WTO Arbitration: China's anti-suit policy inconsistent with TRIPS agreement
08-02-2026 Print this page
China's anti-suit injunction policy (“ASI”), which frustrates patent holders enforcement of standard essential patents (SEPs) in foreign courts, inconsistent with TRIPS Agreement.
The ASI policy is a rule or norm of general and prospective application. Obligation to “give effect” to the provisions of the TRIPS Agreement (Article 1.1 TRIPS) is to do so without frustrating the functioning of the systems of protection and enforcement of IP rights implemented by other Members in their respective territories.”
WTO members must not frustrate the patent owner’s ability to exercise the exclusive rights conferred on it (Article 28.1 TRIPS) by another WTO Member […], i.e. to prevent third parties not having the patent owner's consent from making, using, offering for sale, selling, or importing the patented products.
ASI policy frustrates the patent owner’s ability to exercise the right to conclude licensing contract (Article 28.2 TRIPS). The availability of ASIs to SEP implementers under the ASI policy alters the negotiating position of SEP holders in a fundamental way. It removes the main incentive for SEP implementers to negotiate with a SEP holder a licensing contract on FRAND terms.
