 245-268

[27] The Economist, “The arbitration game”, 11 October 2014, from the print edition, available online at: http://www.economist.com/news/finance-and-economics/21623756-governments-are-souring-treaties-protect-foreign-investors-arbitration [author not named]

[28] Stead, M. et al. “Is Consumer Response to Plain/Standardised Tobacco Packaging Consistent with Framework Convention on Tobacco Control Guidelines? A Systematic Review of Quantitative Studies”, Plos One, October 2013, available at: http://journals.plos.org/plosone/article?id=10.1371/journal.pone.0075919

[29] Attorney-General’s Department, Australian government, “Tobacco plain packaging – investor-state arbitration”, Summary of arbitration, available at: http://www.ag.gov.au/tobaccoplainpackaging

[30] Australia’s Response to the Notice of Arbitration, 21 December 2011, available at: http://www.ag.gov.au/Internationalrelations/InternationalLaw/Documents/Australias%20Response%20to%20the%20Notice%20of%20Arbitration%2021%20December%202011.pdf

[31] NPR, “Philip Morris Sues Uruguay Over Graphic Cigarette Packaging”, September 15, 2014, available at: http://www.npr.org/blogs/goatsandsoda/2014/09/15/345540221/philip-morris-sues-uruguay-over-graphic-cigarette-packaging

[32] Public Citizen, “Myths and Omissions: Unpacking Obama Administration Defenses of Investor-State Corporate Privileges”, October 2014, available at: http://www.citizen.org/documents/ISDS-and-TAFTA.pdf

[33] See leaked draft of the Trans-Pacific Partnership (TPP) Agreement, available via WikiLeaks at https://wikileaks.org/tpp-investment/WikiLeaks-TPP-Investment-Chapter/page-4.html#

[34] Eli Lilly and Company v Government of Canada, Notice of Arbitration, September 12, 2013.

[35] NAFTA Article 1701(1)

[36] Eli Lilly v Canada, Notice of Arbitration, September 12, 2013, at 29.

[37] Eli Lilly v Canada, Notice of Arbitration, September 12, 2013, at 75.

[38] Eli Lilly v Canada, Notice of Arbitration, September 12, 2013, at 75.

[39] Eli Lilly v Canada, Government of Canada Statement of Defence, June 30, 3014, at ¶¶ 9, 108.

[40] Ruse-Khan, H.G. “Litigating Intellectual Property Rights in Investor-State Arbitration: From Plain Packaging to Patent Revocation”, Fourth Biennial Global Conference of the Society of International Economic Law (SIEL) Working Paper No. 2014-21, July 2014, available at: http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2463711

[41] Ibid.

[42] European Communities – Protection of Trademarks and Geographical Indications for Agricultural Products and Foodstuffs, WT/DS174/R, Report of the Panel, 15 March 2005, at para 7.210, available at: https://www.wto.org/english/tratop_e/dispu_e/174r_e.pdf

[43] Ruse-Khan, H.G. “Litigating Intellectual Property Rights in Investor-State Arbitration: From Plain Packaging to Patent Revocation”, Fourth Biennial Global Conference of the Society of International Economic Law (SIEL) Working Paper No. 2014-21, July 2014, available at: http://papers.ssrn.com/sol3/Papers.cfm?abstract_id=2463711

[44] Eli Lilly v Canada, Government of Canada Statement of Defence, June 30, 3014, at ¶ 4.

[45] Eli Lilly v Canada, Statement of Defence, June 30, 2014, available at: http://italaw.com/sites/default/files/case-documents/italaw3253.pdf

[46] Eberhardt, P. et al. “Profiting from Injustice”, Corporate Europe Observatory and the Transnational Institute, November 2012, available at: http://www.tni.org/sites/www.tni.org/files/download/profitingfrominjustice.pdf

[47] Gallagher, K. “Handbook on Trade and the Environment”, 2010, Edward Elgar Publishing, p 280.

[48] Gallagher, K. “Handbook on Trade and the Environment”, 2010, Edward Elgar Publishing, p 280.

[49] Ibid.

[50] United Nations Conference on Trade and Development (UNCTAD), “Reform of Investor-State Dispute Settlement: In Search of a Roadmap”, IIA Issues Note, No. 2, June 2013, available at: http://unctad.org/en/PublicationsLibrary/webdiaepcb2013d4_en.pdf