Beyond Trade War: Reevaluating Intellectual Property Bilateralism in the US–China Context

Abstract

The Economic and Trade Agreement between the USA and the People’s Republic of China (hereinafter the ‘Phase One Agreement’) concluded in January 2020 leaves many important questions unanswered. This article goes beyond narrow textualist approaches and seeks to conceptualize the current trade tension by providing an alternative narrative with a focus on China’s post–Trade War commitments to higher intellectual property rights standards. In particular, it focuses on the bilateral interaction between the USA and China during and shortly after the Trade War and how the interaction impacts China’s legal changes from a transnational law perspective. It further argues that US-reinforced intellectual property rights rules have potentially paved the way for further US–China trade and investment talks. However, in order to better maintain a long-term balance between preservation of policymaking autonomy and regulation of protectionist measures, an approach better aligned with the World Trade Organization framework needs to be pursued.

Alienated Twins – The Overlooked Private Law Dimension of Global Trade and Investment Governance

“…The growing salience of non-tariff barriers, regulatory heterogeneity, and cooperation as well as concerns over heterodox political economies and related market distortions have made trade law scholars and policymakers assess the role of national private law systems in trade governance (Hoekman and Sabel, 2017;Lang, 2019;Mavroidis and Sapir, 2023). The Covid pandemic, furthermore, has rekindled discussions on the impact of the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPs) on national intellectual property law (Shu Shang and Shen, 2021;Abbott et al, 2024). Langille (2018), lastly, adopts a novel analytical perspective by applying concepts of contract law to the WTO regime and to question views of the WTO regime as a proto-constitutional order (Weiler, 2001;Trachtman, 2006).…”

How is the US and China Competition Impact Key Issues of International Law

“…Although some scholars recognize the benefits of a bilateral approach in the Sino-US context, which is more expeditious, more effective and can avoid the bargaining cost in a multilateral system, [19] still, the potential crises and flaws of the bilateral approach when addressing IPR issues seem to outweigh the benefits. First, bilateralism essentially violates some basic obligations in the multilateral WTO system like the most favored nation obligation.…”

“…The obligations for countries to follow the TRIPS-plus standards required bilateral agreements and the MFN principle is essentially elevating the original minimum standards required by the TRIPS agreement. [19] Second, the bilateral dispute resolution mechanism in this agreement lacks a neutral party and would allow the US to abuse its judicial power over China. [19] Third, some countries may interpret this agreement as China's concession to US hegemony, thus triggering more countries to turn to regionalism, which will lead to greater fragmentation of current global governance.…”

“…[19] Second, the bilateral dispute resolution mechanism in this agreement lacks a neutral party and would allow the US to abuse its judicial power over China. [19] Third, some countries may interpret this agreement as China's concession to US hegemony, thus triggering more countries to turn to regionalism, which will lead to greater fragmentation of current global governance.…”

The Practical Effectiveness of the Singapore Mediation Convention on the Protection of Intellectual Property Rights in China's Cross-Border E-commerce and Lessons Learned

“…The first dimension involves an exhaustive analysis of secondary data, including but not limited to annual reports, legal databases, and case studies pertinent toIPR and e-commerce in China. This step is essential for constructing an empirical foundation that reflects the broader trends, rules, and mechanisms currently in place, and serves as a backdrop against which the impact of the SMC can be critically evaluated (ShuShang & Shen, 2021). The second prong of our methodology hinges on semistructured interviews with a diverse set of stakeholders, ranging from e-commerce platform representatives and international brands to legal experts in cross-border IPR issues.…”