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It had been stated that intellectual rights were compromised during manufacture of US originated products contracted to be made in China during globalization.

Why are the allegations not taken as a dispute for redressal before the International Court of Justice? Were there no terms of trade contract incorporated a priori for settlement of trade related disputes whenever they arose? Was it not possible to prove or establish infringements when they occurred? Is patent law seriously flawed in International trade?

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Cases only appear before the International Court of Justice with the explicit consent of both parties involved; it's more like binding arbitration than a proper court system. Historically speaking, both the USA and China have been unwilling to submit themselves to UN judgement in any context, seeing such as a violation of their national sovereignty. And to be perfectly frank, I suspect most every country in the world gets some political and economic advantages by playing fast and loose in commercial gray areas. In my opinion, neither China nor the USA really wants tighter enforcement of international trade and patent law. The gains they would recover by preventing infringements would be small compared to the loses they might experience in other arenas (e.g., if a Chinese company violated a patent to produce a cheap smartphone knock-off, the company that holds the patent might lose some money, but the increase in trade would generate revenue for both nations).

See International Court of Justice: How the Court Works

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  • So the court cannot by default summon a member as defendant on a complaint filed by the plaintiff like in a civil suit.. even if the parties are otherwise permanent members of GA, SC and ICJ?
    – Narasimham
    Commented May 2, 2020 at 19:50
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    @Narasimham: Unless two states have a standing treaty or provision that requires them to refer a case to the ICJ (something they would have had to agree to beforehand) then no, one state cannot unilaterally summon another state. See the first few paragraphs of ICJ procedures. Commented May 2, 2020 at 20:30
  • @Narasimham there's a substantial conceptual difference between normal civil suits and international relationships - a person is subject to the laws and legal system of the land no matter if they wish it or not; but a sovereign by definition is not subject to anything except things where they willingly, temporarily, revocably cede part of their sovereignty through, for example, some treaties - which they follow only because (and while) the treaty is considered beneficial. The consequences of en.wikipedia.org/wiki/Nicaragua_v._United_States are a great example.
    – Peteris
    Commented May 2, 2020 at 22:38
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Why are the allegations not taken as a dispute for redressal before the International Court of Justice?

As Ted Wrigley explained in another answer, this doesn't fall within the scope of the ICJ. Apart from that, your question seems valid.

Were there no terms of trade contract incorporated a priori for settlement of trade related disputes whenever they arose?

There is a dispute settlement framework for the problem you describe: the WTO. One of the 'trade contracts' (as you put it) that come to mind in the case you describe is the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). According to Wikipedia:

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organization (WTO). It sets down minimum standards for the regulation by national governments of many forms of intellectual property (IP) as applied to nationals of other WTO member nations. TRIPS was negotiated at the end of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) between 1989 and 1990 and is administered by the WTO.

The United States has filed complaints against China with respect to that agreement. In 2018, from wto.org:

The United States has requested WTO consultations with China concerning certain Chinese measures which the US alleges are inconsistent with China’s obligations under the WTO’s Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs). The request was circulated to WTO members on 26 March.

I don't know the exact timeline of all US-China relations. The last update with respect to that complaint, however, is a series of requests by the US for suspensions of the panel considering the complaint, according the WTO:

On 3 June 2019, the United States requested the panel to suspend its proceedings until 31 December 2019. On 4 June 2019, China agreed with the United States' request. In response to a query from the panel, the parties stated that the panel should consider this request as one made pursuant to Article 12.12 of the DSU. On 12 June 2019, the panel informed the DSB of its decision to grant the United States' request and suspend its work. In its communication the Panel noted that pursuant to Article 12.12 of the DSU, the authority of the panel shall lapse after 12 months of the suspension of its work. On 23 December 2019, the United States requested the panel to further suspend its work until 29 February 2020. On 8 January 2020, the panel informed the DSB of its decision to accept the United States' request and extended the suspension of its work until 29 February 2020. On 3 March 2020, the panel informed the DSB that it had accepted a request submitted by the United States on 2 March 2020 to further suspend the panel’s work until 1 May 2020.

My guess is that this has a lot to do with the broader trade war between the US and China and the negotiations that have been conducted to end that trade war.

Was it not possible to prove or establish infringements when they occurred? Is patent law seriously flawed in International trade?

The case I cited is not necessarily about specific infringements. The US alleged that China did not fulfill its obligations to safeguard intellectual property rights which it has agreed to do under TRIPS. I think the difficulty here is that both countries rely on each other for trade, so it gets to a political level where compromises are made.


The above cited case wasn't the first such case. A similar case had been made in 2007 when the US also claimed inconsistencies with China's adhering to TRIPS (and other issues). The conclusion of the panel (per the summary here) regarding the TRIPS part was:

The Panel did not endorse China's thresholds but concluded that the factual evidence presented by the United States was inadequate to show whether or not the cases excluded from criminal liability met the TRIPS standard of “commercial scale” when that standard is applied to China's marketplace.

The entire thing is a lot longer and the links can be a good starting point for reading up on that, but at the time China's response was:

On 15 April 2009, China informed the DSB that it intended to implement the DSB recommendations and rulings and that it would need a reasonable period of time to do so. On 29 June 2009, China and the United States informed the DSB that they had agreed that the reasonable period of time for China to implement the DSB recommendations and rulings shall be 12 months from the adoption of the report.

As you can see, these disputes take years and the outcomes aren't that spectacular. The first(?) case ended in China's promising to create new laws to fulfill its treaty obligations. But the most recent case, starting in 2018, still hasn't been resolved and it is probably (I'm not familiar enough with the subject to state it as a fact) being negotiated at the political level.

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