Can Huawei sue the US government for defamation?

  • Martin Kwan

Abstract

This article studies the law of foreign state immunity from a comparative perspective and uses the facts of Huawei-US controversy as a test case to illustrate the differences in the laws of various jurisdictions. The US government has made a number of allegations against Huawei regarding its 5G products and services. The US has also called for the imposition of a ban on Huawei from competing for 5G contracts in a number of common law countries. As a result, Huawei’s business and its reputation are inevitably damaged. Certain allegations against Huawei’s business ethics may be difficult to support due to lack of evidence to support it. This article evaluates the threshold question of foreign state immunity to see if Huawei can sue the US government for defamation. It is concluded that state immunity would block such a claim in most common law jurisdictions, though it may be possible to sue in Canada. It would mean (1) Huawei does not have sufficient legal protection, and (2) it would imply a country may be able to use defamation as an innovative and strategic tool to interfere with commercial competition whilst it may not have any legal consequence. The position on foreign state immunity in China will be discussed for academic comparison.

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Published
2020-03-02
Section
Articles