Chinese Use of Administrative Proceedings to Enforce Intellectual Property Rights: Evaluating and Improving ADR in China

Authors

Simeng Han, Benjamin N. Cardozo School of Law

Abstract

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way of resolving disputes in China, particularly civil disputes, is through the use of informal methods such as mediation and adjudication.

Section II of this Note first surveys the basic Chinese legal structure and then investigates how the current Chinese approach to IPR protection, and of the ADR system in general, developed over time. The Section focuses on the unique use of the administrative review system for IPR protection. Section III goes on to analyze the advantages, as well as the problems of China's administrative review process as compared to the judicial litigation process. Finally, Section IV proposes that on balance, the unique advantages and cultural appropriateness of the administrative review process warrant its use in the Chinese IP enforcement system. Section IV also presents suggestions for improvement. Ultimately, this Note concludes that foreign companies doing business in China should strongly consider using these more informal forms of dispute resolution before going through the trouble and expense of litigation.

Disciplines

Comparative and Foreign Law | Constitutional Law | Criminal Law | Criminal Procedure | Dispute Resolution and Arbitration | Intellectual Property Law | Law | Law Enforcement and Corrections | Legal Remedies | Legislation

Recommended Citation

Simeng Han, Chinese Use of Administrative Proceedings to Enforce Intellectual Property Rights: Evaluating and Improving ADR in China, 14 Cardozo J. Conflict Resol. 195 (2012).
Available at: https://larc.cardozo.yu.edu/cjcr/vol14/iss1/9