The Canadian Chamber of Commerce has been one of the most vocal supporters of the TPP and intellectual property reform. It recently waded into the case that most clearly crystallizes the dangers of trade and IP in Canada: the Eli Lilly claim for compensation from Canadian taxpayers for hundreds of millions of dollars due to a pair of patent law decisions. Most patent experts believe that Canada has a strong defence, yet that has not stopped the foreign pharmaceutical company from seeking $500 million in damages.
Last month, several groups submitted amicus briefs to the dispute resolution panel, including one from the Canadian Chamber of Commerce (there is also a submission from CIPPIC and the Centre for Intellectual Property Policy). The Chamber suggests that declining spending in research and development may be due to legal uncertainty, despite years of declining research and development expenditures by international pharmaceutical companies in Canada that predates the Eli Lilly issue. The brief saves the money quote until the last paragraph:
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The TPP’s investor-state dispute settlement provisions have rightly attracted considerable attention given the risks that come with a process that gives companies the right to sue governments for hundreds of millions of dollars. Yesterday’s post discussed why the TPP ISDS rules do not meet the Canadian government’s own standard for dispute settlement as reflected in the Canada – EU Trade Agreement. The CETA provisions include a clear affirmation of governmental power to regulate, an appellate process, and rules designed to ensure fairness and non-bias in settlement cases. The TPP does not contain equivalent provisions.
The Trouble with the TPP’s ISDS provisions extend beyond the absence of policy freedom and fairness safeguards. The Columbia Center on Sustainable Development has published one of the most exhaustive examinations of the problems with the TPP’s ISDS rules, noting that the deal entrenches, rather than reforms, a flawed system. While the failure to address government regulation and procedural fairness consistent with the standards articulated by International Trade Minister Chrystia Freeland tops the list, the report also points to other issues that strike close to home from a Canadian perspective.
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Chrystia Freeland, Canada’s International Trade Minister, yesterday unveiled the final legal draft of the Canada – EU Trade Agreement. While CETA is still awaiting translation, Freeland indicated that she hopes the agreement will come into force in 2017. The lengthy delay in arriving at a final legal draft arose from ongoing European opposition to investor-state dispute settlement provisions that many fear may limit governmental regulatory power and lead to expensive corporate lawsuits. The CETA text unveiled yesterday features some notable changes to the ISDS rules, with Canada largely acquiescing to European demands.
The ISDS changes raise in CETA at least two points that are relevant for TPP purposes. First, claims that completed trade agreements are non-negotiable and cannot be changed simply isn’t true. CETA was completed years ago, yet political demands for changes to the ISDS rules led all parties to go back to the bargaining table to work out a new system. While Freeland called the changes “modifications”, the reality is that a major aspect of the deal was re-worked in face of European protests. If elements of CETA can be reworked, there may be ways to re-do aspects of the TPP.
Second, CETA and the TPP are no longer consistent with respect to investor-state dispute settlement.
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The U.S. government’s attempt to invoke a centuries-old law to obtain a court order to require Apple to create a program that would allow it to break the security safeguards on the iPhone used by a San Bernardino terrorist has sparked an enormous outcry from the technology, privacy, and security communities.
For U.S. officials, a terrorism related rationale for creating encryption backdoors or weakening user security represents the most compelling scenario for mandated assistance. Yet even in those circumstances, companies, courts, and legislatures should resist the urge to remove one of the last bastions of user security and privacy protection.
My weekly technology law column (Toronto Star version, homepage version) argues that this case is about far more than granting U.S. law enforcement access to whatever information remains on a single password-protected iPhone. Investigators already have a near-complete electronic record: all emails and information stored on cloud-based computers, most content on the phone from a cloud back-up completed weeks earlier, telephone records, social media activity, and data that reveals with whom the terrorist interacted. Moreover, given the availability of all of that information, it seems likely that much of the remaining bits of evidence on the phone can be gathered from companies or individuals at the other end of the conversation.
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Appeared in the Toronto Star on February 28, 2016 as Apple iPhone Unlock Standoff Rotten to the Core The U.S. government’s attempt to invoke a centuries-old law to obtain a court order to require Apple to create a program that would allow it to break the security safeguards on the […]
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