Determining Damages in Trade Secret Cases: China’s Landmark Case vs. U.S. Experiences

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Category: SinoInsights™

Image: Mohamed Mahmoud Hassan, Installment, Car, Bank, Percentage (Publicomainpictures.net)

Judicial protection of intellectual property (“IP”) rights in China has been perceived to be limited because, among other problems, the amounts of damages awarded by Chinese courts in IP infringement cases have historically been small. However, this state of affairs may be changing, as China’s Supreme People’s Court (“SPC”) rendered a landmark judgment in a case involving large-scale infringement of trade secrets, allowing the victims to receive an amount equivalent to almost USD 90 million as compensation. As analyzed by Nathan Harpainter and David Zhao, Co-Managing Editors of SINOTALKS®, the innovative approach taken by the SPC to calculate the damages in the landmark case is essentially based on the concept of “unjust enrichment”. The steps followed by the SPC to do the calculation are helpful but inadequate. To help China develop its jurisprudence in this important area, the two co-authors discuss related U.S. experiences.Read more

Guiding Case No. 235

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Category: SinoInsights™

Image: George Hodan, Judge Gavel (Publicdomainpictures.net)

In November 2024, China’s Supreme People’s Court released Guiding Case No. 235 to illustrate its new, proactive approach to recognizing and enforcing foreign judgments.Read more

WeRide Zooms into the Global Autonomous Vehicle Industry

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Category: SinoInsights™

Image: Petr Kratochvil, Busy Road Light Trails (Publicomainpictures.net)

After BYD announced that it has licenses to test Level-3 (i.e., “conditional automation”) autonomous driving on high-speed roads in China, the company’s ambition to move into the autonomous vehicle industry has become clear. However, BYD’s path to success in this industry is unlikely to be smooth because of competition from WeRide, a forerunner with a strong foundation in the industry. Equipped with Level-4 (i.e., “high driving automation”) technology, WeRide has put into operation multiple innovative products, including Robotaxis, Robobuses, and Robovans. What factors contribute to WeRide’s success? Drawing on her extensive experiences in studying Chinese companies, especially those in the technology industry, and her meetings with specialists who are familiar with the autonomous vehicle industry in China, Lin Liu shares her analysis in this article.Read more

The United States Approach to Foreign Sovereign Immunity

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Category: SinoInsights™

Image: George Hodan, Judge Gavel (Publicdomainpictures.net)

Written by Judge John M. Walker Jr., a senior judge on the United States Court of Appeals for the Second Circuit, this article provides an overview of the U.S. approach to foreign sovereign immunity. First, it traces the doctrine’s origins in early American jurisprudence and recounts the development of the doctrine and its eventual codification in the Foreign Sovereign Immunities Act (“FSIA”) of 1976. The article then summarizes relevant provisions and certain judicial interpretations of the FSIA.Read more

SinoInsights

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Category: SinoInsights™

Image: George Hodan, Food Labels (Publicdomainpictures.net)

The Supreme People’s Court has established an impressive framework to facilitate the use of Guiding Cases but has not given clear guidance on how to handle inconsistent applications of a Guiding Case by Chinese courts. In this article, the authors analyze the inconsistent applications of Guiding Case No. 60 by several important courts in China, discuss potential problems associated with such inconsistency, and propose solutions to these problems.Read more

SinoForum&Foresight

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Category: SinoInsights™

Image: Nicole Avagliano, Reflection Time Through A Lens Ball (Publicdomainpictures.net)

After identifying poverty and conflict as two most noticeable global human rights problems in the world today, Professor Wang Lifeng explains how China aims at working together with countries around the world to find solutions to tackle these two major problems.Read more

Guiding Case No. 196: Supreme People’s Court Adopts a Liberal Approach to Arbitration While Leaving Room for Unexplored Situations

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Category: SinoInsights™

Image: Petr Kratochvil, Science And Technology (Publicdomainpictures.net)

Guiding Case No. 196 (“GC196”) holds that, under Chinese law, an agreement to arbitrate is independently enforceable, even if the agreement was intended to be part of a larger contract that never fully formed. Through a comparison of GC196 with U.S. law, Tyler Atkinson explains why GC196 shows that Chinese law is arguably more favorable to arbitration than the law of the United States, a jurisdiction that, itself, strongly favors arbitration. He also shares practical insights about what companies affected by GC196 should do to avoid the risk of being forced into arbitration.Read more

SinoForum&Foresight

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Category: SinoInsights™

Image: Gerd Altmann, The Age Of AI Has Begun (Publicdomainpictures.net)

To compete with ChatGPT and similar AI products for market share, Baidu launched ERNIE Bot in March 2023. How far ERNIE Bot and other AI industries will be able to develop in China depends on Chinese policies and legislation on AI. Guangzhou, Shenzhen, and Shanghai have taken the lead to formulate their local regulations in accordance with China’s national policies and have been developing AI industries in their own special ways. Which city should foreign investors choose to enter China’s AI market?Read more

Guiding Case 196

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Category: SinoInsights™

Image: Mohamed Mahmoud Hassan, Contract Signature (Publicdomainpictures.net)

In December 2022, the Supreme People’s Court of China released Guiding Case No. 196 to provide significant guiding principles regarding the validity of an arbitration clause even though the contract that contains the clause has not been formed. These principles will have a considerable impact on legal practice.Read more

Guiding Case 60

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Category: SinoInsights™

Image: Marina Pershina, Olive Oil (Publicdomainpictures.net)

In May 2016, the Supreme People’s Court of China released Guiding Case No. 60 to provide guiding principles regarding, inter alia, the interpretation of certain food safety standards. This piece explains why these principles still have guiding value even though the food safety standards involved in this case are no longer effective.Read more

SinoForum&Foresight

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Category: SinoInsights™

Image: Charles Rondeau, Green Dollar (Publicdomainpictures.net)

Core Climate was launched by Hong Kong Exchanges and Clearing Limited in October 2022. How can Hong Kong, a special administrative region of China, leverage Core Climate to assist the country’s Greater Bay Area and other regions to accomplish their climate goals? Will Core Climate be able to help Hong Kong become a leader in sustainable finance in Asia?Read more

SinoForum&Foresight

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Category: SinoInsights™

Image: Ron Mzr, Haifa (Publicdomainpictures.net)

China and Israel have reportedly accelerated negotiations on their long-anticipated free trade agreement (“FTA”), raising hopes that the FTA may come to fruition by the end of 2022 to mark the 30th anniversary of the two countries’ relations. What lessons can be learned from the decade-long activity of Chinese multinational corporations specializing in infrastructure projects in the Israeli market?Read more

Guiding Case 177

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Category: SinoInsights™

Image: Linnaea Mallette, Giant Clam Under The Sea (Publicdomainpictures.net)

In December 2021, the Supreme People’s Court of China released Guiding Case No. 177. The Guiding Case illustrates how China performs its obligations under the Convention on International Trade in Endangered Species of Wild Fauna and Flora to protect marine biodiversity.Read more

SinoInsights

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Category: SinoInsights™

Image: Mohamed Mahmoud Hassan, Lightbulb, Idea, Innovation (Publicdomainpictures.net)

How can the development of China’s Case Guidance System promote the country’s judicial protection of intellectual property rights, helping achieve the goals set forth in the Plan for the Judicial Protection of Intellectual Property Rights in People’s Courts (2021-2025)?Read more

Guiding Case 115

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Category: SinoInsights™

Image: Anastasia Amstutz, Windshield Rain (Publicdomainpictures.net)

In December 2019, the Supreme People’s Court of China released Guiding Case No. 115. Four months later, in April 2020, the second-instance judgment upon which this Guiding Case is based was selected by the Supreme People’s Court as one of the “Top 10 Intellectual Property Cases of Chinese Courts in 2019”. Why is this case so important? It is all related to the concepts of “act preservation” and “functional features” of inventions.Read more

Guiding Case 109

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Category: SinoInsights™

Image: Kevin Casper, San Jose Costa Rica (Publicdomainpictures.net)

In February 2019, the Supreme People’s Court of China released Guiding Case No. 109 and five other Guiding Cases to illustrate how Chinese courts handled issues related to the country’s Belt and Road Initiative.  Guiding Case No. 109 specifically shows the Supreme People’s Court’s firm adherence to legal rules and principles that protect the value of the “payment on demand” system of independent guarantees.Read more

Interview Patrick Dransfield

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Category: SinoInsights™

Patrick Dransfield, Principal of Clearway Communications and Co-Founder of the Managing Partners’ Club, explains in this interview why he has had success in forging strong relationships with private practitioners and in-house counsels at various corporations across Asia, the Middle East, and the United Kingdom.  In addition, he shares his thoughts about where the legal industries in emerging markets are heading.Read more

Guiding Case 100

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Category: SinoInsights™

Image: Lilla Frerichs, Indian Corn 1 (Publicdomainpictures.net)

Before the release of Guiding Case No. 100, the Supreme People’s Court of China released Guiding Case No. 92 to establish this principle: in a case involving infringement of rights to a new plant variety, when the related DNA fingerprinting test result cannot provide a clear answer, the allegedly infringing party, i.e., the defendant, has the burden to prove that the allegedly infringing plant is different from the plant for which variety rights have been granted.  Guiding Case No. 100 shows what the defendant can do to meet this burden of proof.Read more

Guiding Case 160

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Category: SinoInsights™

Image: Heru Purwanto, Pomelo On The Tree (Publicdomainpictures.net)

Guiding Case No. 160 addresses a fundamental issue: when rights to a new plant variety are granted, what falls within the scope of protection?  According to China’s legislation, propagation materials of the plant for which variety rights have been granted are clearly protected.  Yet, what are “propagation materials”?  Unfortunately, no definition can be found in China’s legislation.  Guiding Case No. 160 fills the legal gap by setting the criteria for such determination.Read more

Guiding Case 92

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Category: SinoInsights™

Image: Andrew Schmidt, Corn On The Cob (Publicdomainpictures.net)

Guiding Case No. 92 provides guidance on an important issue frequently encountered in cases involving infringement of rights to new plant varieties: how to determine whether two plants are of the same variety, when the related DNA fingerprinting test result cannot provide a clear answer.  According to this Guiding Case, when this happens, the allegedly infringing party, i.e., the defendant, has the burden to prove that the allegedly infringing plant is different from the plant for which variety rights have been granted.  How did the court justify the shifting of the burden to the defendant?Read more