Xie Chuanjiao of China Daily wrote the article International laws applied in local IPR cases, read here. Nothing new really, China has this obligation already since April 12, 1986 when it adopted its General Principles of Civil Law .
When China became the 143rd member of the WTO on December 11, 2001, it automatically entered into TRIPs, which is an integral aspect of the WTO agreement. The supremacy of international treaties concluded by or acceded to China which apply to law in civil relations with foreigners is dealt with by article 142 General Principles of Civil Law [1]. It states that where the provisions of TRIPs differ from those in civil laws of the PRC, the provisions of the international treaty shall prevail. Unless it would concern provisions for which China would have made reservations. This is conform Section 2 Vienna Convention on the Law of Treaties [2]. China did not make any such reservation. This means that a foreign plaintiff can cite TRIPs in a lawsuit against a Chinese entity if no domestic legal recourse were available, or if these were in conflict with provisions of TRIPs.
[1] Article 142 General Principles of Civil Law: (..) where the provisions of an international treaty which the PRC has concluded or acceded to differ from the civil laws of the PRC, the provisions of the international treaty shall prevail, with the exception of those articles to which the PRC has made a reservation. (..).
[2] Articles 19-23 Vienna Convention on the Law of Treaties
However, in the last part of the article Xie gave some statistics about the period 2002-2006:
- Chinese courts dealt with 931 IPR cases involving overseas parties, or a rise of 50 percent each year, according to Jiang Zhipei, chief justice of the Supreme People’s Court IPR Tribunal.
- Beijing No 1 Intermediate People’s Court alone ruled in favor of overseas parties in 60 percent of the 670 IPR cases.
