“故進不邀功，退不避罪，唯民是保，而利合於主，國之寶也。” Sun Zi 

Therefore, the general seeks no personal credit when advancing, nor shirks responsibility when withdrawing; his sole concern is the protection of the people, and his interests are aligned with those of his sovereign.  Such a man is a true treasure of the state.

DS611: China Takes Steps to Conform to WTO Ruling

China appears to have taken an important step toward implementing the WTO ruling in DS611 (July 21, 2025), a WTO decision on a complaint filed by the EU. The decision noted that China’s practice of issuing anti-suit injunctions in cases involving standards essential patents impacted the negotiating position of SEP holders filing lawsuits outside of China and diminished the patent holders’ ability to conclude licensing agreements. The decision also found that China had failed to publish or otherwise make available decisions of “general application.”  In particular, the arbitrators agreed that decisions such as Xiaomi v. InterDigital constituted “final judicial decisions of general application” because they articulated principles or criteria that could guide future cases.

China’s public response, at least as presented to the WTO, was relatively swift. According to the European Commission, China informed the WTO that the Supreme People’s Court (SPC) had issued a notice on September 23, 2025 withdrawing the anti-suit injunction policy, and that the notice had subsequently become accessible online from outside China. The European Union recently published a notice of China’s withdrawal of its anti-suit injunction policy. If taken at face value, this is a meaningful development. It suggests that China has, at least formally, stepped back from the most controversial aspect of its SEP enforcement toolkit. I am also not aware of any new Chinese SEP anti-suit injunctions since the WTO ruling.

Nonetheless, as I write this blog (April 3, 2026),  I could not find the SPC’s notice of a change in its SEP policy  through ordinary searches of the SPC website or the SPC IP Tribunal site. That is notable given that the WTO dispute itself turned on judicial transparency. The clearest evidence of withdrawal comes not from a prominent SPC publication, but from China’s own statements at the WTO and the EU’s recent reporting of those statements.

Regarding transparency of case decisions, earlier anti-suit injunction decisions were not entirely invisible, but they were not consistently or reliably accessible either. I have written elsewhere on the US decision to argue for a narrower interpretation of publication obligations notwithstanding the impact of those decisions on rights holders, and on other courts.  I believe that the arbitrators and the US government likely had a rather thin understanding on how judicial policy is made in China, including in the area of ASI’s.  The U.S. retreat from transparency was also a retreat from over 30 years of bipartisan efforts to encourage China to become more transparent.  In any event, the Wuhan court’s Xiaomi v. InterDigital ruling ((2020)鄂01知民初169号之一) appears to have circulated publicly, including in anonymized form on China Judgments Online where it appears in “John Doe” type format with the parties’ names expunged.   Whether an anonymized publication of a possibly non-permanent link of the type used by China Judgments Online complies with the publication requirements is a fine point that was not anticipated by that arbitration decision.

A more difficult and outstanding issue is how the arbitrators’ understood cases of “general application” that must be published. TRIPS does not limit that term to common law–style precedent. Nor does China operate a formal system in which a provincial-level decision binds other courts. Yet the arbitrators in their decision adopted a functional approach: a decision may be of “general application” if it develops doctrine, breaks new ground, or is treated as a reference point in subsequent practice, notwithstanding its lack of legally binding effect. This approach is, to my mind, too flexible.  It risks stretching a vague TRIPS obligation beyond its institutional context. Chinese courts guide decision making through multiple channels, including judicial interpretations, guiding cases, typical cases, and internal adjudicatory practices. A first-instance provincial decision, even an influential one, does not formally carry binding effect across the system.  Nonetheless, there are multiple types of decisions that need to be publish.   In this sense I agree with China’s position: treating such decisions as “general application” for WTO purposes undercuts China’s own efforts at guiding judicial practice. It imposes a broader publication obligation than the text of TRIPS explicitly requires while inadequately supporting the steps that China has taken towards broader case publication which could also encompass a broader range of IP-related cases.

This outcome is also notable for another reason: the United States argued against an expansive reading of transparency obligations in this case. In effect, the USTR position would have narrowed the scope of what must be published under TRIPS. The arbitrators rejected that approach. From a systemic perspective, that is a good outcome. Stronger transparency obligations benefit all right holders, particularly in systems where judicial practice develops through influential cases rather than formally binding precedent. USTR’s position in this case was also at odds with decades of US policy encouraging greater transparency by China.

Nonetheless, the Chinese steps do not include follow-up housekeeping

Even after the WTO ruling and the reported September 2025 notice, SPC and SPC IP Tribunal materials have continued to describe and even celebrate the development of anti-suit and anti-anti-suit injunction practice. As best I can tell, the SPC has not announced that Chinese courts remain free to issue ASIs. However, such an announcement could be contrary to China’s position that there never was a written policy regarding ASIs.  Moreover there are several recent materials that continue to restate the legal test for ASIs, and to implicitly or explicitly endorse ASI’s as a legitimate judicial response.  The InterDigital v Xiaomi case, for example, was summarized by the Wuhan government as the “world’s first cross-border anti-suit injunction,” with a daily penalty of RMB 1 million for non-compliance. This suggests that the SPC has not publicly dismantled or repudiated the doctrine, and that the past history has not been “disappeared.”

Why so hesitant? The Chinese judiciary may wish to keep its options open in light of international developments

By the time the WTO arbitrators issued their award in July 2025, European courts were already developing their own anti-interference tools. The Unified Patent Court (UPC) had issued anti-anti-suit injunctions in late 2024, including in disputes such as Huawei v. Netgear and Broadcom v. Realtek. These orders were designed to prevent parties from seeking or enforcing foreign anti-suit injunctions that would interfere with UPC proceedings.

The trend intensified in 2025. In 2025, for example, in InterDigital v. Amazon, the Mannheim Local Division of the Unified Patent Court issued an ex parte anti-interference measure aimed at preventing conduct that would undermine enforcement within the UPC system and related European proceedings. The English High Court responded with its own anti-anti-suit injunction, restraining enforcement of those continental measures insofar as they affected UK proceedings. English courts have also continued to assert their authority to set global FRAND rates and to use injunction-based mechanisms to support that authority.

These developments make it harder to frame anti-suit injunctions as a uniquely Chinese problem tied to disregarding fforeign sovereignty. Instead, they highlight a broader systemic tension in global SEP litigation, where multiple jurisdictions are experimenting with tools to protect their own authority over rate-setting and enforcement. China seems to have stepped back from issuing SEP anti-suit injunctions, which was the core concern of DS611. But the absence of a clearly visible SPC notice, the continued promotion of the underlying doctrine, and the lack of systematic transparency measures suggest that implementation remains partial.

Another development could also be impacting China’s response to DS611 is DS632, the EU’s follow-on challenge to China’s claimed power to authorize its courts set binding worldwide SEP licensing terms, including royalty rates, for portfolios that include non-Chinese patents, without both parties’ consent. The EU requested a panel for this matter on February 12, 2026, and the WTO established the panel on March 19, 2026. As with DS611, a substantial number of foreign governments have reserved third-party rights in this matter including Australia, Brazil, Canada, Colombia, India, Indonesia, Japan, Korea, Norway, Singapore, Switzerland, Chinese Taipei, Türkiye, Ukraine, the United Kingdom, and the United States. 

In its implementation of the arbitrators’ decision, China has continued to show its support for the WTO as a mechanism for resolving international trade disputes.  Considering the continued battles over global primacy in ASI disputes involving standards-essential patents, and the overhang of another related case, China’s court have also taken an unsurprising conservative judicial response which also does not fully repudiate its prior actions.