Antitrust Protectionism: Escaping the Perils of Anti-Suit Injunctions Through WTO Law

Abstract This piece delves into the global surge of antitrust litigation involving intellectual property–related “antisuit injunctions” (“ASIs”), a judicial remedy with extraterritorial impact aimed at curtailing patent holders from enforcing their rights protecting technologies essential for the implementation of technical standards (standard essential patents). Litigants are racing to secure their preferred legal venue for establishing worldwide licensing rates, while also attempting to prevent patent holders from initiating patent infringement proceedings elsewhere using ASIs. This phenomenon poses an inherent risk of exacerbating the current trade fragmentation trend across geopolitical blocks and has already led to an ongoing dispute at the World Trade Organization between the European Union and China. This paper argues that the Agreement on Trade-Related Aspects of Intellectual Property Rights offers a readily available solution to counter the perils of antitrust protectionism by prohibiting barriers to legitimate trade that do not include safeguards against abuse of enforcement procedures (that is, ASIs with an overly broad scope).