Eli Lilly and Company v. Canada (ICSID Case No. UNCT/14/2), Notice of Arbitration (September 1, 2013)
Claimant Eli Lilly and Company (“Lilly”), on its own behalf and on behalf of its enterprise Eli Lilly Canada Inc. (“Lilly Canada”), hereby demands that the following dispute against the Government of Canada be submitted to arbitration pursuant to Article 3 of the Arbitration Rules of the United Nations Commission on International Trade Law (“UNCITRAL”) and Articles 1116, 1117, and 1120 of the North American Free Trade Agreement (“NAFTA”).
I. OVERVIEW
1. The innovative pharmaceutical sector relies upon patent protection as the cornerstone of bringing innovative medicines to market. Patent protection and the accompanying guarantee of market exclusivity provide a critical economic incentive to invest in drug development. Bringing an innovative medicine to market today involves an average investment of $1 billion or more. Not every patented pharmaceutical invention results in a commercially and medically successful product. To the contrary, many inventions never make it past initial testing stages in the laboratory. As a result of this development lifecycle for the typical pharmaceutical, and the additional need for health regulatory approval before a medicine may be marketed to patients, an innovative pharmaceutical typically comes on the market many years after the initial patent application is filed.
2. Lilly is a global pharmaceutical company whose lifeblood is intellectual property protection for innovation. In the 1990s, Canada granted patents protecting Lilly’s pharmaceutical products, Strattera and Zyprexa. These medicines treat attention-deficit hyperactivity disorder (“ADHD”), and schizophrenia and related psychotic disorders, respectively. Both medicines have been approved by Health Canada as safe and effective. Strattera and Zyprexa are used by hundreds of thousands of patients in Canada and are commercially successful products.