Thursday, January 6, 2022

Papers on Antisuit Injunctions

Last month I mentioned the Chinese University of Hong Kong's December 16 workshop on antisuit injunctions and FRAND litigation.  Here are abstracts and links to the two papers that were discussed:

1.  The first was Dicky King Fung Tsang & Jyh-An Lee, The Ping-Pong Olympics in Antisuit Injunction in FRAND, 28 Mich. Tech. L. Rev. __ (forthcoming 2022).  Here is the abstract:

In the past two years, antisuit injunctions (ASIs) and subsequent legal proceedings associated with standard-essential patents (SEPs) subject to fair, reasonable, and nondiscriminatory (FRAND) commitments have proliferated in multiple jurisdictions. This phenomenon reveals not only the transnational nature of technical standards and FRAND-encumbered SEPs but also the jurisdictional tension between different national courts. This Article explains the emergence of ASIs in FRAND scenarios and recent developments in six jurisdictions with major interests in standard development and adoption. Countries have developed different approaches to ASIs based on their own domestic rules and interests. We argue that to preserve the efficiency of technical compatibility and international comity, a pressing challenge at the policy level is to facilitate the legal compatibility between jurisdictions. Currently, courts in multiple jurisdictions are competing to grant ASIs and anti-anti-suit injunctions (AASIs), leading to fragmented decisions and significant costs for global standardization. We propose to include an exclusive forum selection clause in the policy documents of standard-setting organizations (SSOs) to reduce undesirable transaction costs stemming from ASIs and subsequent legal actions. Our proposal is more realistic and cost-effective than others concerning FRAND dispute resolution. 

For anyone who's interested, here are the slides of my comments on this paper.

2.  The second was Peter K. Yu, Yang Yu & Jorge Contreras, Transplanting Anti-suit Injunctions, 71 Am. U. L. Rev. ___ (forthcoming 2022).  Here is the 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 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.


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