Implications of the China–US trade agreement on the civil protection of trade secrets in China: is it a game changer?

Abstract

ABSTRACT China and the United States (US) signed the China–US trade agreement in early 2020 as a means to pause trade tensions between these two large economies. The protection of trade secrets is a priority issue that the trade agreement aims to address. In this regard, the current article examines the implications of the China–US trade agreement in relation to civil protection of trade secrets in China. This article first analyses the traditional civil protection method of trade secrets in China, which relies on the European approach of anti-unfair competition law. It then decodes several different and improved protection measures for trade secrets provided in the China–US trade agreement. Lastly, this article identifies some implications of the trade agreement for China’s legal practices. China has amended its Anti-Unfair Competition Law and enacted relevant judicial interpretations regarding preliminary injunctions in an endeavour to fulfil its commitments. Arguably, according to provisions in the China–US trade agreement, the protection of trade secrets in China faces a game changer from the traditional unfair-competition approach to the intellectual property approach. Additionally, the authors of this article believe that China’s current provisions in the Anti-Unfair Competition Law are not sufficient. Rather, China needs to enact a standalone trade secret law containing provisions of trade secret protection and the legal use of trade secrets.