On March 17, 2017, a
NAFTA tribunal unanimously ruled that Canada did not violate
NAFTA Chapter 11 provisions providing for minimum standards of
treatment and protection against expropriation of the property of
Eli Lilly when
Canadian courts ruled against Lilly in two patent cases based
on the so-called "promise doctrine." Lilly had argued
that the promise doctrine, under which a patented invention must
work as promised or else be held invalid, was a departure from
international and pre-NAFTA Canadian patent law.
The NAFTA tribunal found no merit to Lilly's claims. The
tribunal was unwilling to shut the door to the possibility of a
NAFTA violation based on a radical change in domestic law. However,
the tribunal set a high threshold for liability, even while
accepting that under certain circumstances, challenges to judicial
decisions can ground a NAFTA challenge. However, such challenges
should be successful only in very exceptional circumstances, in
which there is
