Administrative Dispute Resolution in China
Q: Administrative Dispute Resolution in China: Review or Litigation?
A: Many administrative disputes shall be submitted to administrative review organ for first attempt to get settlement. The party which is unsatisfied with the result of the review can bring the dispute to court. Foreign enterprises and their lawyers often consider how to weigh different dispute resolution methods such as mediation, arbitration and litigation to better protect their interests in China. They seem to have little understanding of other important options such as administrative review and administrative litigation.
Q: How to draft Non Disclosure Agreement with Chinese counter-party
A: If a legally effective judgment or written order made by a foreign court requires recognition and enforcement by a court in China o, the party concerned may directly apply for recognition and enforcement to the intermediate court of which has jurisdiction. The foreign court may also, in accordance with the provisions of the international treaties concluded or acceded to by that foreign country and China or with the principle of reciprocity, request recognition and enforcement by a Chinese court. In the case of an application or request for recognition and enforcement of a legally effective judgment or written order of a foreign court, the Chinese court shall, after examining it in accordance with the international treaties concluded or acceded to by the China or with the principle of reciprocity and arriving at the conclusion that it does not contradict the basic principles of the law of China nor violates State sovereignty, security and social and public interest of the country, recognize the validity of the judgment or written order, and, if required, issue a writ of execution to enforce it in accordance with the relevant provisions of this Law. if the application or request contradicts the basic principles of the law of China or violates State sovereignty, security and social and public interest of the country, the Chinese court shall not recognize and enforce it.
Most of the Non Disclosure Agreements that have been used “conveniently” by American companies with their potential Chinese counter-parties are defective, usually terminally so. One of the things that most frequently makes them defective is that they call for disputes to be resolved in the United States. The problem with that is that Chinese courts do not enforce US court judgments and so even if the American company were to prevail in the United States, they typically have no recourse against the Chinese company unless the Chinese company has assets in the United States. Knowing this, the Chinese company feels free to violate the NDA with impunity.
Q: 2011 China Annual Report on Intellectual Property Cases (Abstract)
A: The Supreme People’s Court has, from among the intellectual property cases it concluded in 2011, derived 44 law application issues with general guiding significance from 34 carefully selected typical cases to prepare and issue this year’s report. The annual reports on intellectual property cases regularly published each year have become an important medium for the Supreme People’s Court to guide intellectual property trial work and an important channel for the public to understand the developments in the Supreme People’s Court’s intellectual property trials, and have increasingly received the general attention of the public and been accorded high importance by relevant parties. The function and significance of the annual case reports in clarifying legal rules, guiding trial practice and giving uniformity to application of the law are ever increasing.
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