1 MANY SYSTEMS, ONE OBJECTIVE
1.1 IPR owners in China have a choice of how to enforce their
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
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
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
1 May 1996
LINKLATERS & PAINES, HONG KONG OFFICE - Contact Partner Tom Hope
Internet address - firstname.lastname@example.org
Tel - 852 28424888
Fax - 852 28108133
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