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On 27 April 2020, the Cyberspace Administration of China (“CAC”), in conjunction with 11 other government agencies, jointly issued the Cybersecurity Review Measures (“Review Measures”). The Review Measures to be implemented as of 1 June 2020 will replace the Measures for the Security Review of Network Products and Services (for Trial Implementation) (“Trial Measures”). The Review Measures stipulate the scope of application, reporting procedures, evaluation factors, compliance works (in particular for the protection of the rights and interests of operators of critical information infrastructure (“CIIOs”) and product and service providers), legal responsibilities, etc. in relation to the cybersecurity review, which portends that China’s cybersecurity review has entered a new stage.
Continue Reading Innovations & New Developments of Cybersecurity Review Measures

U.S. litigation can be a long and expensive process involving multiple appeals and extensive discovery. Under the “American rule” on costs, each party typically bears its own costs. Therefore, any defenses that can result in dismissal of an action as early as possible are valuable to defendants, particularly to non-U.S. defendants who face increased costs due to their distance from the forum.
Continue Reading Jurisdiction Over and Service on Non-U.S. Parties in U.S.

The amendments to the Supreme People’s Court’s Provisions on Evidence in Civil Procedure will come into effect on May 1, 2020 (the “New Evidence Provisions”). This is the first time that the Supreme People’s Court (“SPC”) amended this judicial interpretation since it came into effect in 2002. The New Evidence Provisions has 89 amended or new provisions, and one of its significant improvements is the rules of electronic data. This note will provide an overview on the new rules related to electronic data evidence, alternatives of securing electronic data under the New Evidence Provisions, and our recommendations.
Continue Reading Securing Electronic Data Evidence under the New Provisionis

United States federal and state laws allow foreign litigants to seek an order from a U.S. court requiring a person within the court’s jurisdiction to provide testimony or produce documents for use in a non-U.S. proceeding. These procedures can be used to obtain evidence even where the foreign tribunal has no jurisdiction over the party from whom the evidence is sought.
Continue Reading Evidence through a US Proceeding in Aid of a Chinese Lawsuit

On April 21, 2020, Beijing Higher People’s Court released the Guidelines on Determination of Damages and Statutory Damages in Disputes over Intellectual Property and Unfair Competition (the “Guidelines”). It provides detailed guidelines on methods of damages calculation, punitive damages, recovery of attorney fees, evidence rules on defendant’s failure of producing evidence, and statutory damages. While the Guidelines have binding force among all the courts in Beijing, but it mirrors many existing practices across the country and is actually a secondary authority for all People’s courts. This note serves as an overview of those provisions related to trademark and passing off in the Guidelines followed by our comments and recommendations.
Continue Reading Guidelines on Damages Calculation in IP Disputes

As enterprises are increasingly engaged in international trade and investment, international arbitration is recognized as the preferred option in the face of cross-border disputes. However, international arbitration, which differs from domestic arbitration with complex procedures, often put parties unfamiliar with its rules in an inherent disadvantage. King & Wood Mallesons’ international arbitration teams are located in Beijing, Shanghai, Shenzhen, Hong Kong Special Administrative Region of China, Sydney, Melbourne, Perth, London, Madrid, Brussels, Dubai, Tokyo, New York and Silicon Valley. KWM International Arbitration Fundamentals is co-hosted by King & Wood Mallesons’ China and Australia international arbitration teams. The purpose of the program is to share knowledge and experience on international arbitration, including international commercial arbitration and investment arbitration, from the perspective of experienced lawyers. Hopefully it will benefit parties engaged in international arbitration. Please comment with any suggestions or ideas.
Continue Reading IA Fundamentals | 4. International Arbitration Agreement (I)