In the last post, Henning provided an excellent summary of the key substantive parts of the Eli Lilly NAFTA Chapter 11 complaint as it relates to IP law. Let me just make a more general point here (and another more specific point in the next post).
In Eli Lilly's view, Canada has done something outrageous in its patent law. I'm not enough of a patent law expert to know whether that's true, but I see the argument. But stipulating for the moment that Canada has done someting outrageous, let me ask this: Does it make sense to have a system where foreign investors can try to get compensation for outrageous patent treatment, but domestic investors get nothing? If a country's law is deficient in some way, should we focus on trying to get that law fixed, rather than create an international rule that gives only foreign investors compensation for the deficiency?