Tagged: china

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Cardozo Law Review, China Re-Rising

Symposium on China’s Transition from Manufacturing to Innovation Economy Hosted by Cardozo Law Review’s Online Journal

NEW YORK, NY, April 29, 2013 — All eyes are on China in the twenty-first century, as it emerges as one of the fastest growing economies in the world. At the same time, losses in various industries are attributed to piracy—a substantial amount of which is alleged to occur within China’s borders—and the Chinese government is routinely criticized for its weak enforcement measures against counterfeiting activities and intellectual property infringement on its soil.Cardozo Law Review de•novo’s online symposium, “China Re-Rising?: Innovation and Collaboration for a Successful Twenty-First Century” focuses  on China’s overall transition from a manufacturing to an innovation economy and how this transition affects IP policies and industries around the world.

The online symposium – located at http://cardozolawreview.com/de-novo-2013.html – features articles from practitioners, industry corporate counsel, professors, and Chinese IP law specialists. Esteemed participants include Chen Wang, the Deputy Chief IP Counsel of E.I. du Pont de Nemours Company; Jonathan Sallet, a Partner at O’Melveny & Myers LLP; and Professor Peter Yu, the Kern Family Chair in Intellectual Property Law and Director of the Intellectual Property Law Center at Drake University Law School.

About the Articles:

Professor Yu discusses the slowly-begun change in discourse around China’s intellectual property system, particularly in the field of patents. He presents the reader with five key questions on the state of Chinese intellectual property law and policy. His answers suggest that the future of China’s intellectual property system is dualistic and dynamic—while massive piracy and counterfeiting does continue, this ongoing issue is balanced by China’s rise as a patent power.

Professors Murphy and Orcutt discuss China’s patent subsidy program—an aspect of China’s national innovation strategy that aims to increase domestic patents and innovation through government subsidies to pay for domestic inventors’ legal costs associated with obtaining patents. Noting that the program has been criticized for failing to fund truly valuable or innovative patents, the Authors propose a unique two-stage, three-dimensional relative value technique for the Chinese government to implement in evaluating whether to fund a given patent application through the subsidy program.

Ms. Wang and Mr. Sallet in turn criticize the Chinese government’s metric-based approach to innovation. They posit that China’s emphasis on numerical goals to domestic patenting actually hampers Chinese innovation by directing resources away from research and the development of truly valuable inventions. The Authors further discuss how China’s metric-based approach frustrates the ability of multi-national corporations to collaborate effectively with Chinese companies. They conclude by identifying steps the Chinese government can take to increase local innovation through effective international collaboration.

Professor Shao calls for a holistic perspective of the Chinese innovation economy, law, and policies. His Article offers a historical and cultural perspective that aims to make a holistic approach possible for Western scholars and practitioners, who lack the knowledge of Chinese history and culture necessary to understand the context of China’s current policies. He concludes by proposing that innovation still can, and should, be the bridge to China’s successful economic transition.

Professors Murphree and Breznitz discuss China’s innovation strategy through the lens of its failed attempts to develop globally successful technology standards. The Authors attribute these failures to fragmented production and structured uncertainty implicit in the Chinese domestic market. Despite these failures, the Authors acknowledge that Chinese companies’ participation in even failed attempts does produce tangible benefits, like receiving lower royalty rates on goods they produced.

View the online symposium at http://cardozolawreview.com/de-novo-2013.html

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The Rule of Law with “Chinese Characteristics”

I spent last week in China leading a spring break trip for 38 of my current and former environmental law students. I had warned the group that they would be shocked by how polluted the air was and that tap water was not safe to drink even in the best hotels. But when we arrived in Beijing the skies were the clearest I had ever seen during my 21 previous trips to China (including the six months I lived in Beijing in 2008 while teaching at the China University of Political Science and Law (CUPL)). Alas, the clear skies were not the result of dramatic environmental improvements in China. Instead they were the product of 40-50 mph winds that temporarily had blown away the pollution, which soon returned.

On the morning of our first full day in China our initial stop was Tiananmen Square, site of the 1989 massacre of pro-democracy protesters. Our group was allowed to bypass the security screening that the Chinese public must undergo before entering the square. While posing for a group photo, I was surprised when a member of our group unveiled a large banner that read “Thank You, Suzann” to honor our program coordinator who helped organize the trip. Fearing that this was some kind of political protest, Chinese police immediately converged upon our group. Our local guide started shouting that we might get arrested. But the confrontation was averted when we rolled up the banner and the police accepted our explanation. But it was a quick reality check on the limits of free speech in China today.

During our nine days in China our group visited public interest groups, law firms, and law schools in addition to tourist sites in Beijing, X’ian and Shanghai. In our meetings with Chinese students, lawyers, and law professors the group gained some insights into what it is like to operate in a legal system without an independent judiciary or a tradition of respect for the rule of law. One lawyer at a Chinese law firm in Shanghai described it as “the rule of law with Chinese characteristics.”

The public interest movement in China remains deeply frustrated because Chinese courts frequently refuse to accept even the most meritorious lawsuits. I spoke about the BP oil spill settlement at a workshop organized by the All China Environment Federation (ACEF), a group of environmental lawyers founded in 2005. ACEF represents a group of 107 fishermen who were harmed by last summer’s ConocoPhillips oil spill in Bohai Bay. But the Tianjin Maritime Court has refused to accept their lawsuit. Our group also visited the Center for Legal Assistance to Pollution Victims (CLAPV), which operates a hotline to field environmental complaints from all over China.

Zhang Jingjing from the Public Interest Law Network’s Beijing office, who has been dubbed “the Erin Brockovich of China,” met with our group and expressed hope that the National People’s Congress eventually would adopt new legislation to facilitate public interest lawsuits. Our group also met with Zhenxi Zhong from Shanghai Root and Shoots, one of the few NGOs officially licensed by the Chinese government. Roots and Shoots, a group initially formed by Jane Goodall, is working in more than 200 schools in the Shanghai area to improve environmental education.

There are now more than 20,000 lawyers in Beijing and 14,000 in Shanghai. We visited a U.S. law firm’s Beijing office and a Chinese law firm’s Shanghai office where we had remarkably candid discussions of the challenges of legal practice in a country where politics trumps law. The U.S. law firm is not licensed to practice law in China so it hires Chinese law firms to implement its work product. It prefers to avoid the Chinese courts by using arbitration whenever it can. Aware of the Foreign Corrupt Practices Act, the U.S. lawyers have the Chinese law firms they hire sign non-corruption pledges.

The Chinese law firm in Shanghai hosted our group for its Friday afternoon discussion session. Their members explained that judges in China do not have to be lawyers and many of the most prominent judges are not lawyers, but rather were selected because of their strong ties to the Communist Party. Witnesses rarely come to court in China even when they are asked to do so. Disputes over siting new industrial plants usually are resolved not based on the law but on political power. Localities eager to attract industry make required environmental assessments a perfunctory exercise and local officials try to pressure lawyers not to bring environmental challenges. Siting decisions for power plants and new industries usually are made without consulting the public and there is little chance for lawyers to block them in court. When they are blocked, it invariably is due to the ability of opponents to generate sufficient public opposition to a project, rather than due to enforcement of the environmental laws.

There is some sense that change is in the air, a perception encouraged by China’s upcoming leadership transition and Premier Wen Jiabao’s public pleas for greater political and economic reform. The Chinese law students we met were hopeful that one day China will have an independent judiciary and strong respect for the rule of law. These students included moot court teams from CUPL and the Beijing Institute of Technology who did a practice round for us in advance of their coming to the U.S. to compete next weekend in the finals of the Stetson International Environmental Moot Court Competition.

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The PRC Celebrates Its 62nd Birthday

Seeing as I spend a great deal of time thinking, talking, and writing about China, it seems fitting that my first day guest blogging coincides with the National Day of the People’s Republic of China. The celebration got off to an early start with the launch of China’s first space lab module, called Heavenly Palace No. 1 (discussed here on New Yorker correspondent Evan Osnos’s excellent blog). Today, the festivities turned to Beijing where the leaders of the Communist Party of China (CPC) are celebrating 62 years of uninterrupted rule. As election season heats up here in the United States, the DNC and RNC understandably could be envious at the prospect of not having to deal with a multi-party system.

Although CPC rule has been consistent over six decades, the experience of the individual leaders in Zhongnanhai (the headquarters near Tiananmen Square in Beijing) has been much more complicated as they jockey for power behind the scenes. The public face is one of orderly transition on a periodic basis, as seen in the handing of power from the third-generation leaders (led by Jiang Zemin) to fourth-generation leaders in the early 2000s (led by Hu Jintao) and, as currently playing out, to the fifth-generation leaders. As was on display today, in public, the top guys (and they are all still guys) wear the same suits and even have near identical haircuts and hair-dye. Yet much speculation is afoot about the future composition of and hierarchy within the Politburo and, at the pinnacle of power, the Politburo Standing Committee.

Xi Jinping is the overwhelming frontrunner for the top post, with Li Keqiang looking to be in the number two spot. Interestingly, Li was one of the first students to study law at Peking University after schools reopened following the end of the Cultural Revolution. Li was never a practicing lawyer, but even having studied law sets him apart as unusual in China’s leadership. There’s been little indication that Li will be a champion of legal reforms once the leadership transition is complete. Nonetheless, his ascent raises questions whether people with legal backgrounds are poised to take a more conspicuous role in the Party/government.