Category: ASI

China’s Role in Global SEP Strategy – Recent Berkeley Program

Three observations on China’s role in Global SEP strategies: the Chinese courts are likely fulfilling political mandates notwithstanding the best of intentions; FRAND should be best viewed as a process as much as a substantive outcome where multiple jurisdictions may have a role to play; and despite the attention several cases have gotten, the system overall appears to be working well.

China Responds to EU Article 63 Request

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.

China’s New Blocking Statute Comes into Effect

The NPC passed China’s new blocking statute, the Anti-Foreign Sanctions Law  中华人民共和国反外国制裁法 on June 10, 2021. The Law provides support for the delegation of power to enable lower-level agencies to implement sanctions measures.  As the Law is vaguely worded, State Council agencies are likely to have considerable discretion in implementing it. Of particular concern to multinational companies, the Law also covers spouses and immediate family members as well as officers of listed sanctioned entities.