Policy Brief 155, 17 March 2026
WTO arbitration on China’s standard patents policy threatens TRIPS balance and national autonomy
By Nirmalya Syam
This article critically examines the WTO arbitration award in China – Enforcement of Intellectual Property Rights (WT/DS611/ARB25), which marks a significant departure from established interpretations of Article 1.1 of the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). The arbitrators endorsed a broad “anti-frustration” reading of the provision, effectively imposing cross-border obligations on WTO Members and challenging the autonomy of national courts. Although Article 1.1 of TRIPS was relied upon by the European Union only in conjunction with Article 28, the arbitrators treated it as an autonomous normative foundation for imposing cross-border constraints on members’ judicial measures. The article contends that this expansion of Article 1.1 goes beyond its text and structure, risks undermining legitimate public-interest measures, and opens the door to non-violation type complaints that are excluded from TRIPS. The analysis underscores the need to preserve the balance between IP enforcement and national policy space, especially in disputes involving public policy considerations.