The Supreme People’s Court of China (SPC) has released a new set of judicial interpretations concerning interim injunction applications for intellectual property rights (IP Rights)-related disputes. The Provisions on Application of Laws in Adjudication of Action Preservation Cases Involving Intellectual Property Disputes (Fa Shi  No. 21) (Provisions) were published on 12 December 2018 and take effect on 1 January 2019. Prior to that, a consultation draft of the Provisions was released for public consultation on 26 February 2015.
The Provisions provide further guidance on interim injunctive relief (i.e. action preservation) applications made under Articles 100 and 101 of the Civil Procedure Law 2017 (2017 CPL) in cases concerning IP Rights and unfair competition, and clarify certain key concepts therein. (For more information on interim relief in the PRC, contact firstname.lastname@example.org to request a copy of our guide “Interim Relief in Mainland China”.)
Some important articles in the Provisions, which are covered in this post, are:
- Article 6, which provides for circumstances classified as “urgent circumstances” under Articles 100 and 101 of the 2017 CPL;
- Article 7, which lists the factors that the courts shall take into consideration in determining whether an action preservation order should be granted;
- Article 10, which elaborates on the concept of “irreparable harm” under Article 101 of the 2017 CPL in cases related to IP Rights or unfair competition. Risk of “irreparable harm” is an element that needs to be proved in any application for pre-litigation or pre-arbitration action preservation orders; and
- Article 16, which specifies circumstances under which applications for action preservation will be considered “wrongful”.
In the growing world of new technology, intellectual property (IP) rights are a businesses’ most precious asset. The expansion into emerging markets can offer a multitude of opportunities for a business to market its IP, but this inevitably comes with the threat of infringement of those IP rights and illegal exploitation by others.
HSF is seeing a growth in international arbitration in the sector as companies are continually seeking stronger ways in which to protect and enforce their IP rights on a global scale. Arbitration is increasingly a preferred forum for resolving IP disputes, not only because it offers a private and confidential forum in which to have the dispute heard by an experienced and specialised tribunal, but also because international arbitration offers the best available mechanism for enforcement of decisions across jurisdictions, and reduces the risk of parallel litigation which often comes hand-in-hand with IP disputes.
Given the nature of IP rights, their enforcement and protection requires careful planning. It is recommended that, from the outset, parties consider carefully the arbitration forum in which they might want their disputes resolved and the rules that will govern that process. Although numerous institutional arbitration rules may be used in such disputes, specialist rules like the Arbitration Rules of the World Intellectual Property Organisation (WIPO)¹ provide a forum tailor-made for IP disputes.
The WIPO Center has updated its Mediation Arbitration and Expedited Arbitration Rules, with the new rules taking effect on 1 June 2014. The key changes, including new provisions on joinder, consolidation and the availability of interim relief from an emergency arbitrator, are set out below. Further to the changes, the Center’s Arbitration Rules provide a modern framework for the resolution of IP disputes.