1 MANY SYSTEMS, ONE OBJECTIVE 1.1 IPR owners in China have a choice of how to enforce their rights, through: 1.1.1 the People's Courts 1.1.2 criminal prosecutors or procuratorates 1.1.3 other administrative authorities with special responsibility for the IPRs in question 1.1.4 the Customs. 1.2 By the 1995 US-China Memorandum of Understanding (MOU'95), China has undertaken to put in place a further mechanism involving Enforcement Task Forces, representing a combination of the above elements, to enable a unified enforcement approach. The MOU requires a single contact name and number to be published for Task Forces in each major locality to which IPR proprietors can complain, following which enforcement action should follow without the need to identify the relevant administrative authority. 1.3 If the parties agree, the Chinese arbitration system can be used (eg. to resolve contractual/licensing disputes within China). Arbitration awards outside China are also enforceable through the Chinese courts if the requisite formalitIes of the New York Convention - to which China is a party - have been observed. 2 ARBITRARY JUSTICE? 2.1 China is widely perceived by those outside it to be a jurisdiction in which the Rule of Law is overshadowed by the Rule of Man. 2.2 However, the extensive powers accorded to the administrative authorities in China can mean that IPRs are enforced swiftly and at low cost. 2.3 The People's Courts are experimenting with specialist tribunals for dealing with IPR cases. An increasing number of court decisions involving local PRC entities are being reported. Where foreign entities are involved, increasingly harsh sanctions and compensation awards are being imposed. The court system should therefore not be overlooked as an effective means for securing redress. 2.4 Where administrative action is taken arbitrarily to enforce IPRs without sufficient basis, appeals may be lodged with a higher level of the relevant authority or with the People's Court. There is also a developing jurisprudence for Adminstrative Review which may be used to challenge administrative decisions which are not otherwise appealable. 2.5 In short, China's legal and administrative systems are responding to the demands of an increasingly free-market oriented "economy with Chinese socialist characteristics". When used in the right way, appropriate relief can in most cases be found. 1 May 1996 LINKLATERS & PAINES, HONG KONG OFFICE - Contact Partner Tom Hope Internet address - thope@landp.com Tel - 852 28424888 Fax - 852 28108133
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