What is tiktok’s odds of winning a lawsuit against the U.S. government?

At present, of course, the most noticeable is the byte beating, which is about to pass the new ticket to the U.S. government.

On August 23, byte hopping announced that it would formally sue the U.S. government against Trump’s first administrative order issued on August 6, banning any enterprise or individual subject to U.S. jurisdiction from conducting any transaction with the parent company of tiktok and its subsidiaries.

As the future is uncertain, byte skipping is also preparing a “shutdown plan”.

As a result, people look forward to the next action of byte beating company, and on the other hand, they can not help but deduce the winning face of this lawsuit.

Historical dimension reference

In the pursuit of history, what people most expect is a complete victory similar to Fuyao Glass.

On April 10, 2002, Fuyao Glass filed a lawsuit against the U.S. Department of Commerce, asking it to withdraw the 11.8% anti-dumping duty imposed on the front windshield for automobile maintenance exported to the United States by Fuyao Group. The case lasted for more than three years. Finally, the US International Court of justice rejected the decision of the Ministry of Commerce, and the dumping rate was reduced from 11.80% to 0.13%.

It is worth mentioning that during the lawsuit, the sales of Fuyao Glass in the United States did not decline, but increased, and the lawsuit became the best propaganda weapon.

The success of the case caused a great sensation at home and abroad. Cao Dewang was called “the first person to win the anti-dumping lawsuit after China’s entry into WTO”. His golden sentence “whether to sell glass or not is a small matter, but we can’t turn black and white upside down and distinguish right from wrong. We must take the initiative to respond actively to lawsuits.” for many years, it has been used to encourage Chinese enterprises going to sea to take up legal weapons to safeguard their legitimate rights and interests.

“Glass King” Cao Dewang

However, not every enterprise can become Fuyao Glass to inspire later comers. Similarly, not all precedents can be compared with the current situation of Huawei and byte leaping.

Based on the comprehensive media review, several cases of Chinese enterprises winning over the US government have obvious characteristics of the times.

In 1981, the people’s Insurance Company of China sued the U.S. government for compensation for the Chinese cargo involved in the sinking of the U.S. nuclear submarine “George Washington” which rammed the Japanese cargo ship “nissho Maru”, and finally won the lawsuit. The reason is that at that time, China did not have a complete law to support the legal reciprocity between China and the United States, so the compensation could not be carried out according to the usual practice.

The Fuyao Glass Case in 2002 was based on the background that after China’s accession to the WTO, the US government conducted a large-scale anti-dumping investigation on Chinese enterprises exporting goods to the United States.

In 2009, China Tongling technology group won the lawsuit after appealing to the Federal International Trade Commission of the United States due to intellectual property disputes.

In 2012, rolls, an affiliated company of Sany Heavy Industries in the United States, sued the Committee on overseas investment in the United States against the background that the United States constantly curbed China’s overseas investment in the United States in the name of “national security”.

*The specific situation of each case can be obtained by adding the editor in chief wechat at the end of the article.

From imperfect laws, to anti-dumping, intellectual property rights and overseas investment, the development path of China’s foreign trade is outlined behind each lawsuit. However, when Huawei and byte jump arrive, they not only have to undertake the obstacles inevitably encountered by previous generations of sea going ways, but also face more complex new problems in the Internet era, including ideological unreasonable crushing.

Byte beat and Huawei can neither clear the legal barriers through domestic legislation like the people’s Insurance Company of China, nor can they list various reasons to prove their sales price is reasonable like Fuyao Glass.

Perhaps, everyone is waiting for a precedent as a reference for future generations, so that lagging laws can keep pace with the pace of the new era.

But at present, the situation is not optimistic.

On March 7, 2019, Huawei filed a lawsuit against the U.S. government for 2018 U.S. law, which prohibits federal agencies from doing business with it. On February 18, 2020, a federal judge in Texas announced that it would be rejected. Huawei sued the Federal Communications Commission on December 5, 2019, and is now awaiting a ruling in the New Orleans court of appeal.

Byte skipping can do more than Huawei.

Nevertheless, we have invited some experts in law and enterprise management to provide you with more information on the legal weapons that can be used for byte skipping. The people’s Insurance Company of China is the beginning, while Huawei and byte skipping will not and can not be the end point. It is always good to know more in advance.

Some reminders for byte skipping

One

Try not to use politics against politics

Guan Buyu

Columnist

Generally speaking, prosecuting the U.S. government is all about prosecuting its improper administrative intervention. The focus is on the regulatory mechanism of the U.S. government. This time, the reason for the byte skipping prosecution is due to improper procedures, and sometimes enterprises may sue the U.S. government for violating the constitution.

On the issue of due process, it should be emphasized that the three powers of the US government are separated, and the judicial power and executive power are separated. Therefore, if the U.S. government has some violations in essence, or does not conform to judicial principles, but the administrative order is within the discretion of the administrative system, the court will not intervene in the judicial.

US Attorney General William Barr and trump

For example, if you want to file a lawsuit saying that the U.S. government has made a wrong decision, but only explains the reasons from a political point of view, then you are likely to be “flat”, and the lawsuit may not be established.

Because of the three powers in the United States, although the judicial power has a high authority, it is relatively the most negative. It is necessary to draw a clear line of its own power and not exceed its power.

Therefore, I think that the breakthrough point for byte skipping is that the procedure for judicial review is improper.

Two

On Trump’s abuse of power

Dong Yizhi

lawyer

Whether Trump’s executive order has exceeded the president’s power is the focus of dispute between the two parties. Because Trump’s administrative order did harm to the interests of American users.

At present, a better legal breakthrough point is that the “Berman amendment” of the national emergency economic power act stipulates that the scope of sanctions imposed by the president of the United States cannot include information and information materials; the other is that Trump’s executive order violates the right of freedom of speech granted by the US Constitution.

The stars are white

The founder of the official account of “vernacular affairs”

This time, the U.S. government forced tiktok to divest its U.S. business, using another presidential power of trump, that is, invoking the international emergency economic power act, to prohibit U.S. enterprises from engaging in any transaction with the parent company of tiktok, and set a time limit.

In my opinion, trump is suspected of abusing his power.

According to media reports, a spokesman for tiktok said trump and the U.S. government were prosecuted on two charges: violation of the U.S. Constitution and overstepping the power of the president.

Because the international emergency economic power act requires the United States to be cited only when it encounters an “unusual and very serious threat”.

Secondly, the international emergency economic power act also clearly states that “the U.S. government cannot regulate or prohibit sharing in the form of” personal communication “, movies or other media through this act.

In other words, Trump’s use of the international emergency economic power act to prohibit tiktok is actually a violation of the American right to freedom of speech.

Therefore, tiktok is very wise to sue trump in this way.

On the issue of Chinese enterprises suing the U.S. government, we need to pay attention to not standing on such a preset position.

Tiktok, for example, can’t completely think of it as a Chinese enterprise. On the judicial level, it’s just a company operating in the United States suing the U.S. government. Theoretically speaking, the American judiciary will be more inclined to “foreign enterprises” in the issue of enterprises suing the government, with appropriate tilt to balance the power of the government.

However, the judicial system is not a vacuum system after all, and it is impossible to completely avoid the influence of public opinion and public opinion. Therefore, what kind of balance can be formed in the end depends on the court and judges who accept the case.

If tiktok wins the lawsuit, it does not mean that it can solve the current difficulties in the United States. Whether the administrative obstacles of enterprises can be removed is another matter.

Among Chinese enterprises, Huawei is one of the most successful companies in the United States. You know, to win a local company in the United States and strive for a favorable result is actually more difficult than a lawsuit with the U.S. government. In the lawsuit between Huawei and Cisco, Huawei and Cisco reached a settlement.

Finally, when a Chinese enterprise went to the United States to operate, it encountered various problems that needed to be solved through judicial channels. At this time, Chinese enterprises would be afraid of difficulties, unfamiliar with the legal system of the United States, and even dare not respond to the lawsuit, giving up their legitimate rights that they should have fought for.

In fact, it is very common for companies and governments to take legal actions against each other in the United States. Companies such as Microsoft and Google have many such experiences. What Chinese enterprises need to do is to operate legally and hand over legal problems to professional lawyers to solve through professional channels.

When Chinese enterprises go abroad, there are two different types of problems: one is that when Chinese enterprises export products to foreign countries, they will be subject to anti-dumping investigation and price review; the other is that Chinese enterprises will be investigated when they invest in overseas mergers and acquisitions.

Of course, these problems can be solved through judicial channels.

When Chinese enterprises face administrative litigation overseas, first of all, they should be very familiar with the laws of the country; secondly, they should be very familiar with the judicial system of the country; thirdly, the cost of administrative litigation is very high, and the time is long and the cost is very high. Therefore, enterprises need to make some evaluation on this.

For example, judging from the case of tiktok, byte hop is a strong company. It was treated like this in the United States, which had a great impact on the whole world.

Secondly, this case is not normal market behavior or legal behavior. The conflict between China and the United States has led to the injection of some special ideological and political interests into many commercial activities, which will lead to such problems.

As a byte beating company, it needs to assess: why sue the U.S. government? Is there any evidence that the U.S. government has violated the law? Is the company protected by U.S. law? Does it take a long time and a lot of money to file a lawsuit?

Therefore, when Chinese enterprises go abroad to sell and invest in other countries, they need to understand the political systems, laws, ethnic religions, customs and habits of different countries, as well as the relationship between this country and China.

One thing that needs to be specially reminded is that when doing business in the United States, you need to understand that the United States is a federal country, and each state has its own laws and regulations. What can be done in New York may not be able to be done in Los Angeles. Moreover, in the current tense Sino US relations, entrepreneurs need to consider more risks.

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