It's interesting to compare the forced technology transfer provisions of the EU-China Comprehensive Agreement on Investment (CAI) and the US-China Phase One trade agreement. Here are the CAI provisions:
Article 3
Performance Requirements1. Neither Party may, in connection with the establishment or the operation of all enterprises in its territory, impose or enforce any requirement or enforce any commitment or undertaking:
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(f) to transfer technology, a production process, or other proprietary knowledge to a natural person or an enterprise in its territory;
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2. Neither Party may condition the receipt or continued receipt of an advantage, in connection with the establishment or operation of all enterprises in its territory, on compliance with any requirement:
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(f) to transfer technology, a production process or other proprietary knowledge to a natural person or an enterprise in its territory.
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3. Neither Party shall directly or indirectly require, force, pressure or otherwise interfere with the transfer or licensing of technology between natural persons and enterprises of a Party and those of the other Party. Such transfer or licencing of technology shall be based on market terms that are voluntary and reflect mutual agreement.
And here are the Phase One deal provisions:
Article 2.1: General Obligations
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2. Any transfer or licensing of technology between persons of a Party and those of the other Party must be based on market terms that are voluntary and reflect mutual agreement....
Article 2.2: Market Access
Neither Party shall require or pressure persons of the other Party to transfer technology to its persons in relation to acquisitions, joint ventures, or other investment transactions.
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Article 2.3: Administrative and Licensing Requirements and Processes
1. Neither Party shall adopt or maintain administrative and licensing requirements and processes that require or pressure technology transfer from persons of the other Party to its persons.
2. Neither Party shall require or pressure, formally or informally, persons of the other Party to transfer technology to its persons as a condition for, inter alia:
(a) approving any administrative or licensing requirements;
(b) operating in the jurisdiction of the Party or otherwise having access to the Party’s market; or
(c) receiving or continuing to receive any advantages conferred by the Party.
3. Neither Party shall require or pressure, formally or informally, persons of the other Party to use or favor technology that is owned by or licensed to its persons as a condition for, inter alia:
(a) approving any administrative or licensing requirements;
(b) operating in the jurisdiction of the Party, or otherwise having access to the Party’s market; or
(c) receiving or continuing to receive any advantages conferred by the Party.
How do these two sets of provisions compare? Both are more extensive than what is currently in para. 7(3) of China's accession protocol. In terms of which new set is stronger, there are a lot of nuances here, but I'm struck by the words "indirectly" and "otherwise interfere with" in Article 3, para. 3 of the CAI. To me, those look like they could lead to fairly broad interpretations of the government actions covered. I can imagine that the Biden administration would want something similar in any future negotiation with China.
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