The anti-suit injunction has a deep historical origin. It originated in England and has gradually been accepted by common law countries, which have a different legal tradition than civil law countries. In fact, the dispute between common law and civil law systems stems from whether to admit that the anti-suit injunction infringes the jurisdiction of other countries. In recent years, more and more judges tend to issue anti-suit injunctions or anti-anti-suit injunctions in SEP cases, such as China, France and Germany.
This is an extreme manifestation of international competition in intellectual property rights. On the one hand, private negotiations are no longer able to resolve related patent disputes. Restricting and forcing competitors to bow down through litigation is also a way to gain an advantageous competitive position. On the other hand, we cannot rule out the influence of political games between countries. The international competition of intellectual property rights is essentially a competition of national soft power. To some extent, the anti-suit injunction is a manifestation of the competitiveness of a legal system. The parties not only choose the court, but also choose the legal system, which can give them a litigation advantage.
The reference of extraterritorial legislation and international treaties and the review of the legislative and judicial status of civil law systems and common law system, especially the conducted case study, will help to complete and improve China's law. China's legal system has a typical continental European civil law system tradition, which fundamentally determines that it cannot make very broad provisions in principle on anti-suit injunctions, giving judges great discretion, as is the case in the common law. However, the civil law system (represented by Germany) that rejects the anti-suit injunction is too conservative. Although the anti-anti-suit injunction can safeguard German judicial sovereignty to a certain extent, it is easy to make the parties and the court fall into a passive situation. China's anti-suit injunction system in intellectual property litigation should include three types: anti-suit injunction, anti-anti-suit injunction and anti-execute injunction, adopting clear rules to restrict the power of judges and the issuance of the anti-suit injunction.
In conclusion, the key to resolving the dispute is to issue anti-suit injunctions on the basis of abiding by the principle of international comity, so as to minimize the impact of anti-suit injunctions on the judicial sovereignty of other countries. In the future, all countries could strengthen the dialogue mechanism on intellectual property rights, as well as reach general agreement on the anti-suit injunction in intellectual property disputes by signing international treaties, which will limit the issuance of anti-suit injunctions, improve TRIPS agreements, and deepen the international protection and cooperation of intellectual property.
