A number of American and Chinese private litigants filed lawsuits against each other’s governments during the recent pandemic caused by the global spread of COVID-19. We argue that the surge of this type of transnational public law litigation is an immediate response to misinformation dominating the narrative and discourse of the conflict in the context of (mis-)information warfare.

Transnational public law litigation has always existed under United States law. As defined by Professor Harold Koh, private parties bring transnational public actions either to seek to vindicate public rights and values through judicial remedies, or to articulate a public international norm. However, the rapid spread of information and misinformation in the Internet Era has tilted the scale to allow more filings of such litigation following a major global crisis (e.g. COVID-19 pandemic). In March 2020 alone, as the number of patients who tested positive for COVID-19 skyrocketed in the United States, three class action claims were filed by plaintiff firms against the People’s Republic of China (“PRC”) in the Federal courts in Florida, Texas, and Nevada. Other co-defendants listed included Chinese public entities, such as the National Health Commission of the PRC, the Ministry of Emergency Management, Wuhan Institute of Virology, the People’s Liberation Army, the People’s Government of Hubei Province, and the government of the city of Wuhan. These claims are said to represent American small business owners who have experienced major economic losses due to the outbreak of the pandemic and seek trillions of dollars in compensatory damages.

Not coincidentally, in non-litigious China, a pro se litigant in Wuhan who is also a PRC lawyer, filed a civil claim against the United States government, the Center for Disease Control and Prevention, the Department of Defense, and International Military Sports Council with its Chinese representative office located in the city of Wuhan, for compensating his own economic damages of CNY 150,000 (approximately $20,000) suffered during the lock-down period plus other emotional damages and expenses. Four days later, a Beijing-based lawyer also filed a claim against President Donald Trump based on his labelling COVID-19 as a “Chinese Virus” in press conferences and on Twitter, seeking an official apology and additional compensation for reputational losses. Even if these claims are largely without merit, it is foreseeable that additional similar claims might follow.

(Mis-)Information Warfare

We live in an era of confrontation. The U.S. and China have been in high-profile trade friction and diplomatic tension for several years and just closed a trade deal in late 2019, leaving more troubling fundamental issues identified in the United States Trade Representative’s Special Section 301 investigation against China unaddressed.  Apart from these economic, political or military confrontations, we are now witnessing information warfare. Information warfare is the use of (mis-)information to dominate the narrative of the conflict or discourse of dispute. Likely, one party to a conflict may rely on media outlets to gain the upper hand, a legitimacy advantage or moral ground in a legalized form such as litigation or arbitration (e.g., the territorial dispute over the South China Sea), by portraying its action as just, rational and legal, and actions of the other side’s as illegal, inadequate, baseless or at fault. This type of warfare is equivalent to a battle of the minds and public propaganda campaign.

Information warfare has been used by the U.S. in a series of conflicts with other foreign nations. During the Cold War, the U.S. and the Soviet Union often used such information warfare to criticize and devalue each other’s commitments to international legal standards. In recent years, the U.S. has utilized information warfare against Afghanistan, Iran and ISIS, among others. The U.S.’ strategy is to engage the conflicting parties by publicizing adversary violations of international law, framing a narrative to support the legality of its own actions, and justifying its own policy choices or government behaviors including economic sanctions and military actions.

There is also a domestic dimension to information warfare. When it comes to controlling domestic information flow, China’s capability and power is superb, thanks to its intense Internet policing and surveillance technologies, networks and programs. During the recent U.S.-China technology competition, trade war, and pro-democracy movement in Hong Kong, China has swiftly and strongly adjusted the information imbalance in and outside China to further shape the domestic narrative and foster patriotism.

In the COVID-19 pandemic, the Twitter account of a spokesman of the PRC Ministry of Foreign Affairs openly and officially endorsed conspiracy theories linking origins of the novel coronavirus to the United States military. Despite scarce supporting information in international media outlets, different conspiracy theories spread rapidly within China, resulting in conflicts and significant cognitive biases in the information domain. Moreover, to the general public in China, Trump’s phrasing COVID-19 as the China or Wuhan Virus naturally appears to be clear evidence of racism and Western arrogance against China’s strong collective actions in the global campaign against coronavirus. By these means, the two sides tried to make use of this conspiracy to shift their liabilities internally and externally while the coronavirus pandemic is being escalated to global scale.

Legitimacy of Claims

The U.S. Foreign Sovereign Immunities Act of 1976 (“FSIA”) provides that foreign nations enjoy immunity from civil jurisdiction of U.S. courts, subject to certain enumerated exceptions. The Supreme Court made it clear that the FSIA provides the sole basis for obtaining civil jurisdiction over a foreign nation in U.S. courts, and provides a comprehensive set of legal standards governing claims of immunity from civil suit. These ongoing complaints allege that two exceptions apply: §1605(a)(2) for a commercial activity with a sufficient U.S. nexus, and §1605(a)(5) for a territorial tort. However, the complaints did not specify what relevant commercial activity any of the Chinese defendants engaged in, let alone how that activity has a sufficient U.S. nexus. Therefore, given the rigidity of such rules, these litigation cases against the Chinese government for the coronavirus spread cannot really achieve anything substantial on legal grounds.

China’s position on state immunity is an absolute one, meaning that it does not accept the jurisdiction of any foreign country’s court over it. Its overseas Embassies/Consulates and their diplomatic staff, and certain persons and entities, are immune from suit and enforcement, unless they waive immunity. In the past, attempts to file lawsuits in the U.S. against the Chinese government have usually failed and set the precedents that suing the Chinese government is not meaningful as a litigation tactic. Looking through databases of Chinese courts, the only notable claim against foreign countries, diplomatic entities or persons is a case where the International Committee of the Red Cross was sued for its non-performance of a lease between a Chinese citizen and its Regional Delegation for East Asia. The Chinese court’s position on this appears consistently clear that the absolute state immunity rule would be applied. Similarly, suing the U.S. government and its officials in a Chinese court, though new and perhaps the first time in this manner, may achieve nothing substantial as the procedure and the documentation requirements in these proceedings are extraordinarily burdensome, which effectively blocks such lawsuits.

Public Functionality of Private Litigations

It is uncommon to observe so many claims vindicating the same public international rights being rapidly filed within the first month of the COVID-19 outbreak. With very limited access to credible scientific findings and other types of evidence buried in tons of biased and fake news and “expert opinions”, almost all of these claims contain factual allegations directly based on news reports and media resources. In addition, private litigants in both countries have accused the other government of concealing and withholding important information concerning the diagnosis and progress of treatment for COVID-19. Particularly, in the complaint filed in the United States District Court of Nevada, Bella Vista LLC v. The PRC, [xv] in the Statement of Fact the plaintiff asserts that “the PRC and other Defendants, are part of a totalitarian governmental system. Part of this system involves exaggerating good news, while suppressing bad news.” “[T]hey engaged in a campaign of falsehoods, misinformation, cover-up and destruction of evidence.” In the complaint filed by the Wuhan litigant, the plaintiff asserted that the United States government and the CDC tried to withhold and cover-up information known by a small fraction of people inside the administration, by intentionally deceiving the public and calling the novel COVID-19 virus a “flu-like” disease, delaying the best timing in order to contain the infection and caused the international community to have underplayed the importance of quarantine and other social distancing measures.  Interestingly, both sides based their claims on the misinformation of the other side’s government.

In the U.S., filing these cases could generate publicity for plaintiff side firms as a strategy to attract clients. High profile cases help spread fame inside and outside of the legal profession enhancing the lawyer’s legal skills and expertise. More fundamentally, given the wide coverage of social media, litigation is also an effective means of political participation, a channel to express political opinion, to lead the public discourse and to guide social movement. Particularly, when such cases would not achieve any legal purposes, court rooms become a voicing platform, instead of a dispute settlement mechanism. Filing these cases, either against the U.S. government or the Chinese government, is a political process through which dissatisfaction and anger are communicated with and protested towards the official authorities. In addition, private litigation in these cases also allows the public to monitor official authorities which are then under more severe scrutiny. The government or officials are therefore under pressure to take some responsive measures to address public concerns. In this vein, private litigation develops an institutional form of accountability with public functionality. We may only know what the plaintiffs really want when social media such as blogs, social-networking services and online discussion fora, escalates the cases to national or international prominence.

In the Chinese context, the cases filed in the Chinese courts are also a means of political legitimization in the government-controlled official media, either through argument or by quoting elites. In so doing, the Chinese government may, to a certain extent, justify its slow and contradictory governmental actions in the early stage of COVID-19’s spread. This serves to glorify its quick top-down nation-wide response (e.g. lockdown of Wuhan) to the COVID-19 crisis, shaping a sharp contrast with the U.S. government’s much more ineffective and inadequate bottom-up approach to the same crisis as New York City became the new virus Epicenter, despite U.S.’s strong economy and unparalleled leading position in medical technologies.

In the current “attention economy” where information spreads fast and exponentially on social media, target-reading and “push notifications” allow people to be selectively exposed to only resources conforming to their own political ideologies. This one-sided exposure exacerbates biases in favor of any pre-disposed ideologies. At the same time, people who are extremely speculative and opportunist tend to utilize such exposures to maximize their economic benefits, political agenda and personal reputation. These attention seeking litigants are turning judicial fora into venues of public participation for a reconfigured social ordering. Therefore, the flourishing transnational public law litigation in the COVID-19 pandemic moment properly echoes and supports such theories.  We are living in a time when polarization and disagreement dominate media narratives, and the surge of transnational public law litigation is just another reflection in the legal space.

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*Carrie Shu Shang,  is an Assistant Professor of Business Law at California State Polytechnic University, Pomona. She obtained her J.D. from University of Southern California School of Law, and her B.A./B.S. (with High Honors) from University of California, Berkeley. She was a visiting research scholar at UC Berkeley Center for the Study of Law and Society (2016). She is admitted to the New York (2013) and California Bar (2020), and is qualified to practice law in the People’s Republic of China. She has received multiple research grants for her research from the Research Grant Council (Hong Kong), Ministry of Education of People’s Republic of China, and the British Council.

**Wei Shen is the KoGuan Distinguished Professor of Law, Shanghai Jiao Tong University Law School. Professor Shen is the former Dean of Shandong University Law School, China. Professor Shen is Global Professor of Law at New York University School of Law, L. Bates Lea Visiting Professor of Law at Michigan Law School, an associate member of the International Academy of Comparative Law (Académie international de droitcomparé), a member of Moody’s China Academic Advisory Panel, a member of Financial Markets Law Committee of G20 Steering Group, and an Honorary Fellow of Asian Institute of International Financial Law, University of Hong Kong, and has been included in Marquis Who’s Who (2011 onwards).