The Analysis Of Patent Case Eli Lilly And Company V. Government Of Canada

Recent years,there are a lot of cases of arbitration by investors because the host country violated fair and equitable treatment.Fair and equitable treatment has become a universally applicable clause in international investment treaties.However,the connotation and application of fair and equitable treatment in international investment treaties are not clear,making the tribunals have a great deal of discretion,and cases brought up by fair and equitable treatment have a high rate of success which explains why the interests of the investors and the host country are unbalanced.There are two kinds of understanding of the connotation of fair and equitable treatment: interpreted as an independent clause;or linked with other standards of treatment.More and more international attention has been paid to fair and equitable treatment clauses,of which the United States has given a limited interpretation of fair and equitable treatment terms,but it has not yet changed the situation of the fair and equitable treatment.Based on the Eli Lilly and Company v.Government of Canada patent case,this article analyzes the main controversial issues of both parties and the tribunal's adjudication process based on the theory of the challenge of jurisdiction and fair and equitable treatment.Summarizing the disputes of the fair and equitable treatment in this case and the relevant experience in international fair and equitable treatment.Combined with some problems in BITs of China,we to figure out how to deal with some risks caused by fair and equitable treatment in our country;At the same time,there are several suggestions for China in the ICSID cases about the determination of jurisdiction and challenge of jurisdiction.This article is divided into four parts:The first part is the basic situation of the case.It mainly introduces the background reason and the development of the whole case.The second part is the theoretical analysis of jurisdiction of ICSID and challenge of jurisdiction,and combines the case facts to analyze the tribunal's recognition process and conclusions in this case.The third part is the theoretical analysis of fair and equitable treatment.Based on the facts of the case and relevant legal basis,analyzing tribunal's determination of whether there is violation of fair and equitable treatment.The fourth part is the enlightenment of this case to China.Based on the relevant theories and the experience of this case,we made recommendations on the determination of the jurisdiction of ICSID cases in China and the challenge of jurisdiction;summarized the issue of fair and equitable treatment in the case,and put forward sound suggestions for fair and equitable treatment in BITs of China.