The sharp drop in granting of Antisuit Injunctions by Chinese judicial authorities and the recent amendments to China’s Antimonopoly Law and related rules, suggest that China may have begun to reprioritize the Antimonopoly Law in FRAND rate-setting disputes.
On September 7, 2020, China responded to the EU Article 63 request. 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. The response also ignores the significant developments in case law in China in recent years.
On July 6, 2021, the European Union filed an “Article 63.3” request at the WTO requesting further information on four SEP cases in China. publication of these importance cases will benefit all parties through increased transparency and disclosure of how China has evolved its policy in this contentious area.
This is the second article on recent research on Chinese IP law and practice. The focus of this blog is a widely read article of Judge Zhu Jianjun, Shenzhen Intermediate Court, Intellectual […]
Wuhan, China is currently a destination jurisdiction for anti-suit injunctions (ASI) and anti-anti-suit injunctions (AASI). Although the first AASI was issued in a Wuhan maritime case in July 2017, the IP judiciary […]