From Domestic Patent Law to a Global Trade Dispute: Disclosing Core Patent Decisions as an International Obligation

Encouraged by the impending commercial and ‘geopolitical’ assertiveness and global-market exposure of Chinese technology manufacturers and vendors (especially large state-owned conglomerates in the telecommunications sector),Footnote ¹ and possibly as a judicially enforced form of protectionism,Footnote ² litigation on standard-essential patents (SEPs) in the People's Republic of China (PRC) is on the rise both qualitativelyFootnote ³ and quantitatively,Footnote ⁴ sparking implications for technology standardisation efforts and transnational dealings which bear inter alia an international law (IL) dimension. Indeed, Chinese courts tend to issue ‘anti-suit injunctions enforced through daily penalties in case of infringement, which are typically set at the maximum level allowed for under Chinese Civil Procedure Law, and accumulate daily’.Footnote ⁵ This is rapidly becoming common practice, and was already decided with reference to a number of major intellectual property (IP) cases, including Huawei v Conversant,Footnote ⁶ Xiaomi v InterDigital,Footnote ⁷ ZTE v Conversant,Footnote ⁸ OPPO v Sharp,Footnote ⁹ and Samsung v Ericsson.Footnote ¹⁰ Such decisions are issued in accordance with a group of recently enacted laws and guidelines,Footnote ¹¹ and some of them ‘also contain measures relating to initiating court procedures on licence questions and royalty rates’.Footnote ¹²

These cases are cited here for context only, also owing to the fact that other scholars have already discussed their background and implications at length.Footnote ¹³ The present contribution will rather address these disputes from a somewhat unusual angle, investing the extent to which (certain categories of) domestic court cases may prove to be of precedential value for China in fulfilling its World Trade Organization (WTO) obligations under IL. Indeed, some of the cases cited – and many more – have been included by China in special collections, which some scholars see as ‘hybridising’ the Chinese civil law legal system by embodying de facto binding references in domestic IP adjudication. For instance, the Sharp v Oppo case was also selected by the Supreme People's Procuratorate within the ten major intellectual property cases,Footnote ¹⁴ and the Conversant v Huawei case was qualified as a ‘typical case’ (典型案件 diǎnxíng ànjiàn) by the Supreme People's Court (SPC).Footnote ¹⁵

The IL issue at stake is that WTO law (namely, Articles 63.1 and 63.3 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)Footnote ¹⁶) stipulates that precedents should be published, and yet China maintains that such cases, while of remarkable importance, are not binding precedents in the strict sense, which is why it is not obliged to disclose them systematically – and indeed does not even do so for key cases.Footnote ¹⁷ What categories of Chinese law should be considered ‘precedential’ for the sake of WTO compliance? And what broader trends does China's practice outline or anticipate in terms of precedent-identifying cases within hybridised civil law systems? This article aspires to provide a comprehensive and up-to-date account of these matters, which are significant to IP governance (and beyond) both in China and globally.

China, the US, and the EU: A Two-Decade-Long Saga at the WTO

The saga at the WTO began in 2005 with a diplomatic note from the United States (US) to China,Footnote ¹⁸ demanding that the Chinese government disclose the judicial reasoning in most of the IP cases before Chinese courts, abiding by WTO obligations.Footnote ¹⁹ The note was followed up on several occasions in the ensuing years, but at the time of writing has yet to receive a response that the US deems satisfactory. If anything, tensions mounted,Footnote ²⁰ unilateralism ensued therefrom,Footnote ²¹ supply-chain disruption loomed,Footnote ²² and mistrust between the two WTO members only increased.Footnote ²³ Indeed, against the broader backdrop of its so-called ‘trade war’ with China, whose IP component is fundamentalFootnote ²⁴ and spans from forced technology transfersFootnote ²⁵ to trade secrets,Footnote ²⁶ the US is constantly and more widely concerned about China's transparency within the WTO system than ever before.Footnote ²⁷ In this context, it is perhaps useful to note the distinction between transparency before (examined here) and at the WTO;Footnote ²⁸ the former refers to China's wider attitude vis-à-vis its WTO obligations (normative alignment, compliance rate, etc), and not just to the behaviour and decisions of Chinese representatives in this international organisation.

A replyFootnote ²⁹ reached the US a few months later the same year, dismissing the Americans’ request on four main legal grounds: first, China argued that no such thing as a ‘general application’ exists for case law in civil law systems; second, it observed that quantity-wise, the US request was massive and administratively overburdensome; third, it stressed that WTO law only grants parties the right to request case disclosure, while there is no corresponding obligation to disclose them, or to do so promptly and thoroughly; and finally, it emphasised that any WTO obligation has to be premised on good faith, to the effect that those who request disclosure should seek to shed light on specific legal matters rather than burden the other party with general and unreasonable demands. The third and fourth points would benefit from a review of the boundaries and limitations of – and exceptions to – bona fides in international trade law and cognate IL disciplines, but this is beyond the scope of this article. Rather, I will draw on the first Chinese rebuttal in order to analyse the meaning of ‘precedent’ under Chinese and international law, employing this ‘case-study’ as a reference to trace the increasing hybridisation of legal systems, as well as the key sociological and geopolitical transformations underpinning this hybridisation. As such, while this article is primarily addressed, and will hopefully appeal, to international legal scholars and practitioners, it may also prove helpful to international relations or socio-legal academics, including those specialising in trade governance from a political economy perspective.

Coming back to the saga, a rejoinderFootnote ³⁰ from the US followed suit the next day, but it fell temporarily unheard. The fourth act of this multi-bilateral exchange of diplomatic dispatches was inaugurated a year later during an ordinary review of China at the WTO, when the US lamented that China had never followed up on its rejoinder;Footnote ³¹ in the same document, the US representatives added that China should have translated key judicial contributions to its legal order, including SPC Judicial Interpretations (JIs)Footnote ³² in compliance with paragraph 334 of the Working Party Report accompanying China's Protocol of Accession to TRIPS. China remained silent on the matter, but an institutional note followed five years later by voice of the WTO Secretariat. As a premise, it assured all parties that its sole purpose was

However, the Secretariat went on to note that

The guidance above presumably implicates that the ordinary meaning of ‘general application’ in WTO jurisprudence is authoritative at least as far as disputes based on the existing text are concerned. In other words, amended interpretations may always be tabled, but they should be introduced and accepted only after states express due commitment to them over time, to the extent that previous interpretations become obsolete and thus evidently representative of emerged disagreement. Provided that such new interpretations are reported in informal working documents over time, they may well crystallise novel readings of the treaty text, making ‘it even more important [for states] to raise alternative interpretations’,Footnote ³⁵ and to consistently endorse and adhere to them over time.

In fact, WTO rulings are even persuasive for extra-WTO courts dealing with trade disputes, the prime example being the Court of Justice of the European Union (CJEU).Footnote ³⁶ Similarly, the holdings of the International Court of Justice (ICJ) or the European Court of Human Rights (ECtHR), may constitute res interpretata decisions, ie, while only binding on the parties to the original disputes, they will have an impact far beyond them.Footnote ³⁷ In other words, even though courts applying international law are largely governed by the civil law tenet that decisions are only binding on the parties to the specific dispute being litigated, it is widely accepted (and indeed increasingly theorised) that in practice this is no longer the case. This is because courts tend to value consistency – and are fiercely criticised when they fail to do so – unless they explicitly decide to overturn their previous legal findings. However, such dramatic overturns are rare, mostly triggered by disruptive changes in societal expectations in the aftermath of history-making events (such as the 9/11 attacks and the Wikileaks scandal in relation to antiterrorism legislation and surveillance policies, respectively). The ECtHR's repeated references to instruments ‘of general application’Footnote ³⁸ might shed some light on the status of case-law in a civil law system, but the Court has never explicitly referred to case law, so its jurisprudence will not be helpful. Before these matters are elaborated further, it is essential to trace the aftermath of the aforementioned saga.

In 2021, the European Union (EU) submitted a disclosure requestFootnote ³⁹ to China modelled on the American one, to which the Chinese representatives responded in an exceedingly dry and concise manner.Footnote ⁴⁰ No agreement was reached, but as the EU is largely dominated by civil law jurisdictions (a fortiori after the United Kingdom's (UK) departure), this request can be considered more politically, and legally, compelling than that of the US. The new chapter of the saga witnesses the EU reiterating its points within another – broader – document,Footnote ⁴¹ which also reports disclosure requests under Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), Article 64.1 of TRIPS, and Article XXII:1 of the General Agreement on Tariffs and Trade (GATT).

For the purposes of this article, I will again address the EU's submission that China has failed to fulfil its obligations under Articles 63.1 and 63.3 of TRIPS, as already seen above. The EU's representatives note, inter alia, that ‘by issuing worldwide anti-suit injunctions for act preservation in patent litigation and imposing maximum penalties on a daily basis, [China] has not applied and administered its laws … in a uniform … manner’, a uniformity that could plausibly be improved or better verified by other WTO members, had China decided to share the reference case law on which its courts rely with its trade partners. Once again, China failed to respond, and in the meantime other governments, including those of Japan and Switzerland, had echoed the EU/US concerns or submitted their own petitions.Footnote ⁴² It is rumoured, however, that the EU refrained from insisting as some of its members, including Italy, vetoed further pressure on China on this point, arguing that other China-related dossiers, such as technology transfers and takeovers, were more pressing at the WTO and beyond.

The Negotiating Roots and Teleological Foundations of the TRIPS Transparency Requirement

Time has come to delve deeper into the teleology of the main WTO obligation at stake, contained in Article 63.1 of TRIPS, which reads as follows:

Before attempting an exegesis of this requirement, it is necessary to mention the two lines of disagreement which ran through the whole drafting process. First, Article 63.1 of TRIPS should be framed within the more general moves that made negotiations towards TRIPS a battleground between developed and developing countries. Although this dichotomous terminology may seem obsolete today,Footnote ⁴⁴ it had a tangible identity relevance at the time of negotiationsFootnote ⁴⁵ – although even then with significant nuances. Another dichotomy is that between civil law and common law jurisdictions, which traversed the whole negotiating exercise far beyond the significance to be credited to case law. For instance, to contrast it with the copyright domain, TRIPS diverged from the Berne Convention (mostly responding to the preferences of civil law jurisdictions) in offering no explicit

It is further essential to note that the obligation does not extend to all judgments; and Article 41(3) of TRIPS specifies that ‘decisions on the merits … shall be made available at least to the parties to the proceeding without undue delay’,Footnote ⁴⁷ but not necessarily to the general public. The fact that there are no general disclosure or publication obligations for TRIPS cases suggests that when it comes to domestic cases, the drafters plausibly did not intend to overburden the parties with all-comprehensive disclosure obligations, either. This is why in this paper I will try to identify the limited classes of cases which would warrant disclosure on the part of China (and civil law jurisdictions more broadly).

To evaluate the scope of these transparency requirements, it is advisable to turn to their object and purpose,Footnote ⁴⁸ rather than adhering to an obsolete approach that endeavours to mechanically retrieve terms’ ordinary meaning by recourse to the Oxford Dictionary or any other apparently objective external referenceFootnote ⁴⁹ – especially considering the debates surrounding IL's English-infused neoimperialism.Footnote ⁵⁰ While WTO Panels themselves explicitly committed to the basic rules of interpretation as set out in the Vienna Convention on the Law of Treaties (VCLT),Footnote ⁵¹ in practice, such rules have rarely proven useful or conclusive in resolving a trade-related dispute,Footnote ⁵² and indeed textual interpretation should be abandoned in favour of teleological interpretation.Footnote ⁵³ When parties disagree over the scope of an international obligation, it is unlikely that such conflicts stem from disagreements about the general meaning of certain words. Instead, it is more plausible that the parties are unable to find common ground on the intended consequences of such words or their underlying policy rationale, societal value, and/or geopolitical background. Additionally, reaching consensus on terminological meaning per se is not necessarily less burdensome a process, as most terms are fraught with presumptions and assumptions and accommodate potentially endless discussion of possible alternative shades of interpretation – an issue faced by the ICJ itselfFootnote ⁵⁴ and echoed in most domestic legal systems.Footnote ⁵⁵ One may attempt to draw rudimentary inferences from cognate – and more frequently employed – expressions such as ‘laws of general application’, but terminological inspections will mostly just reiterate the original position of all actors involved. One must also be cautious with translations: terminological comparisons can be established with eg, Chinese ‘principles’ of general application,Footnote ⁵⁶ but this is more for semiotics than for addressing the IL contention at the core of the debate.

In assessing the treaty's purpose, it is useful to recall that TRIPS, for the first time, brought transactions in IP rights (IPRs) under the umbrella of public international law (PIL) through the backdoor of trade.Footnote ⁵⁷ This choice speaks to the strategic significance of IPRs for bilateral and multilateral relations among states, and ultimately for geopolitics – IPRs have become public assets worthy of bargaining. The trend has only intensified in recent years, with IP chapters being negotiated in every free trade agreement (FTA).Footnote ⁵⁸ This shift of bringing IPRs into the public sphere is only apparently in contrast with a process – WTO negotiations, including towards TRIPS – that marked a milestone for many jurisdictions in their transition to open market economies, and serves as a reminder that States are indeed essential players in orchestrating the course of open markets.Footnote ⁵⁹ WTO panels do not seem entirely comfortable with the idea of IP-intensive disputes bearing a public dimension,Footnote ⁶⁰ but that does not make the TRIPS revolution any less momentous in this respect.

This brings me to the crux of the contention: what is the exact scope of ‘judicial decisions’? If they generally encompass both judicial decisions and administrative rulings under the overarching definition of ‘cases’, which are to be deemed ‘final’?Footnote ⁶¹ And when it comes to their applicability ‘beyond the parties’, what parties are being referred to? To what dispute? And what makes a judgment ‘final’? One may posit that a ruling is final either when it has not been further appealed even though it could, or when it cannot be appealed as it has undergone last-instance proceedings in the relevant jurisdiction. In this respect, it is also worth wondering whether judgments in China can now ‘be deemed erroneous in the application of law and thus … appealable [insofar as they differ] from an applicable guiding case’.Footnote ⁶² In China's response to the EU, it is objected that ‘“typical” cases, “typical technology” cases, and “big” cases [are] for reference and have no legal effect of general application’.Footnote ⁶³ However, the absence of legal effect does not waive the obligation for disclosure: according to TRIPS, cases must be disclosed whenever they bear general application, regardless of the their formality (legal effect). Although an argument can be made about the difference between ‘application’ and ‘applicability’ (which will be discussed below), it is unlikely that Chinese negotiators at the time were trained to pay sufficient attention to this terminological sophistication – which is exactly why it is wiser to consider the substance of delegations’ choices, whenever possible. In evaluating this substance, the interpretation that upholds, rather than undermines, the very purpose for parties to engage in the treaty-making process should take precedence (ut res magis valeat quam pereat).Footnote ⁶⁴

The role of language in negotiating agreements and understanding definitions – with language understood as a system of values and cultural upbringing, not as pedantic legalistic diatribes about ‘ordinary’ meanings which are mostly a fantasy – continues to be understudied when it comes to the relationship between China and ‘the West’. One impediment IL doctrines face in integrating Chinese legal thinking into a largely Western-shaped international legal order derives from the West's inherent linguistic first-mover advantage. Since treaties are conceived for and negotiated by English-speaking audiences and elites, they naturally tend to accommodate legal dichotomies and expressions which derive from normalised Western conceptions of the law,Footnote ⁶⁵ including ‘bindingness versus non-bindingness’. When it comes to the ‘precedential’ value of cases, China's case law should rather be understood in terms of degrees of authority, circles of deference, and harmonious progress; to appreciate this diversity, ‘no presumption of similarity should automatically apply’.Footnote ⁶⁶ Problematically, most Westerners would regard rules and principles as interrelated but distinguishable, yet that is not necessarily the case in China. According to Dworkin, the difference between rules and principles lies in the fact that the former decide specific cases in an all-or-nothing fashion, while the latter incorporate the different shades that allow judges to weigh contrasting arguments to arrive at a more equitable outcome.Footnote ⁶⁷ In common law jurisdictions, both seem to be found mostly in case law, but is it true that civil law jurisdictions contain them in laws instead? Perhaps it is more accurate to presume that cases serve a similar – though not as strong – function in civil law systems; dichotomies are dissipating fast and, again, prove unhelpful in explaining how things actually work in contemporary (and arguably future) legal systems.Footnote ⁶⁸

Before turning to matters of time, one note on the ‘applicability vs application’ conundrum is due. I noted above that it is unlikely that the negotiators paid attention to this distinction and chose the most appropriate term: they probably went for the most familiar one, at least as far as the Chinese delegation is concerned. Despite this, it is salient that TRIPS mentions ‘application’ rather than ‘applicability’, since the latter term was generally known to the drafters; after all, ‘applicability’ features twice in TRIPS – in the preamble, and in Article 24.1. Could it be inferred from this that ‘application’ was truly meant to indicate that cases must in fact have already been applied in a significant number of other decisions before the obligation to disclose them is triggered? If so, how many other decisions would suffice? Also, should cases be applicable to foreigners as well, in order to trigger a disclosure obligation? More generally, by whom and/or to whom (eg, rightsholders, counsels, and judges) should cases be applied in order to be relevant? They might possibly need to have been applied to court cases in a general sense without specifying to/by whom exactly.

Time, too, is a cardinal perspective from which to consider legal dilemmas. Publication requirements do exist and apply in perpetuity, but after how long are states required to disclose court cases?Footnote ⁶⁹ And is it legitimate to expect states to publish officially through only one channel, perhaps a paper-based one, even if it takes longer than institutional apps or chat services? Time is an essential, albeit often neglected, variable in international as much as domestic law, in that it might shape what States consider lawful as well as their formal and informal expectations. It is significant that a legal and judicial system like China's is ‘in transition’ – though one could rebut that to an extent, all systems are in constant flux. One's conception of time intertwines with one's idea of authority and stability. Indeed, ‘[t]he values of legal certainty, stability, and predictability are highly prized in Western legal traditions, but do not carry as much weight in China due to a different attitude toward change’,Footnote ⁷⁰ and that would somehow make sense of the claim that there are no cases of general application in China. The issue of predictability strikes at the heart of the TRIPS paradox of being ‘an institution of stability that aims to promote instability’Footnote ⁷¹ (ie, innovation). Coming back to modes of publication, perhaps the negotiators did not have in mind a world shaped by the Internet (especially this Internet), where one may expect States to promptly publish cases online, or indeed to make them widely available online even after they have been published in print. This is indeed an ontological revolution which certain jurisdictions may not be comfortable with – when they acceded, they must have assumed that timely disclosure could have happened in a few weeks or months, as opposed to a few hours or minutes.

Yet another point of contention relates to reasonableness. What constitutes a reasonable number of cases to be disclosed? Is disclosure and the facilitation of participatory awareness among all parties the actual and prerequisite spirit of the WTO, to the extent of overring other legitimate interests on the part of state parties? If the request were to be scaled down, the matter of ‘general’ application would surface: while the meaning of ‘application’ may not be straightforward to grasp, its accompanying adjective might be even more contentious. I will elaborate later on what might constitute a case of general application in China, but in a more general sense, the scope of the disclosure falls within expectations of reasonableness, which are ultimately grounded in a spirit of cooperation and bona fides. Good faith itself, despite its inclusion in Articles 26 and 31(1) of the VCLT, is by its very nature an indecipherable criterion for deciding disputes, subject to the geopolitical discourses of all parties involved. In the matter being scrutinised here, it is evident that a clause cannot de facto apply to and bind solely a part of the signatories (ie, common law jurisdictions), especially as civil law jurisdictions formed the overwhelming majority of negotiators! Nevertheless, it might be equally tenable for civil law parties to argue that if cases in common law serve roughly the same function as laws in civil law (that of guiding the judge throughout the resolution of similar cases), then laws are indeed disclosed and virtually all of them are by definition of general application (just like most cases in common law). If one were to take a formalistic approach to the contention, civil law jurisdictions could argue that common law ones also disclose their laws. However, this argument fails to aid in understanding how a case will be decided, mirroring how publishing cases is not key for civil law jurisdiction and disclosing them might foster inaccurate expectations. To escalate the argument, one could argue that civil law jurisdictions are already more predictable than common law ones. In the latter, the secondary position credited to laws results in primary weight being attributed not only to extemporary judicial decisions bearing precedential influence, but also to those which fill specific circumstances through judicial discretion instead of law's textual comprehensiveness. To exemplify (again with copyright law),

It is true that negotiating TRIPS was

For our purposes, however, the point to notice is that while exceptions are codified, limitations are discretionally applied by judges; hence, the former makes the IP environment slightly more predictable. Nonetheless, because copyright law has – to an extent – been ‘socialised’ from the empire's barycentre (the US) to the once-periphery (including East Asia), Chinese legislators have consistently found it puzzling to retain the case-tailored discretionary nature of copyright protection, while at the same time entrusting legislation with exclusive control over the outcome of copyright cases – in this field, the law is simply not enough:

Uniformity, fairness, and stability – in one word, predictability – are, in turn, key values at the WTO.Footnote ⁷⁵

The rationale behind the disclosure of laws is that whenever they are not published, their intended addressees will not be bound by them.Footnote ⁷⁶ While ignorantia legis non excusat, publication is a prerequisite for giving effect to the law. With unpublished case law, the risk of ignorance arguably shifts to the other party, at least where the non-publishing jurisdiction is a civil law one. Conversely, when the non-publishing jurisdiction adopts a common law system, the other party may claim not to be bound by undisclosed laws. This approach is also reflected in Article X.2 of the GATT, pursuant to which ‘no measure of general application taken by any contracting party … imposing a new or more burdensome requirement … shall be enforced before such measure has been officially published’.Footnote ⁷⁷ When a civil law party such as China has to decide on new cases, these will not be binding to the same extent as its laws; however, the tenability of this dichotomy between civil and common law systems remains a pertinent question.

China's engagement with transparency requirements stemming from its international trade obligations is far-reaching on its court system and administrative procedures, and exhibits a long history that vastly exceeds the specific TRIPS obligation discussed in this article. Scholars tend to agree that if one considers the unfolding of international agreements in the domain of trade, wide-ranging transparency requirements – mostly modelled after Euro-American values, capacity, expertise, and expectations – have been effectively imposed on other jurisdictionsFootnote ⁷⁸ through a supposedly ‘Global’ Administrative Law.Footnote ⁷⁹ Within this context, the case of East Asia is of particular importance, given the geoeconomic power of East Asian countries and their controversial developmental-governmental trajectoriesFootnote ⁸⁰ (whereby pro capite underdevelopment in some rural areas coincides with the strong performance of these economies as a whole).Footnote ⁸¹ As for China specifically, it has made sweeping efforts to implement systems of review, monitoring, and disclosure of its laws,Footnote ⁸² to the extent that one might hypothesise that its reluctance to undertake similar efforts in relation to case law is partly premised upon its unwillingness to overburden the complex governance of its administrative system if no clear domestic benefit can be generated in return.

Moving on to another segment of the contention at stake, China observed that while a WTO member enjoys the right to demand case disclosure, the requested party has no obligation to follow up (or, to put it slightly differently, to actually disclose those cases). This is indicative of anything but good faith, and yet, the Chinese response might find some residual merit in TRIPS’ negotiating history. Indeed, the obligation that ‘the Party so requested shall make reasonable efforts to supply the information’ – which was already phrased in non-absolute, reasonable-effort lexicon – was explicitly removed from the 25 October 1990 draft TRIPS during the travaux préparatoires (whose relevance stand deeply engrained into PIL).Footnote ⁸³ The preparatory works reveal other background information of relevance here, including that the requirement that cases be promptly disclosed was dropped from the draft dated 1 October 1990, as recommended by Switzerland, as was the consideration that all decisions of international bodies made effective by the party should also be covered by the disclosure requirement – the latter rule was plausibly removed upon objection by the US and Japan.Footnote ⁸⁴ Of relevance here, the formula ‘of precedential value’ as it had originally been proposed by Switzerland was later replaced with ‘of general application’, possibly with the intention of broadening the range of cases, although, as this paper outlines, it ultimately achieved the opposite effect.Footnote ⁸⁵

To draw meaningful analogies, a slightly different legal question was raised by the US in the WTO concerning the precedential status of case law within the WTO system. Although no strict stare decisis applies to their holdings,Footnote ⁸⁶ WTO panels tend to treat similar cases similarly,Footnote ⁸⁷ unless a ‘cogent reason’ demands their departure from previous holdings.Footnote ⁸⁸ Unsurprisingly, the US has misappraised the doctrine, and maintained that WTO panels are straightly treating previous cases as precedents, while civil law jurisdictions such as Brazil and China rebutted that ‘guidance’ is not the same as ‘precedent’.Footnote ⁸⁹ This aligns with a tendency on the part of the US policymakers to superficially dismiss the nuances and sophistication found in domestic legal frameworks other than their own, which in turn seems to lead them to label any competing system as ‘inefficient’ whenever it does not conform to US traditions. This was also evident in the ethnocentric bias and oversimplification reiterated in certain strands of American scholarship.Footnote ⁹⁰ In any event, similar arguments were reiterated in relation to arbitrated – as opposed to adjudicated – trade disputes.Footnote ⁹¹ Interestingly, the term ‘jurisprudence’ (employed to mean ‘case law’ rather than ‘legal theory’) is best derived from the French legal system, which is often considered to be one of the most paradigmatic examples of civil law jurisdictions, while in fact embodying many seeds of ‘precedentism’ that resemble common law traditions more closely than presumed. To exemplify,

Legal historians and comparativists will not be surprised: the bifurcation between civil and common law traditions is a relatively recent phenomenon, with France denying the precedential value of judgments only in the aftermath of the French Revolution.Footnote ⁹³ From a historical standpoint, we might thus assess hybridisation as a kind of foreseeable déjà vu rather than an unprecedented disruption. In fact, only the ‘Google revolution’ (and now the emergence of Chat-GPT and other large language models, as well as – to a lesser extent – generative artificial intelligence in general) has made appreciable fractions of US court history available, thereby demonstrating unequivocally that the purportedly solid common law foundations of the US legal system are more mythical than substantially factual.Footnote ⁹⁴ This perspective prompts scholars to advocate for a reconsideration of the viability of this civil/common law divide.Footnote ⁹⁵ In fact, even in common law jurisdictions, the persuasiveness or binding force of cases is a matter of degreeFootnote ⁹⁶ and depends on several factors,Footnote ⁹⁷ so that even landmark decisions can be overruled if the opportunity arises.Footnote ⁹⁸ While the divide still broadly corresponds to meaningful distinctions, not least as to what it is meant by ‘unity’ and ‘system’,Footnote ⁹⁹ the above serves well as a reminder of the importance of complexifying concepts and eviscerating trends.

All of the above observations have introduced some comparative, analogical, and inferential insights to more comprehensively contextualise the terminological and conceptual scope of the disagreement between Western jurisdictions and China over the subject-matter of their WTO saga. This is not to say that increasingly typical normative resolution tools could not be resorted to in an attempt to untangle the dispute. Admittedly, I would advise holding on to the cultural and geopolitical substance of the stances at stake rather than turning to complex IL rituals. If the latter were preferred, however, the toolbox of ‘systemic integration’ as per Article 31(1)(c) of the VCLT and related work by the International Law Commission (ILC)Footnote ¹⁰⁰ should be considered. To this end, lawyers may wish to explore not only the potential resolution of similar conflicts in other trade-intensive treaties (such as FTAs) to which both China and the EU/US are parties, but also in investment agreementsFootnote ¹⁰¹ and, in particular, human-rights (HR) conventions,Footnote ¹⁰² which are increasingly being scrutinised by WTO panels themselves.Footnote ¹⁰³ In this respect, I shall note that not many HR treaties applicable to both China and the US contain the expression ‘of general application’ et similia. This is firstly because the US, still biased by its primus inter pares status,Footnote ¹⁰⁴ has largely not ratified HR treaties (but this is not true of the EU). Second, the expression itself does not frequently feature in such texts and related commentaries; in the few times that it does, it refers to legislation rather than case law.Footnote ¹⁰⁵

By any means, what China (or any other party) can argue is that TRIPS, as it stands, may be interpreted more or less narrowly and/or more or less teleologically, but their arguments shall be grounded in PIL (eg, negotiating stances, subsequent practice, and emerging customs) as opposed to mere domestic considerations. Pursuant to Article 27 of the VCLT, and as also reflected in Article 3 of the ILC Articles on the Responsibility of States for Internationally Wrongful Acts, a state cannot invoke its domestic legal order (including the configuration of its court system, its enforcing capacity, or the precedential value of its judgments per se) to justify incompliance with the international treaty obligations it entered into.Footnote ¹⁰⁶ Linguistically, too, under the well-established ‘autonomous meaning’ doctrine, states may object to certain interpretations being attached to specific IL provisions, but this is to be phrased in autonomous IL terms and cannot automatically and explicitly draw on domestic semantics to automatically infer the IL meaning of treaty provisions,Footnote ¹⁰⁷ even if state representatives most plausibly negotiated such provisions with precisely those domestic meanings in mind. For instance, pacta sunt servanda is replete with exceptions and qualifications in East Asian legal texts (within China, this holds true for both the ‘civil law’ Mainland and the ‘common law’ Hong Kong),Footnote ¹⁰⁸ but this cannot be immediately ‘transposed’ onto, eg, Chinese delegations’ interpretations of this (and cognate) expression as they should be incorporated or have already been incorporated within international treaties.

Concrete Benefits and Repercussions from Case Law Disclosure Internationally

One intriguing conundrum concerns the reasons why the ‘general applicability’ of domestic case law for transparency and predictability purposes, despite its self-evident magnitude, has seldom – if ever – been raised by international negotiators and scholars alike in the hundreds of trade and investment fora and arrangements operating worldwide.Footnote ¹⁰⁹ I cannot offer a satisfactory explanation for this. Instead, I can attempt to illustrate the essential reasons why they should consider this matter more often, especially when it comes to reciprocity of treatment in international trade and investment dealings.

The first benefit is obvious: they would be able to negotiate deals on a better-informed basis, lowering or invalidating any information asymmetry, and lawyers would be able to advise their clients more accurately and nuancedly on the applicable legal environment. This would be particularly crucial in China, where the legal market has traditionally been structured around domestic protectionism:Footnote ¹¹⁰ under the ‘no nationality, no bar’ tenet, foreign lawyers are largely barred from practising law, and especially from pleading in court, and are thus forced to nominally rely on local law firms while acting as ‘advisors’ to them. Providing clients with more insightful advice on what to expect from judicial practices throughout China will also offset certain ethical misalignments between seeking legal protection in China and relying on non-admitted foreign firms to that end. Also, information sharing seems indispensable for in-house counsels to strategise about which courts within a given jurisdiction are more likely to issue higher awards and/or display greater sensitivity to certain legal arguments.Footnote ¹¹¹ This, in turn, likely enhances regulatory coherence and legal certainty, two pillars of what is doctrinally defined as the ‘rule of law’ and valued by public and private entities alike. Indeed, ‘reliable policy frameworks … and predictable and stable revenues are key for private actors … Nearly as important as the national policy framework itself is that private investors perceive it as clear, stable and predictable’.Footnote ¹¹² International regimes are shaped by and should represent private interests to varying degrees, but with TRIPS it is definitely the case that the global IP regime has been defined by non-state actorsFootnote ¹¹³ and should tend to meet their expectations (eg, on business-environment predictability) rather than domestic public interests (eg, on secrecy, judicial autarchy, or protectionism). And while ‘it is not true that domestic contests over IPRs have disappeared, … the IPRs that eventually find their way into domestic laws are less the outcome of domestic contests and more of those unfolding at the global level’Footnote ¹¹⁴ between corporate conglomerates and (post-)Westphalian sovereigns.

Moreover, the greater the degree of information that states possess about judicial practices in the jurisdictions that have acceded to the same treaties to which they are a party, the more proficiently they may be able to direct their industrial policies and steer innovation – including in a joint or coordinated transnational fashion, more diffusely. Doing so according to plan would in turn make the design of such policies more balanced and possibly ‘fairer’, incentivising the development of technical and entrepreneurial talent. States may also become less wasteful of resources by avoiding frivolous litigation. Put differently, information sharing is also essential for convergence – only by sharing each other's case law can states seek to cooperate to converge on mutually favourable policies.

At the international level, states would be enabled to check whether domestic legislation and judiciaries across foreign jurisdictions have duly taken note of international decisions by, for example, WTO panels. Admittedly, these decisions are not strictly binding on domestic courts, but they could (and arguably should) still inform domestic judges’ orientation vis-à-vis globally prominent IP mattersFootnote ¹¹⁵ such as SEPs, whose leading cases have been included by China in major case law compilations, and which I opened my analysis with. It is true that, as seen above, the WTO Secretariat would not define what constitutes a case ‘of general application’ in a binding fashion, but WTO panels could do so and craft a de facto binding definition over time, so that the submission of domestic cases expressing courts’ stances on what may or may not not be ‘of general application’ becomes worthy of consideration by the state parties.

Government attachés could raise timely concerns if judgments looked suspicious, before they crystallise into authoritative case law. As bribery has long proved endemic in the Chinese court circuitFootnote ¹¹⁶ and remains a credible threat to its systemic integrity (especially away from the coastal cities), it seems important to prevent corruption-favoured judicial outcomes from falling off the radar. Approaching the problem from the reverse perspective, courts themselves may be motivated to publicise their own cases as a leverage to broaden their normative appeal and possibly set persuasive standards for other courts abroad (and especially regionally) to follow.Footnote ¹¹⁷ In fact, a race-to-the-top argument can be made that the more jurisdictions are aware of foreign case law, the more they cross-check each other both horizontally (among colleagues and peers, domestically and transnationally) and vertically (within each hierarchical court system and the court-government dialectic).Footnote ¹¹⁸ These transnational, dialogical, interpretational, and somehow ‘networked’ arrangements of persuasion and citation patterns are well documented among human rights and constitutional adjudicators,Footnote ¹¹⁹ but relatively less explored in the realm of IP.Footnote ¹²⁰

Relatedly, still in the PIL domain, there is a HR component (eg, on environmental, property, or health-related dignity rights) to IP transactions and enforcement whose balancing exercises are not too infrequently factored into judgments before constitutional and supranational courts.Footnote ¹²¹ These exercises are best performed when jurisdictions are made aware of each other's jurisprudence, and whenever WTO panels are faced with ‘trade & …’ questions featuring a HR component (ie, substantially always), cognizance of the case law of state parties could help them to extrapolate general principles and bestow due weight upon the stances and traditions of diverse legal systems. In this sense, refusing to make panels aware of such discussions reads like self-defeating a strategy. Even if one were to accept the reasoning that developing countries would benefit most from submitting their case law to the attention of foreign counterparts and international bodies (such as WTO panels), these countries might well be afforded certain degrees of leeway to disclosure requirementsFootnote ¹²² in order to lower the burden on their courts. Tellingly, Article 41.5 of TRIPS specifies that the Part of the Agreement dealing with the enforcement of IPRs

Phrased differently, it would be extremely favourable and worthwhile for developing countries to share their judgments with institutions and other governments globally, but where administrative strain is anticipated, they could be afforded ‘customised shades’ of disclosure obligations. The Council for TRIPS acknowledges that disclosure requirements are burdensome for developing countries, but notes that institutional accommodation (eg, in the form of translation services) has been provided.Footnote ¹²³ It would appear that the Council does not believe that developing countries should be given further accommodations, but this is far from settled and warrants analysis in its own right. As for China, it has never come across as a proper fit for the ‘developing country’ category, so that when joining the WTO, it was met with enhanced obligations (so-called ‘WTO-plus rules’) rather than deeper policy accommodation. None of those enhanced obligations, however, relate to case law disclosure. Negotiators appeared more concerned with securing China's willingness to operate exclusively under the laws it had published domestically and disclosed to its trade partners.Footnote ¹²⁴ Nonetheless, one could argue that while most of inner China is still somewhat rural (‘development’ is mostly concentrated along the coast) and thus disclosing most or all cases in any organic and systematic manner would be administratively and bureaucratically burdensome, the disclosure of core categories of apical IP cases from selected technology-intensive districts such as Běijīng, Shànghǎi, Shēnzhèn, Guǎngzhōu, Tiānjīn, Dàlián, or Hángzhōu would stand as a more reasonable expectation and commitment. This is already the case in practice – but not always,Footnote ¹²⁵ and not de iure.

Precedential Value in China: Special Case Law Compilations and their Wider Socio-Judicial and (Geo)Political Context

‘China has undergone an overhaul of its judicial system – including its IP law system – that is unprecedented in legal history’,Footnote ¹²⁶ and making certain cases to an extent precedential is a major contribution to this revolution. Even as recently as six years ago, scholars could confidently maintain the long-held assumption that ‘[i]n China, cases are not binding precedents[, even though] Chinese courts, with the SPC in the lead, have taken various opportunities to fill in the blanks … through their authority to interpret the laws’.Footnote ¹²⁷ After all, from domestic fora to those operating under PIL,

However, case guidance in China is rapidly shifting from being merely interpretative to truly precedential a legal device. To be sure, the assumption that Chinese cases bear no precedential significance did not hold true decades ago either. More than thirty years ago, scholars both in China and abroad were already noticing that binding force in Chinese case law was moving towards a mixed system.Footnote ¹²⁹ A couple of decades ago, doctoral theses were already classifying it as a ‘mixed system’.Footnote ¹³⁰ Granted, China has probably not progressed towards mixed status as steadily and uninterruptedly as one might have expected at the time of its entry into the WTO system, but the transition has occurred and has been remarkably catalysed in the last five years or so. If one has to draw a correlation, this roughly corresponds to the second (and third) Xi Jinping era, ie, to the season after President Xi amended the Constitution to grant himself power ad vitam.Footnote ¹³¹

While Chinese judges are still prohibited from citing cases as the legal basis for their judgments, including from the SPC itself,Footnote ¹³² they are, nevertheless, allowed to cite them more casually as a reference. However, Guiding Cases (GCs) represent an official exemption from this rule. Moreover, judges may refrain from directly citing SPC cases while citing SPC JIs, which are anyway based, covertly or overtly, on the most authoritative, persuasive, and successful case law developed in China on the relevant subject (mostly owing to the SPC itself). This warrants an examination of the purpose of China's choreography of banning GCs as a legal basis for judgments. Chinese scholars themselves have acknowledged that searching Chinese laws for solutions to practical legal problems is a recurring source of frustration: substantive laws in China (not merely the Constitution) are often programmatic and principled in nature and therefore lack precision, accuracy, and determination in exchange for flexibility, acceptability, and interpretative room.Footnote ¹³³ One implication is that legislative lacunae help to explain the gap-filling function played by court cases – unofficially at first, more formally today. Interestingly, one explanation that has been offered for this phenomenon is that most Chinese laws have been transplanted from Western jurisdictions (and only superficially adapted to China), including common law jurisdictions where statutes are indeed declaratory and principle-enouncing in nature, as they are meant to play a fairly limited role in shaping concrete judicial outcomes.Footnote ¹³⁴

Another interesting point is that China's judgment-related substantive obligations under TRIPS are largely complied with, and progress is evident,Footnote ¹³⁵ leaving transparency as the only (procedural) obligation related to judgments that China openly refuses to meet under TRIPS. Initially, this also related to laws,Footnote ¹³⁶ but now it mostly refers to cases. And yet, even this apparently straightforward record needs to be complexified, as China's compliance landscape is actually murkier. For example, there may be substantive compliance with enforcement obligations, but still patchy coverage through large-scale crackdowns that have proven to be unfair and arbitrary.Footnote ¹³⁷ If cases were published, this would increase our awareness of where enforcement action is being taken, pursuant to what timeline, and against whom. This is because court case reports are harder to manipulate than government agency aggregate statistics on enforcement. More importantly, this added value would stem from the publication of all cases, rather than just those ‘of general application’, whose issuance is arguably restricted to a handful of courts in a few major coastal cities. Exclusion from enforcement, or overexposure thereto, is a common IP-related complaint in China,Footnote ¹³⁸ so the government would be doing a great service by promoting transparency in the distribution of enforcement – which is unlikely to happen, as the government must have good reasons for keeping IP enforcement in its current chaotic (or selectively targeted?) state.

Where can Chinese cases even be found? Where are they published and what databases collect them? I will not delve too deep into this, but some preliminary notes are due.Footnote ¹³⁹ China Judgments Online (裁判文书网 cáipàn wénshū wǎng)Footnote ¹⁴⁰ was established in 2014, and pursuant to the ‘Provisions on the Publication of Judgments on the Internet by the People's Courts’ in July 2016Footnote ¹⁴¹ it publishes a remarkable share (but by no means all) of Chinese judgments. Other key sourcesFootnote ¹⁴² include Peking University's ChinaLawInfo (北大法宝 běidà fǎbǎo),Footnote ¹⁴³ as well as Faxin (法信),Footnote ¹⁴⁴ Itslaw (无讼),Footnote ¹⁴⁵ Stanford Law School's China Guiding Cases Project (no longer maintained),Footnote ¹⁴⁶ the National People's Congress's (NPC) National Database of Laws and Regulations (relevant here as it also covers JIs),Footnote ¹⁴⁷ and the Supreme People's Procuratorate (SPP) internal database. Additionally, there are specialised databases such as the subscription-based IPhouseFootnote ¹⁴⁸ and CIELAFootnote ¹⁴⁹ in the domain of IP. Whatever the database, however, one rule remains: not all cases are uploaded (not even when it is so declared or intended), so just a tiny proportion of cases can be found, varying from field to field. While it is true that IP cases are generally uploaded at a higher rate than others (such as security, pollution, or corruption cases), databases will never return a complete picture.Footnote ¹⁵⁰ Cases may even be published and later removed, temporarily classified and embargoed for a number of years, or redacted or censored.Footnote ¹⁵¹ While this is common in most jurisdictions globally, it is arguably more impactful in China, both because of the magnitude of governmental meddling and the vastity of the case-docket; authoritarian institutionalism also plays a role.Footnote ¹⁵² Judicial secrecy may even be lobbied for by Chinese state-owned corporations that are concerned that Western investors who become over-acquainted with the Chinese regulatory environment may operate too boldly in an economy that is brutally neoliberal but still also centrally planned in some significant way. After all,

The SPC has designated the Běijīng IP court (the Chinese closest-to-power specialised IP court) as an IP law research base to pilot what it calls a ‘system of using prior judgments to guide trial work’ (先例判决指导审判工作的制度 xiān lì pànjué zhīdào shěnpàn gōngzuò de zhìdù).Footnote ¹⁵⁴ Professor Susan Finder, a leading scholar in PRC Law from Peking University's School of Transnational Law in Shēnzhèn, has suggested that this new system was piloted from the IP field because of ‘the relatively non-political and technical nature of IP issues, as they are not seen as affecting social stability’.Footnote ¹⁵⁵ However, I respectfully disagree: there are numerous high-level instances where even President Xi himself has remarked on the strategic importance of IP for societal development and economic progress,Footnote ¹⁵⁶ including in multilateral arenas.Footnote ¹⁵⁷ Therefore, it seems more plausible to conclude that the prior-judgment scheme was piloted from IP judgments exactly due to their acquired vitality within China's strategic priorities. In any case, it is precisely the SPC (and, in this field, its specialised IP chamber) that decides most of the key cases, and it is from the SPC that special compilations of Chinese cases (and guiding opinions on them) emanate.Footnote ¹⁵⁸ For the sake of the present analysis, I will more succinctly list some of the main collections of Chinese court cases, which one could argue are rapidly crystallising into a body of case law ‘of general application’.

The most important ones, already mentioned above, are GCs: judges may or even shall refer to them in their reasoning, but – as anticipated earlier – must not cite them as the basis of their judgments.Footnote ¹⁵⁹ It is worth mentioning that SPC Annual Reports are available on the ten ‘big’ IP cases (大知识产权案件 dǎ zhīshì chǎnquán ànjiàn),Footnote ¹⁶⁰ the SPC ‘exemplary cases’ (典型案例 diǎnxíng ànlì), the SPC ‘model cases’,Footnote ¹⁶¹ the Cases published in the monthly SPC Gazette (最高人民法院公报 zuìgāo rénmín fǎyuàn gōngbào), the Selection of People's Court Cases (人民法院案例选 rénmín fǎyuàn ànlì xuǎn), the China Case Trial Highlights (中国审判案例要览 zhōngguó shěnpàn ànlì yào lǎn), the China Court Annual Cases (中国法院年度案例 zhōngguó fǎyuàn niándù ànlì), and the People's Justice Cases (人民司法案例 rénmín sīfǎ ànlì). Of particular importance (though arguably of lower status compared to the GCs) are the fifty yearly ‘Typical Cases’ (TCs; 典型案件/典型案例 diǎnxíng ànjiàn/diǎnxíng ànlì), which have been systematically listed since 2014 but whose practice dates back to the 1980s.Footnote ¹⁶² The compilation of the TCs follows two routes: one is top-down, stemming from research conducted by the SPC while drafting the aforementioned JIs; the other is bottom-up, allowing the provincial-level Higher (or High) People's Courts to select their most influential cases and submit them to the SPC for editorial review and possible publication. Through several levels of screening, some of these publications are policy-oriented while others rest on technical merits.Footnote ¹⁶³ Of interest here is that despite the selection process, the approval of the cases remains uncodified and informal,Footnote ¹⁶⁴ to the extent that claiming them to be ‘of general application’ might prove problematic for foreign jurisdictions. SPC Major Cases (MCs; 十大案件 shí dà ànjiàn) are also significant, although some terminological confusion may arise here, as there appears to be no official distinction between these and the above-mentioned TCs for the purposes of case search under the 2020 Guiding Opinion.Footnote ¹⁶⁵ Such MCs seem to include both major IP and major commercial holdings on an annual basis, though when it comes to complex IP transactions, it is advisable to refer directly to the Typical Technology Cases (TTCs), whose selection criteria continue to fluctuate between technical salience and political momentum. In 2020, for instance, the SPC issued its list of ten IP TTCs, selected on the basis of ‘their effective protection of national interests, judicial sovereignty, and the legal interests of enterprises’.Footnote ¹⁶⁶

Again, this list was not intended to offer an exhaustive and articulated analysis of the lists of special cases under PRC law, firstly because Professor Finder has already accomplished this and continues to refine and share her research, and secondly because the lists themselves are unstable, constantly shifting in both denomination and configuration, so that overlaps and inaccuracies should surprise no one. Rather, my report serves to highlight three essential points. First, China is visibly endeavouring to sort its leading cases into an extremely complex network of categories, situating itself within the broader hybridisation trends of civil law systems and aiming to ensure greater consistency over time and across courts. Second, there are indeed lists of cases that foreign jurisdictions should be aware of and that hold special influence on Chinese courts, both generally and in IP-intensive disputes. In my view, these collections are at least the GCs and TCs for general-purpose judgments, and the TTCs for IP-intensive disputes more specifically, a fortiori if one is interested in the regulatory landscape for complex technological cross-border transactions involving IPRs. Third, there is merit on both sides: from a formal standpoint, these SPC-selected cases are not (yet) ‘of general application’, but they are definitely of general applicability, and China should disclose them on bona fides grounds, as they are central enough to the system to situate themselves within the scope of what seems to be the teleology underpinning the TRIPS draft: to address those cases that, while not necessarily and strictly binding on subsequent cases, will most plausibly inform their proceedings and outcomes significantly.

A deeper understanding of PRC law is essential to provide context, focusing not so much on cases per se but on the intricate ‘legal politics’ and procedural choreographies entrusting them with legal authority within the articulated Chinese polity. One noteworthy process is the incorporation of relevant cases into broader document collections and guidelines, mostly issued by the SPC and its affiliated research centres, whose main purpose is indeed to provide guidance and direction to lower courts. Among these resources are publications like the China Trial Guide (审判指导丛书 shěnpàn shí dào cóngshŭ),Footnote ¹⁶⁷ issued by the SPC's criminal divisions. Also of importance are the Case Summaries (案例要旨 ànlǐ yào zhī), the SPP Case Guidance Provisions,Footnote ¹⁶⁸ the Collection of the Supreme People's Court's Judicial Rules (最高人民法院司法观点集成 zuìgāo rénmín fǎyuàn sīfǎ guāndiǎn jíchéng), and several collections of digests. Other documents referencing case law are the Responses (答复 dàfú) and Answers (解答 jiědá) supplied by different SPC divisions upon requests from the lower courts, as well as the Research Opinions (研究意见 yánjiū yìjiàn) delivered by the SPC's own Research Office. Depending on the field, Responses, Answers, and Opinions may incorporate include a commentary section on the socio-judicial significance (典型意义 diǎnxíng yìyì) of the cases referred. Most of these also contain Important Points (要点 yàodiǎn) extrapolated from judgments, but not necessarily the full texts of the latter; nevertheless, they may still be cited by lower-court judges who avail themselves of such Points as a departure. This is because, unlike the general public, they have (or can be granted) access to the full judgments through internal databases on request. At this stage, it can be seen that if Chinese judges refer to these Important Points, but the cases containing them can only be searched through internal databases because they are not published, then such cases will not be openly citable either, so they cannot be considered ‘of general application’. This is all the more so as the internal databases date back to at least 2005, predating public databases, and represent an exclusive auxilium for SPC judges, despite the fact that Mainland China is a fairly extensive (if somewhat centralised) jurisdiction where local courts display uneven degrees of familiarity with each other and the superiors’ expectations. Adjudication Guidelines are also frequently released, but special salience for IP lawyers is to be found in the Provisions on Act Preservation Measures in Intellectual Property Disputes.

A quantitative assessment of the scope and frequency of these numerous collections, both between collections and on a comparative annual basis, would provide extremely valuable insights into China's judicial politics, but this is an undertaking for another paper. It is China's belief that all ‘[t]hese cases and [the] adjudication guidelines extracted from these cases serve to timely summarize the trial experiences, strengthen publicity of the rule of law and provide references for judicial practices and legal education’,Footnote ¹⁶⁹ and quantitative perusal – via inter alia computational linguistics tools and the ‘experimental jurisprudence’Footnote ¹⁷⁰ movement – would plausibly contribute to confirming or disproving such claims. What seems safe to posit is that China's efforts at ‘systematisation’ are aimed at a wider audience than just domestic courts, and may even be premised on educational purposes as well, so much so that some compilations are published exclusively (or first) on the all-comprehensive WeChat app (plus LexisNexis and other platforms), reinforcing the conclusion that the authoritativeness and officiality of contents in China emanates from the issuing bodies rather than from the means of publication and dissemination. It is fair to assume that at least when it comes to these major collections and the guidelines incorporating them, case publication is timely and exhaustive.

More focus is warranted on how these cases are reviewed, edited, and selected; on the officials who personally authorise their inclusion on special lists; as well as on the potentially misaligned attitudes between younger and more senior members of the judiciary. However, this legal-ethnographic work falls outside the ambition of my present article. Rather, I will expand on how judges might avail themselves of the guidance – which is both a constraint on them and an opportunity to pursue and achieve coherence (notoriously valued in China as ‘harmony’). Again, empirical work could draw inferences from citation patterns, differences in use compared to JIs, perceptions of their binding nature, and so forth, but one observation already worth making is that citing a case (eg, in passing, that is, in non-dispositive parts of the judgment) cannot be taken as a testimony of judicial support for the findings of such case (nor as conformity, for that matter), although it may outline nominal alignment (or institutionalised deference, otherwise called ‘fear of repercussions’). At the opposite end are hidden citation patterns, where cases are referenced but the reference cannot be overly exhibited.Footnote ¹⁷¹ For instance, the citation practices of lower courts may exhibit considerable ambiguity:Footnote ¹⁷² their judges cannot feel as bold as those of the SPC in dismissing the civil law nature of China, and may therefore refrain from going so far as to cite cases, but at the same time they may feel obliged to take into account how higher courts have handled similar cases, so as not to diverge from their established trends. Hence, if higher courts begin to cite precedents, lower-court judges might be motivated to do the same – though possibly not by selecting precedent-setting cases themselves, but rather by relying on those that have already been highlighted by higher courts (and thus ‘politically’ sanctioned by Party officials). Unmistakably, there are numerous other factors to consider, including territorial alignment, conformism, and conservatism, or the like-mindedness of judges by field, but also broader concerns such as for the geopolitical context and market indexes. In truth, it also depends on how counsels act, although it is admittedly difficult to demonstrate a correlation between the extent to which counsels rely on precedents in their pleadings or written memorials and judges’ inclination to construe their decisions on the acceptance or rejection of such cases. In any event, counsels may find it effective to cite authoritative precedents, on the assumption that ‘a lower court is likely to be persuaded that the superior court will rule similarly if the case is appealed’.Footnote ¹⁷³ This is because:

The practice of hidden citations finds its exemplification par excellence in foreign cases, sometimes including those issued in the two Special Administrative Regions (SARs) of Macao and Hong Kong – some of which wield significant influence in reaching normative harmonisation in the Greater Bay Area. It is unviable to rely on case collections to establish a spotless hierarchy of different types of cases; the GCs would safely top the list, but beyond them, no defined priority is recognised in official documents. And yet, judges have already informally suggested a hierarchy based not so much on the typology of the cases per se, but on the courts issuing them (or endorsing their importance). In this informal list, foreign judgments matter the least,Footnote ¹⁷⁵ although this abstraction is not always reflected in practice – which only underlines the relevance of distinguishing between overt and covert citation patterns. When lower courts publish their own case collections, they do not necessarily resemble the orientation of the SPC, and citations taken in isolation may not return the most compelling picture. To exemplify, the 2.1% citation rate of the Běijīng IP Court may indeed seem low, but what matters most is that Chinese specialist IP judges consider its decisions to be standard practice, ie, that they have come to regard them as ‘normative’, despite the ‘civil law’ characterisation of the PRC jurisdiction. In addition, many other minor cases (ie, those not reported in collections), where ‘subordinate’ judges do not display the need or the will to directly cite Běijīng judges, are still shaped by hidden citations.Footnote ¹⁷⁶ What is more, the Běijīng IP Court Guiding Case Work Implementation Methods were drafted for ‘encouraging advocates to submit relevant precedents, considering precedents as de facto binding, and permitting judges to cite precedents in their judgments’.Footnote ¹⁷⁷

Whatever one's position on whether the ‘specially listed’ Chinese case law should be deemed ‘of general application’, it must be admitted that China's systematisation of its case law is not an accidental deviation from civil law practices, but rather the in-progress outcome of a coherent strategy pursued as part of a grand design: to harmonise judicial practice and thereby promote the predictability of PRC law, especially in the field of IP.Footnote ¹⁷⁸ Harmonisation and predictability are a fortiori essential when foreign entities are involved, which is why the Chinese resistance to disclosure at the WTO is of onerous interpretation. To validate that China's case law systematisation devises a long-term strategy rather than temporary political opportunism on the part of Chinese leaders,Footnote ¹⁷⁹ I am going to mention some of the political directives to that effect, starting with the Central Committee of the Communist Party Decision concerning Several Major Issues in Comprehensively Advancing Governance According to Law (4^th Plenum Decision). Also worth mentioning (in chronological order) are the Opinion of the SPC on Deepening Reform of the People's Courts Comprehensively (4^th Five-year Court Reform Plan), the 2010 Provisions of the SPC on Guiding Cases Works,Footnote ¹⁸⁰ the 2019 Implementing Measures of the SPC for Establishing the Mechanism for Resolving Law Application Differences,Footnote ¹⁸¹ the 2020 Guiding Opinion Concerning Strengthening the Search for Similar Cases to Unify the Application of Law (for Trial Implementation),Footnote ¹⁸² the 2020 Opinions of the SPC on Perfecting the Working Mechanism of Unifying Standards for Application of Laws,Footnote ¹⁸³ the 2021 Guiding Opinions on Perfecting the Working Mechanism of the Professional Judges’ Meeting of People's Courts,Footnote ¹⁸⁴ as well as the 2021 SPC Implementing Measures for the Unified Application of Laws.Footnote ¹⁸⁵ They all seek to promote the principle of ‘same judgment for all similar cases’ (类案同判 léi àn tōngpán).Footnote ¹⁸⁶ In addition, private initiatives by judges and scholars,Footnote ¹⁸⁷ the support from Party leadership,Footnote ¹⁸⁸ and the case-guidance mechanism (案例指导机制 ànlì zhǐdǎo jīzhì) – which, while to be distinguished from a systematic collection of precedential value, resembles it quite closely – can also be listed for the purpose of standardising judicial outcomes across the entire Mainland.

Apart from GCs selected by the SPC and other specially listed cases as outlined, ‘[t]he non-guiding cases are not directly binding, may not be cited in court judgments, and do not have precedential value. They can be used as a source of reference (参考 cān kǎo)’.Footnote ¹⁸⁹ Professor Finder writes of ‘soft precedents’, and indeed the Presiding Judge of the Dōngguǎn Municipality No 2 People's Court in Guǎngdōng Province emphasised that

Interestingly, the above implies that even if one were to regard GCs as ‘hard precedents’ (which would be somewhat inaccurate for the time being), other ‘softer’ judgments would be needed in practice to supplement the SPC's guidance with more province-adjusted, context-sensitive flavours. This may be an expression of genuine concern, but it could also reflect a certain degree of intolerance or even hostility towards the rigidly hierarchical impositions of higher courts rather than laws. This is because, paradoxically, local courts might have enjoyed more room for manoeuvre before the case-referencing system was ‘institutionalised’.

Notably, these formalising trends are even more remarkable and impressive in China – where judges used to issue fairly dry decisions – than virtually anywhere else in the civil law constellation. This reflects inter alia the outcome of ‘legal education geopolitics’ in the field of law, where many Chinese judges (especially the younger ones) have been partly or wholly trained overseas in common law schools and bars, and have unconsciously imbibed a precedence-upholding mindset. All across US, Canadian, Australian, Hong Kong, and UK law schools, aspiring Chinese lawyers (namely Bachelor of Laws, Master of Laws, and Juris Doctor students) are trained to search, compare, and retrieve cases using commercial platforms such as Westlaw, Bloomberg Law, or LexisNexis. When these students return to Mainland China, they reiterate this behaviour, or at least retain the same mindset, which imports the gradual normalisation of these routine lawyering operations into the legal practice of the Chinese civil law system.Footnote ¹⁹¹ Plausibly, educational and judicial training objectives are also being pursued in a broader sense, ie, lists of GCs and TCs are being compiled to ensure not only that lower court judgments are in line with to the judicial holdings of the SPC and its ‘high politics’, but also that the drafting and reasoning of such judgments approximate a common minimal standard of quality (and not just policy) across the Mainland. And even more broadly, the underlying pedagogical intention seems to be that of educating the whole nation and society to conform to expected standards of behaviour: the more consistent the case law, the clearer the guidance. The fact that ample room for discretion is supposedly left to politicised judges may seem contradictory in an autocratic system, where judges are disciplined not to exercise too much freedom in ius dicere.Footnote ¹⁹² Such an apparent contradiction can be explained by considering that the Party only intervenes directly in very apical judgments (and judiciaries), whereas, from an overarching viewpoint, the independence of courts has been remarkably strengthened in recent years, along with its overall qualitative overhaul.Footnote ¹⁹³

On the contrary, an alternative critical narrative is that the Party is strengthening the judiciary in an attempt to more systematically exercise its control over ‘lower’ cases by reference to ‘higher’ cases that are more directly influenced by political directives.Footnote ¹⁹⁴ One should therefore be wary of the overly triumphalist and nationalistic tone that attribute the ‘merit’ of China's case law systematisation to the influence of US law. While the American contribution cannot be dismissed, it should not be credited with unrealistic weight towards this China's pivot, either, not even when it comes to the most technical IP-centred proceedings. US think tanks such as the Brookings Institution posit that

This is a bold overstatement. While US law has set the bar on certain matters (and legal transplants from other Western jurisdictions have also played a role in these advances), the drive is primarily endogenous and motivated by domestic policies framed in terms of security, development, stabilisation, investment-friendliness, win-win cooperation, and social cohesion. This is not to dismiss that the US has aspired to play a more assertive role, and has confidently kept trying to do so through ‘legal education diplomacy’.Footnote ¹⁹⁶ The soft power of US law schools, where generations of Chinese lawyers have studied before returning to Mainland China to become counsels and judges in Chinese courts, is now at risk, yet it has never fully faded.

At this point, assuming that Western requests for disclosure before the WTO should be met, at least as far as key case law lists of Chinese judgments are concerned, one might legitimately doubt whether it is genuinely beneficial for other jurisdictions to be made aware of only a restricted number of cases. In fact, these are selected by Chinese judges (and shadow political advisors) to feature in such collections,Footnote ¹⁹⁷ a politicised selection process that may paint a misleadingly distorted picture of the actual judicial framework operating in China. In trying to read through the lines of the SPC's judicial pragmatism,Footnote ¹⁹⁸ it must be acknowledged that the line between authoritativeness and authoritarianism in establishing judicial precedents is somewhat thin,Footnote ¹⁹⁹ with the SPC being endowed with double-faced authority – derived as much from its legal prestige as from the support of the Party leadership.Footnote ²⁰⁰ It may be that judges are attempting to cement their expertise-grounded independence from party politics through legal authority, but it may equally be that political grip has again (and in a more systematic manner) found its way into the apical Chinese courts precisely through guiding cases. This has a cascading effect on the entire legal system, which can somehow impose the Party's political direction on judgments at all levels, fostering uniformity and, ultimately, a perilous conformism. Moreover, there is inherent bias in the quasi-scholarly packaging built around cases when they are ‘edited’ for publication. Case collections are supposed not only to organise and (re)publish judgments, but also to systematise them conceptually and purposefully, to level up their divergences, and to make sure that they read as coherently as possible through laudatory commentaries that restate the underlying principles they convey. Judges’ seniority, Party affiliation, and personal connections, as well as the length of their appointments and the conditions (written and unspoken) attached to the renewal of their contracts and their ‘political visibility’, also play a role. Having one of their cases selected and endorsed as a GC confers prestigious recognition on both the judges and counsels involved, therefore the politics of selection is rarely confined to the mere cases; the question of who decided and issued them is just as much a criterion for inclusion.

To conclude this section, it is safe to emphasise that in China, cases (particularly as incorporated in JIs) that may serve as guidance for judiciaries throughout the country are seriously needed – and increasingly integral to the system – out of a primarily endogenous traction, precisely as a ‘counterbalance’ to the PRC's legislative and enforcement deficiencies in relation to China's stature as both a jurisdiction and economic powerhouse, and the socio-legal demands arising therefrom:

The SPC itself has endorsed the need to ‘fill this gap’ in paragraph 6 of its Opinions on Putting a Judicial Responsibility System in Place and Improving Mechanisms for Trial Oversight and Management (Provisional),Footnote ²⁰² and it is actually the case guidance system that drives judicial interpretations, not the other way round.Footnote ²⁰³

Quasi-Precedential Case Law and Other Hybridising Features of Legal Systems Worldwide

The casus before the WTO between the US/EU and China strikes at the heart of the conundrum of the precedential value of case law, but this particular collision between such diverse jurisdictions may ultimately be reconnected with divergent understandings of the rule of law between common and civil law systems.Footnote ²⁰⁴ Nonetheless, the commonly held view today is that Chinese cases are only binding on the disputing parties, which has been mentioned, inter alia, to explain why Chinese courts are not as reluctant to cite international HR treaties (such as the Convention on the Rights of the Child) as might be expected:Footnote ²⁰⁵ if the outcome is politically unsatisfactory or overly demanding, other courts can subsequently backtrack and rule otherwise. In fact, ‘case law continues to be controversial in China, as it has for over ten years, with some suggesting that judges are making law (法官造法 fǎguān zàofǎ) or are seeking to import a Western practice to China’,Footnote ²⁰⁶ something that has occurred for the longest time not just in China but throughout East Asia – as will be discussed below.

Nevertheless, the time has come to challenge the oversimplified distinction between common law's ‘precedentialism’ and civil law's ‘mere application of the law’, to the point of questioning whether the comparison with common law (or, worse still, ‘Western’ jurisdictions) is even a meaningful exercise. I have already discussed the trend towards hybridisation of civil law systems worldwide, but common law systems, too, are transforming into more hybrid regimes. Two immediate examples of infra-jurisdictional hybridised regimes are Scotland as well as the Canadian province of Québec,Footnote ²⁰⁷ where different areas of law (and related court proceedings) are governed by either common law or civil law traditions. In addition, there are other systems that are hybridising entirely, meaning that even full common law regimes are gradually incorporating doctrines and procedures from their civil law counterparts.

Post-colonial East and Southeast Asian jurisdictions have long represented thriving laboratories of legal transformation at the judicial level. Japan is usually labelled a civil law system, but precedents are influential.Footnote ²⁰⁸ In South Korea, which originally resembled a common law system,Footnote ²⁰⁹ Japanese civil law was forcibly imported, but customary traditions began to tilt the system towards hybridisation, amplifying the precedential weight of decisions from the constitutional level downstream.Footnote ²¹⁰ Indeed, Japanese legal theories have undergone a spiralling Americanisation, with constitutionalism first, followed by the influence of case law.Footnote ²¹¹ Within the same Pacific macroregion, Indonesia adopts a mixed system,Footnote ²¹² as do Thailand and the Philippines.Footnote ²¹³ Laos and Vietnam are following an analogous path, empowering their courts to develop a system of precedents, under certain conditions as formally envisaged in the law.Footnote ²¹⁴ Similar predicaments can be attested in other regions as well, not least in Latin America,Footnote ²¹⁵ where advances in information technology, telecommunications, and artificial intelligence make it much easier for judges to practice judicial analytics to find and cite precedents.Footnote ²¹⁶ The blending of inquisitorial and adversarial procedures is part of the same grand metamorphosis; even in China, judges may welcome parties’ submissions referring to precedents, while conducting their own research into precedents to cite.Footnote ²¹⁷ Evidently, transnational legal moves and exchanges are major drivers of hybridisation. For example, with respect to the recognition and enforcement of foreign awards, it would be unbalanced for common law systems to incorporate foreign cases that might acquire precedential value through ‘nationalisation’, while civil law systems import foreign cases that end up being exclusively binding on the parties. As a result, higher expectations of greater reciprocity could lead to a gradual shift towards hybridised traditions.

One could be tempted to conjecture that PRC law constitutes a special case within civil law systems, on the prima facie hypothesis that Chinese ‘socialist’ law, due to its often remarked ‘Chinese characteristics’, should not be misused to generalise about trends in civil law systems. And yet, in this specific matter, there is nothing particularly original in what is happening in China – except, perhaps, for the complexity of the jurisdiction at stake, as well as for the magnitude of the geoeconomic repercussions of its judicial holdings. The trends developed in France and elsewhere have already been mentioned above, and there are indeed innumerable examples of similar developments outside China – starting from Continental Europe. The factual law-making activity of the German Federal Court of Justice and the Polish Supreme Court has recently been acknowledged.Footnote ²¹⁸ In Spain, the Supreme Court is binding on lower courts after expressing itself twice, but in many other civil law jurisdictions even a single pronouncement may suffice. In Italy, the Corte Suprema di Cassazione is de facto binding on the lower courts and often even on the executive and regulatory authorities,Footnote ²¹⁹ as confirmed in a contribution uploaded to its institutional website.Footnote ²²⁰ Curiously enough, even if a regional trade and/or investment agreement were negotiated exclusively between civil law jurisdictions, no consensus could straightforwardly be reached on the issue of what last-instance court cases are binding on lower-in-rank judiciaries – or become ‘of general application’ in the TRIPS lexicon. While identifying specific cases and procedures that count as precedential is a daunting exercise, one could conclude that all jurisdictions are slowly converging on one main tenet: precedents are to be followed and adhered to unless a strong argument can be made for overruling them. This is how cases are overruled in common law and civil law systems alike. In China, for instance, ‘judges will consider what the line of prior cases are, whether the reasoning in the prior cases is applicable to the case before them, or whether there are factual, legal or policy reasons to take another approach’.Footnote ²²¹

There is no doubt that civil law jurisdictions are hybridising this fast because having courts indirectly contribute to lawmaking is a relatively viable solution to the inadequacy of legislative processes to keep pace with the needs of fast-moving, globalised societies. Just like most other civil law jurisdictions, China is attempting to respond to the solicitations brought about by an increasingly oppressive time-shrinkingFootnote ²²² that seems to render any rule obsolete as soon as it is issued (or, in some extreme events, even before it is enacted). These limitations are being addressed under mounting competition and regulatory anxiety, especially in corporate-intensive fields such as financial law and tort law, where leading common law jurisdictions seem to be more effective at updating their frameworks whenever they so decide. IP, too, is a time-sensitive field of law, where a few days can mean the difference between winning or losing a new market, and courts are increasingly being incentivised by the legislature to share the responsibility for responding to these challenges in a timely, ‘competitive’ manner.

A Preliminary Proposed Solution and Further Hints for a Way Forward

No one disputes the widespread evidence that the WTO system, and TRIPS with it, is facing what may be the most profound challenge to its political sustainability since its foundation. Whatever the way the WTO will be reformed (if there is any way at all), enhancing and levelling-up transparency will be a contentious dossier for all members, especially for the US and China.Footnote ²²³

The inconvenient truth is that China will never disclose as many cases as the US and the EU have demanded. Nonetheless, if the regulatory needs subsumed under their request are further delineated, if trust is regained on both sides, and if the burden itself is narrowed, there is a possibility that China will comply with the spirit of TRIPS and disclose at least the text of most of the key judgments strictly related to IP dossiers. This would warrant closer inspection of the criteria for inclusion in such a pool of judgments to be disclosed. These could number in the dozens, but the key factors to consider are whether such cases are: 1) cited by higher or lower courts; 2) included and enumerated in special collections; 3) borrowed from, transplanted from, or referred to by relevant courts in other jurisdictions; 4) not subject to appeal; 5) issued by specialised (IP) courts, which in China correspond to the three nationwide IP courts in addition to the dedicated SPC Chamber; and/or 6) incorporated (explicitly or implicitly, along a sliding scale of political endorsement weight) into legislative and executive acts – in the case of China, of course, the allusion is to the SPC's JIs, provided that the (legal) relationship between inclusion in case collections and incorporation into meta-legislative acts such as the JIs is further enucleated. Corollary variables to be assessed might be, for instance: 7) whether they are widely featured in official publications like the Gazette as well as in media and policy reports, a fortiori if efforts towards strengthened outreach are put in place; 8) whether the amount of the award is noteworthy; 9) whether the case discusses new technologies or new types of digital and scientific evidence; and/or 10) the extent to which they can be considered a ‘first’ or a major procedural turning point. Criteria 9 and 10 could be merged into ‘novelty’, which is indeed an orientation that the WTO Secretariat appears to endorse.Footnote ²²⁴ A couple more of very sophisticated criteria would be: 11) the level of scholarly support and references by lawyers – particularly relevant here because the research divisions of the SPC and other Chinese courts employ large numbers of post-doctoral researchers and junior faculty to filter and refine case collections and subsequent publications, on the assumption that judges have neither the time nor, as for the most senior judges who were recruited decades ago, the expertise or motivation to do so – and/or 12) whether publicists could claim that they contain findings that crystallise into general principles of law in the sense of Article 38(1)(c) of the Statute of the International Court of Justice.Footnote ²²⁵ This is important because WTO panels turn to laws of general application across party members to understand municipal law, but the actual meaning and application of these laws may be clarified by domestic judgments, so that PIL-phrased ‘general principles’ could just as well be extrapolated from consistent and authoritative ‘lineages’ of domestic judgments.Footnote ²²⁶

As China is moving closer to common law precedent discourses (as do most civil law systems around the world), there is merit to the US/EU request. China is expected to pivot fairly steadily towards a hybridised system in which judges cite precedents both directly and indirectly,Footnote ²²⁷ and make extensive use of them not only in reasoning about the law, but increasingly in drafting it. Consequently, the WTO transparency requirements will become even more salient, and it would certainly be mala fide to ignore them or to respond to them in a formalistic manner. Nevertheless, overly broad and quantitatively phrased petitions do not seem to be helpful, partly because only certain collections of cases truly matter. In my view, in the interests of quality and time, if none or only a minority of the above twelve points are satisfactorily matched, China should be exempted from further compliance demands. Importantly, politically sensitive cases will not be made public anyway, and on the presumption of good faith and ‘international comity’ they should be exempted therefrom under the aegis of national security (ordre public).

In summary, as far as China is concerned, and after evaluating Chinese case law in its own terms and context, I would advise that at least GCs and TCs should be considered ‘of general application’ (especially if reported in or substantiated by SPC JIs), along with a scant number of other cases in light of the criteria listed above, depending on the field and all relevant geopolitical and geoeconomic circumstances. This exhausts the inspection into the scope of case law to be disclosed.

Returning to the WTO procedures that have prompted this discussion, a few concluding remarks are in order. The first concerns the risk that the more transparent a jurisdiction is in releasing case law, the more material the other parties can gather to lodge cases against it in the WTO. To defy this paradox, a strict obligation of disclosure should be maintained at least for disputes whose dismissal would trigger a reversal of the burden of proof after a very light prima facie case. In other words, if a state lodges a complaint and the other state does not disclose relevant case law, the burden of proof should shift to the responding state. This is to avoid that non-disclosure becomes a shield against complaints, and, in particular, that disclosure becomes a litigation risk factor. Second, further reflection is needed on the most appropriate channels for submitting and negotiating disclosure requests. The current bureaucratic protocol does not seem to best serve the interests of diplomatic engagement. My third and final observation concerns the feasibility and convenience of renegotiating and reformulating the TRIPS clause to take account of the above discussions and to accommodate global change, against the backdrop of a decidedly outdated WTO framework that warrants reform well beyond this specific issue. Sometimes, though, ambiguity may be deliberate in order to make all parties ‘limitedly unhappy’ and allow for a de minimis consensus to emerge. Indeed, this may well justify the current landscape.