Barnett: Combating Trade Secret Theft by Foreign State-Owned Entities – An International Law Approach

Abstract:

Misappropriation by foreign state-owned entities, particularly Chinese state-owned enterprises, of U.S.-owned trade secrets is a growing problem. For jurisdictional reasons, traditional legal means of stopping this activity have generally failed. This Article presents an international law strategy for combating trade secret theft by foreign state-owned enterprises. First, this Article argues that the activities of state-owned enterprises are attributable to the State under international law. Second, this Article argues that trade secrets are a form of intellectual property, and as property, State expropriation requires compensation under international law. Thus, the Article argues that misappropriation of trade secrets by foreign state-owned enterprises constitutes an act of State expropriation requiring compensation under international law. Therefore, to combat this problem, the United States could bring a case before the International Court of Justice against China (or any other State where such a practice is occurring) to seek compensation from the State on behalf of U.S. businesses whose trade secrets have been misappropriated by a foreign state-owned enterprise while the business was operating in the foreign State.

 

 

Available for download here.

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