Transplanting Anti-suit Injunctions
56 Pages Posted: 7 Oct 2021 Last revised: 7 Jan 2022
Date Written: October 7, 2021
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 their own legal proceedings. 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 adoption by a jurisdiction of a foreign legal concept or procedure is referred to as transplantation, and the ASI mechanism in China represents a new form of legal transplant from Western legal systems. This Article analyzes the transplantation of the ASI to China—a development that 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 recent use of this procedural mechanism 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 rapid adoption of this procedural mechanism 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
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