US-China Cyber Relations; Cybersecurity Law; Landmark Case on China’s Anti-Monopoly Law; Event Summaries and Commentaries U.S.-China Cyber Relations
U.S.-China Cyber Relations
Chinese President Xi Jinping’s meetings with U.S. President Trump yesterday and today have captured the world’s attention. Will these meetings spark our entry into a new era of U.S.-China relations on important issues, such as trade and security? While it is too early to draw any conclusions, the potential impact of these meetings on the ongoing US-China dialogues on fighting cybercrime and related issues–a result of President Xi’s state visit to the U.S. in September 2015–should be considered. In March, thanks to invitations from the Hoover Institution and SINET (Security Innovation Network), Dr. Mei Gechlik, Founder and Director of the Stanford Law School China Guiding Cases Project (“CGCP”), spoke on U.S.-China cyber relations and related topics, including China’s Cybersecurity Law and its implications for businesses, at the Hoover Institution’s “Conference on U.S.-China Relations: Cyber and Technology” and SINET’s “IT Security Entrepreneurs Forum” .
China’s Cybersecurity Law and Guiding Cases
China’s Cybersecurity Law will come into effect on June 1. Many provisions, including those referencing the ambiguous term “critical information infrastructure”, have aroused concerns (see, e.g., Article 31, which also provides that the State Council will define the specific scope of this type of infrastructure). These concerns recall the challenges facing foreign investors when China’s Anti-Monopoly Law was passed in 2007. The term “relevant market”, a crucial concept in this law, was not clearly defined. The State Council subsequently issued a regulation to provide some guidance. The concept was tested in different cases and finally the Supreme People’s Court (“SPC”) decided Qihu v. Tencent, which was recently selected as a Guiding Case (“GC”) (Guiding Case No. 78), thereby becoming a de facto binding precedent in China. Will the definition of the term “critical information infrastructure” go through a similar path: State Council regulation, followed by a landmark case that is ultimately selected as a GC? The CGCP will follow this development closely.
Guiding Cases Nos. 78-87
Given the importance of Guiding Case No. 78 (“GC78”) (Beijing Qihu Technology Co., Ltd. v. Tencent Technology (Shenzhen) Company Limited and Shenzhen Tencent Computer Systems Company Limited, A Dispute over Abusing Dominant Market Positions), the CGCP expedited its translation process to be able to share the full-text English translation with you now!
GC78 was released in early March, together with nine other GCs. Their release brought the total number of GCs to 87, of which 20 are related to intellectual property and/or China’s Anti–Unfair Competition Law and Anti-Monopoly Law (GCs 20, 29–30, 45–49, 55, 58, 78–87). GC78, the first Internet-related anti-monopoly case handled by the SPC ( noted by Dr. Gechlik in May 2015 as a good candidate for selection as a GC ), is the fourth longest and the most detailed in reasoning (with 80% of its text devoted to explaining the SPC’s reasoning) of all GCs. For more observations about GC78-87, please read Dr. Gechlik’s comment published by Thomson Reuters Practical Law China .
Event Summaries and Commentaries
In addition to the above, we are happy to report the success of our late February events, which all featured thoughtful presentations and robust discussions. Our remarks given at the World Bank and Princeton University discussing China’s “Open Judiciary” and “Belt and Road” Initiatives: Implications for Governance in China and Beyond sparked interesting exchanges with participants. We were extremely pleased as well with the lively discussions and large turnout for our Guiding Cases SeminarTM organized at American University Washington College of Law titled “Growing Significance of Cases in China: Implications for Legal Education and Legal Practice”. The English and Chinese event summaries of our talks given at the World Bank and Princeton are now available online. To find out how keynote speaker Southern District of New York U.S. Senior Federal Judge Sidney H. Stein responded to SPC Judge Guo Feng’s speech on the compilation and application of GCs at the Guiding Cases SeminarTM and to learn what our other distinguished speakers discussed, please see the English and Chinese event summaries for this event.
The growing significance of cases in China should not be considered to be a unique trend in this civil law country. The CGCP’s series of commentaries comparing the systems in jurisdictions including Italy, Taiwan (commentaries written by Judge Huang Huifang and Judge Lv Tailang), Japan, and Germany, has illustrated that while cases are important in Anglo-American legal systems, they carry different levels of significance in jurisdictions that traditionally focus on statutes.
The CGCP thanks our event hosts and sponsors, including American University Washington College of Law (“AUWCL”), the AUWCL Office of Global Opportunities, the Washington Foreign Law Society, Princeton University U.S. China Coalition, Princeton University’s Program in Law and Public Affairs, the Center on Contemporary China at Princeton University, the World Bank, Alston & Bird LLP, Broad & Bright, the Center for East Asian Studies of Stanford University, and the Fu Tak Iam Foundation Limited, for their kind and generous support. The CGCP strives to continue bringing you more insights about China’s GCs. Please help us achieve this goal by making a gift to us today and become part of our historic mission to help China develop its case law system. Thank you for your support!