Several Legal Issues On Sino-us Dispute Ovel The Enforcement Provisions Of Trips Agreement

Intellectual property plays an important role in Sino-US relations, there has been three major intellectual property disputes since China launched it's open-up and reform policy, each of which is a setback for China. In 2007, six years after China joined the World Trade Organization, U.S. government filed the first WTO complaint on Sino-US intellectual property disputes, also known as the WT/DS362 dispute. It is also the first WTO complaint on measures affecting the protection and enforcement of intellectual property rights between developed countries and developing countries, and for the first time panel of Dispute Solution Body issued an opinion on Sino-US intellectual property disputes. Based on the history of Sino-US intellectual property disputes for over three decades, the WTO case strikes directly at the lack of effective enforcement in the protection of intellectual property rights, thus has a propounding meaning on Sino-US intellectual property relationship. All research of this article revolves around the WT/DS362 dispute.This essay proceeds as the follows:To have a comprehensive understanding of the case, the history of Sino-US intellectual property disputes is discussed as a background study. Sino-US intellectual property disputes have went through three phases, accordingly the phase when disputes generated, major disputes broke up and post-WTO disputes. Each phase begun with significant events such as the founding of Sino-US diplomatic relations, the launch of open-up and reform policy and the enjoyment of WTO membership. The lack of legal system protecting intellectual property rights, the deficiencies'in Intellectual Property Law and the lack of effective enforcement in the protection of intellectual property rights are core issues of the three phases respectively. In the end, Sino-US intellectual property disputes evolves as a futile circle of problems arise-disputes-reconciliation-problem arise again, and no fundamental solution has been reached.In Part 1 of this article I introduced the details and some scholars'opinions on the WTO case. There are three major litigant requests in this case:criminal thresholds. customs measures, and copyright law. Issues in dispute of criminal thresholds are the doctrine of Ordre Public, the explanation of the term of "on a commercial scale", the differences of criminal procedures between China and United States, and the misperformance of United States. Issues about customs measures are the meaning and logic between article 46 and article 59 of TRIPS agreement, and differences of customs measures between China and United States. Issues about copyright law are the meaning of copyright law, the effect of copyright law, and the doctrine of Ordre Public. The final ruling presents a partial victory for both sides.In Part 2,I brought to attention the methodology of WTO panel and the key issue of this case. On peripheral problems such as the founding of litigant requests, the confinement of DSB authority and the exercise of judicial economy, the panel showed an inward and self-strained attitude. On core issue of law explanation, the panel showed a strict followship of legal explanation rules of WTO through the explanation of the term "on a commercial scale". When reviewing evidence, the panel allocated burdern of proof in a traditional way and emphasized Prima Facie evidence rule. Both China and U.S. misperformed in evidence reviewing process. The fundamental dispute is the standard to assess the affect of the enforcement of intellcetual property law, yet the panel remained silence on this matter. It remains to be seen whether this standard will be set up since many pending questions still lie, such as whether DSB panel has the authority to explain enforcement standard, is TRIPS agreement intend to make this standard vague according to it's background, history and whole context?Part 3 focused on the effect of the enforcement of intellcetual property law. When United States brought up the WTO complaint, it was push by huge economic loss, the consistent policy of strict intellectual property protection, the necessity of periodical China policy, and the lobby of domestic interest group. Yet the deep drive is the lack of effective enforcement of intellcetual property law in China, of which rough technique in law drafting and loopholes in enforcement are the resentative problems. The comprehensive reason of ineffective enforcement invoves cultrual complexity, political will, development circumstances and conflicts beween different interest groups.In last part, I discussed the future of Sino-US intellectual property relationship. In general, disputes will still arise remittently, the leading form may become WTO complaint. And United States may persue a clear enforcement access standard under TRIPS agreenment, or even resort to TRIPS+standard. Various measures can be taken to avoid or settle the disputes. The first choice is to refine legal system and enhance enforment effects. A scientific monitering and appraisal system of intellectual property protection will help to reduce misunderstandings between China and United States. China should take more active attendence in future disputes, try to win WTO cases with the acknowledge of its own legal system. Also, China should seek more preferential treatments for developing countries. And in the end, the most effective solution is international cooperation and assistance.