Transplanting Anti-suit Injunctions

82 Pages Posted: 7 Oct 2021 Last revised: 16 May 2022

See all articles by Peter K. Yu

Peter K. Yu

Texas A&M University School of Law

Jorge L. Contreras

University of Utah - S.J. Quinney College of Law

Yang Yu

Shanghai University of International Business and Economics

Date Written: October 7, 2021

Abstract

When adjudicating high-value cases involving the licensing of patents covering industry standards such as Wi-Fi and 5G (standards-essential patents or SEPs), courts around the world have increasingly issued injunctions preventing one party from pursuing parallel litigation in another jurisdiction (anti-suit injunctions or ASIs). In response, courts in other jurisdictions have begun to issue anti-anti-suit injunctions, or even anti-anti-anti suit injunctions, to prevent parties from hindering the proceedings in those courts. Most of these activities have been limited to the United States and Europe, but in 2020 China emerged as a powerful new source of ASIs in global SEP litigation.

The comparative law literature uses the notion of legal transplant to describe the introduction of a foreign legal concept, rule, or procedure. Taking the view that the emergence of ASIs in China represents a new form of transplant from Western legal systems, this article analyzes the transplantation of this procedural mechanism to China. This recent development can be viewed as both surprising, given China's civil law tradition, and predictable, considering the country's prominence in global technology markets. Equally predictable have been the strong reactions of foreign courts and policymakers to China's use of this mechanism, which has now proceeded at a pace that outstrips that of any other country.

This article traces the emergence of ASIs in China by examining how the Chinese legal system has adapted a procedural mechanism that has been repeatedly used in the United States and other jurisdictions. The article further elucidates the internal and external forces that led to the mechanism's rapid adoption in China. It sheds new light on the process of legal transplantation in the twenty-first century as well as its global ramifications.

Keywords: patent, FRAND, standards, anti-suit injunction, China

Suggested Citation

Yu, Peter K. and Contreras, Jorge L. and Yu, Yang, Transplanting Anti-suit Injunctions (October 7, 2021). American University Law Review, Vol. 71, pp. 1537-1618, 2022, Texas A&M University School of Law Legal Studies Research Paper No. 21-40, University of Utah College of Law Research Paper No. 472, Available at SSRN: https://ssrn.com/abstract=3937716

Peter K. Yu

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX Tarrant County 76102
United States

HOME PAGE: http://www.peteryu.com/

Jorge L. Contreras (Contact Author)

University of Utah - S.J. Quinney College of Law ( email )

383 S. University Street
Salt Lake City, UT 84112-0730
United States

Yang Yu

Shanghai University of International Business and Economics ( email )

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