China Responds to EU Article 63 Request

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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.

Reviewing Recent Literature on the WTO and Antitrust in IP

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Two books, China and the WTO: Why Multilateralism Still Matter (Mavroidis and Sapir), and Chinese Antitrust Exceptionalism (Zhang) consider trade and competition law aspects of the U.S.-China trade dispute.  They discuss the treatment of state-owned enterprises under international trade and domestic competition law rules.  They also discuss IP-specific issues, particularly forced technology transfer by or for the state and the control of abusive technology licensing practices, including the licensing of standards essential patents and China’s discriminatory Administration of Technology Import/Export Regulations (“TIER”), which has since been amended.  The books and article are part of several academic and popular discourses on the disruptive and unpredictable policy agenda of the Trump administration, which also provide cautionary roadmaps for future engagement – or confrontation – with China.