71 Am. U. L. Rev. 1537 (2022).

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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.

* J.D., Benjamin N. Cardozo School of Law; B.A., University of Wisconsin-Madison. Regents Professor of Law and Communication and Director, Center for Law and Intellectual Property, Texas A&M University. He is grateful to Wu Wei for research assistance.

** J.D., Harvard Law School; B.S.E.E., B.A., Rice University. Presidential Scholar and Professor of Law, University of Utah S.J. Quinney College of Law.

*** (于洋) Ph.D. in Law, Fudan University; European Master in Law and Economics, Erasmus Mundus Scholarship. Associate Professor, School of Trade Negotiations, Shanghai University of International Business and Economics; Visiting Scholar, University of Utah S.J. Quinney College of Law (2018); Visiting Scholar, American University Washington College of Law (2016).