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The Trouble With the TPP, Day 45: Limited Economic Gains for Canada

The Trouble with the TPP series has spent the past two months examining dozens of provisions in the agreement and their implications for Canadians and Canadian law. Yet beyond the new restrictions, missed opportunities, and business uncertainty, lies real doubt about the actual gains from the TPP. While certain groups were prepared to support the TPP sight unseen, the evidence continues to mount that there are very limited Canadian benefits from the deal. The next few days will consider the economic and employment implications of the TPP.

At a recent Standing Committee on International Trade hearing on the TPP, Brian Kingston, a Vice-President with the Business Council of Canada (formerly the Canadian Council of Chief Executives) was asked if there were any negatives about the deal. Incredibly, Kingston responded that he could not think of any, a position that was rebutted in the next hearing as agricultural groups talked about billions in losses. Further, Kingston was also asked about studies on the TPP. He indicated that the main study he had seen was from the Peterson Institute.

March 7, 2016 — 2 comments — News

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Giving Pick-and-Pay a Chance: Why Skinny Basic Is Just the Start of More Competitive TV Pricing

Canadians appear to have become so accustomed to an uncompetitive cable and satellite market typified by frequent price increases and restrictive options that many are failing to recognize the arrival of greater consumer choice. Last week’s launch of the new $25 basic “skinny” cable packages mandated by the Canadian Radio-television and Telecommunications Commission (CRTC) left many underwhelmed, as the patchwork of channels and hidden fees seemingly confirmed critics’ claims that consumers would be better off sticking with their existing, pricier packages.

My weekly technology law column (Toronto Star version, homepage version) acknowledges that there is plenty of room to criticize the cable and satellite companies. They have no intention of actively promoting the cheaper options and some seem determined to make them as unattractive as possible. However, the reality is that the combination of basic television service and the pick-and-pay model that must be offered by the end of the year is changing the marketplace for the better.

March 7, 2016 — 3 comments — Columns

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The Trouble With the TPP, Day 44: Canada’s Terrible ISDS Track Record

The Trouble with the TPP has discussed how the agreement’s investor-state dispute settlement provisions do not meet the standard set by the Canadian government in CETA, do not address key concerns over policy making as illustrated by the Bilcon case, and raise enormous risks as demonstrated by the ongoing Eli Lilly dispute over Canadian patent law. This final ISDS post points another problem for Canada with ISDS rules: our track record is terrible.

According to the UNCTAD dispute resolution database, Canadian investors lodged 39 claims between 1998 and 2016 using ISDS provisions found in trade agreements and bilateral investment treaties. With all those claims, Canada has only won three times: a 2013 mining case against Kyrgyzstan, a 2011 mining case against Mongolia, and a 2009 mining case against Venezuela. The record is even worse in claims involving NAFTA as Apotex lost in 2008, 2009, and 2012; Canadian Cattlemen lost in 2005, Grand River lost in 2004, Glamis Gold lost in 2003, Thunderbird lost in 2002, ADF lost in 2000, Methanex lost in 1999, Mondev lost in 1999, and Loewen lost in 1998. Canadian companies just doesn’t seem to win NAFTA claims.

March 4, 2016 — 3 comments — News

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The Trouble With the TPP, Day 43: Eli Lilly Is What Happens When ISDS Rules Go Wrong

The last two Trouble with the TPP posts have focused on the agreement’s investor-state dispute settlement provisions, noting that they do not meet the standard set by the Canadian government in CETA and do not address key concerns over policy making as raised in the Bilcon case. The risks associated with ISDS rules are far more than just the subject of academic or legal debate. Experience shows that the cases can place billions of tax dollars at risk, threatening to wipe out the supposed “gains” created by trade deals.

The current legal battle between the Canadian government and international pharmaceutical giant Eli Lilly provides an illustration of what can happen when ISDS rules go wrong. In the early 1990s, the company applied for patent protection in Canada for two chemical compounds, olanzapine and atomoxetine. The company had already obtained patents over the compounds, but asserted that it had evidence to support new uses for the compounds that merited further protection. The Canadian patent office granted the patents based on the content in the applications, but they remained subject to challenge.

March 3, 2016 — 4 comments — News

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Government Raises Doubts About Independence of Canadian Chamber of Commerce in Patent Case

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:

March 3, 2016 — Comments are Disabled — News