MofCOM Files Amicus Petition for Rehearing

The Trade Remedy Investigation Bureau (TRB) of China’s Ministry of Commerce has filed an amicus petition for a rehearing en banc in Sino Legend v ITC.  The petition notes that the Chinese government rarely appears in U.S. courts as an amicus.  The brief argues that “ITC does not have jurisdiction over conduct that occurs entirely in China, especially in the circumstances presented in this case, where the very same issues have been  resolved by China’s competent courts.  The TRB expresses its disappointment and displeasure with this aspect of the adjudication to date.  It is also the TRB’s view that the astonishing ruling in this case – that the decisions of Chinese courts on the identical issue between the same parties are totally irrelevant and, therefore, can simply be ignored by the ITC – frustrates the respect properly due to the judicial sovereignty of any nation and treaty partner.  Accordingly, the TRB urges this Court to grant the en banc rehearing petition that requests the full Court to respect comity and reject reliance on the incorrect decision in TianRui Group v. International Trade Commission, 661 F.3d 1322 (Fed. Cir. 2011). ”

The Tian Rui case has previously been discussed on this blog, in the context of the difficulties in proving trade secret infringement in China.  Issues involving comity and the deference to be accorded to Chinese judicial decisions have also been discussed here, including in such cases as Gucci in the SDNY, and the Huawei v Interdigital case in China. At a recent conference at Stanford University, I also noted that there were concerns that Chinese entities were timing or taking actions to undercut Section 337 actions.

In the United States, there have also been some modest efforts in the United States in enforcing Chinese judgments under the Uniform Foreign Money Judgments Recognition Act, including in an IP-related case in the Northern District of Illinois Global Material Technologies vs. Dazheng Metal Fibre. In addition, one US court applied principles of Chinese copyright law in adjudicating a China-related copyright matter.

I use these examples only to illustrate how U.S. and Chinese judicial systems are increasingly interacting and that litigants exploit opportunities in each other countries’ systems.

It would also be useful, in this context, if non-parties also had the opportunity to file amicus briefs on the record in proceedings China, as has been urged by the US Chamber.

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