CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS REQUEST TO JOIN CONSULTATIONS
Document: Communication from Canada
Date: 8 March 2022
Document codes: WT/DS611/4
Complainant: EU
Respondent: China
Third parties: Australia, Brazil, Canada, Colombia, India, Indonesia, Japan, South Korea, Norway, Peru, Russia, Singapore, Switzerland, Taiwan, Thailand, Ukraine, United Kingdom, U.S., Vietnam
Dispute stage: Panel
Agreements cited: Art. 1.1, 28.1, 28.2, 41.1, 44.1, 63.1, 63.3  Intellectual Property (TRIPS)Section 2(A)(2)  Protocol of Accession

CHINA – ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS
REQUEST TO JOIN CONSULTATIONS
Communication from Canada
The following communication, dated 4 March 2022, from the delegation of Canada to the delegation
of China, and the delegation of the European Union, is circulated to the Dispute Settlement Body in
accordance with Article 4.11 of the DSU.

Pursuant to Article 4.11 of the Understanding on Rules and Procedures Governing the Settlement of
Disputes (DSU), the Government of Canada hereby notifies its request to join the consultations
requested by the European Union in relation to China 's measures affecting enforcement of
intellectual property rights. 1 The European Union 's request for consultations (WT/DS611 /1) was
circulated to Members on February 22, 2022.

Canada has serious concerns with the transparency of China 's measures given their potential to
negatively impact and undermine rules-based trade with respect to the protection and enforcement
of intellectual property rights. As identified in the European Union's request for consultations, China
has adopted and maintains a policy on issuing "anti -suit injunctions" (ASIs), which impedes patent
holders that are subject to an ASI in China from enforcing thei r rights in other jurisdictions by
imposing significant monetary penalties if they seek to enforce their rights in another jurisdiction.
China's measures interfere with the exercise of rights guaranteed under the TRIPS Agreement and
therefore threaten to d isrupt trade in a manner affecting Canada's economy, particularly given the
lack of transparency and available information on these measures. For instance, on July 6, 2021, the
European Union made an official request pursuant to Article 63.3 of the TRIPS Agreement for further
information on China's recent court decisions and policy related to ASIs. However, on September 7,
2021, China answered that there is no obligation under the TRIPS Agreement to respond to that
request.

Canada has a substantial trade interest in these consultations. Canadian companies are affected
both directly and indirectly by the ASI policy developed through China 's court decisions, with the
lack of transparency having the potential to create a chilling effect on the market by increasing the
risk and trade costs associated with weaker regulatory predictability. While the European Union
made a formal request in July 2021 for information on recent decisions by China 's courts involving
the issuance of an ASI, as well as for further clarification on China 's recent policy developments in
this area, China has not provided any of the requested information in the context of formal
discussions at the WTO.

Canada remains committed to the principle of transparenc y at the WTO, including with a view to
ensuring that businesses continue to thrive in a predictable rules-based multilateral trading system.
Particularly as China's policy on ASIs involves standard-essential patents in telecommunications and

1 Communication from the European Union, "China – Enforcement of Intellectual Property Rights:
Request for Consultations by the European Union," dated February 18, 2022 (WT/DS611/1, IP/D/43,
G/L/1427) (circulated February 22, 2022) ("EU Request for Consultations") (requesting consultations pursuant
to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the Settlement of Disputes, in
conjunction with Article 64.1 of the Agreement on Trade Related Aspects of Intellectual Property ("TRIPS
Agreement"), and XXII:1 of the General Agreement on Tariffs and Trade 1994.

other emerging high -tech sectors of the global economy, court decisions in this area can have
significant implications for intellectual property rights holders and investors, as well as users o f
mobile products and other emerging technologies worldwide. It is therefore important to ensure that
WTO Members make publicly available laws and regulations, and final judicial decisions and
administrative rulings of general application, pertaining to th e subject matter of the TRIPS
Agreement. Canada continues to engage with other WTO Members in supporting rules-based trade,
towards a transparent and predictable multilateral framework with the WTO at its core.

The European Union alleges in its request that China's failure to publish final decisions pertaining to
the subject matter of the TRIPS Agreement and failure to respond to requests for information violates
China's obligations under Articles 63.1 and 63.3 of the TRIPS Agreement because China has fai led
to comply with the transparency obligations set out in those provisions. Canada considers that a
violation of these obligations has the potential to seriously affect trade by preventing WTO Members
and rights holders from being aware of the measures th at impact their economic interests. The
European Union also alleges that China 's measures are inconsistent with certain obligations under
Articles 1.1, 28.1, 28.2, 41.1 and 44.1 of the TRIPS Agreement. Canada considers that these
provisions pertain to fund amental issues of WTO law. Canada has a vested interest in how these
provisions are being implemented by China. Finally, the European Union alleges that China has acted
inconsistently with Section 2(A)(2) of the Protocol of Accession of the People 's Republic of China
because it does not apply its laws in a uniform, impartial and reasonable manner. Canada is
concerned that global trade has been negatively affected by China 's deviation from the balance of
rights and obligations it negotiated with the EU and the other WTO Members when it acceded to the
WTO.

Based on the foregoing, Canada has a substantial trade interest in participating in these
consultations, and an interest in assuring that China's measures are applied in accordance with the
WTO Agreements and China's Protocol of Accession to the WTO.

Canada therefore respectfully requests that it be permitted to join the consultations in this dispute.

A copy of this letter is being sent to the European Union and to the Chairperson of the Dispute
Settlement Body, with a request that the letter be circulated to Members.