On September 7, 2020, China responded to the EU Article 63 request. I briefly discussed the EU request here. Simon Lester’s China Trade Monitor has also discussed it.
The one-page Chinese response repeats the position taken by China in 2006, that Article 63 only affords an opportunity for a member to make a transparency request of another member. As China notes in its response, “there is no such obligation under the TRIPS Agreement for China to respond.” This position repeats the position taken by China that “the TRIPS Agreement only refers to a Member’s right to request information, but there is no mention of a corresponding obligation of the requested Member to actually follow the request.” (Para. 8, P/C/W/465, Jan. 23, 2006). As this prior Article 63 response appears to be the template for some elements of the current response, I have inserted it below. The Chinese responses might be understood as rejecting a teleological interpretation of the TRIPS Agreement to effectuate its purposes, or one based on the good faith of the parties, as it is difficult to conceive of the reason for a treaty provision that offers an opportunity to make an inquiry of another country, but does not require that country to respond.
Generally speaking the WTO has considered the term “general application” in the WTO agreements to mean having application beyond the specific parties. The Chinese view, however, is that the various types of cases “mentioned in the EU communication are cases for reference and have no legal effect of general application (para. 4, emphasis supplied). However, “legal effect” is not a term found in Article 63. By contrast the Chinese submission identifies the function of the cases sought by the EU as as “summarizing trial experiences, strengthening publicity of the rule of law and providing references for judicial practices and legal education.” This, in my view, should satisfy the the test of what constitutes “general application”, i.e., application beyond the parties in suit.
Assuming, for the sake of argument, that the test were one of “legal effect,” China’s experiments with using cases to provide greater consistency in decision making have generally helped guide both foreign and domestic litigants and should satisfy such an expanded “general application” test. One significant effort involves China’s “guiding” or “leading” cases. It had been the focus of a widely-supported project at Stanford University, which also involved Chinese lawyers and scholars. Another project was undertaken at the Beijing IP Court in 2016, which resulted in citation of 279 case precedents of various types in 168 cases. Guiding cases have also been used by the courts to help guide lower courts and rightsholders in complex areas of intellectual property, such as in determining how to determine essentially derived varieties in plant variety cases.
Beyond “guiding cases”, the Chinese typology of different types of reference cases is complicated, and may involve different levels of internal review and consequential impact. The types of cases are subject to a range of policy documents by China’s Supreme People’s Court, as detailed (for example) in this Chinese language article. In my view, whatever the distinction among these various types of reference cases, all of these cases offer useful reference points in considering similar cases whether or not they might be cited in a legal brief, a court opinion, an oral argument, considered in judicial deliberations, or reviewed by the general public when it considers the legal implications of a course of conduct. Their significance may vary by the nature of the nature of the typology applied to them, but their “general application” remains constant.
What is perhaps most surprising is what is not included in the docket thus far: an inquiry of the United States supporting the EU’s position regarding publication of cases by China. During the Obama administration, the US government had expressed considerable interest in China’s development of guiding cases and precedent. Moreover, the Article 63 mechanism had originally been advanced by the United States in an earlier WTO dispute with China, as the response below indicates.
Categories: Antisuit Injunction, Art 63, ASI, Case Law, China IPR, SEP, Transparency
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