Specialized IP Courts in China – Judicial Governance of Intellectual Property Rights

Abstract

At the end of 2014, China introduced new specialist intellectual property (IP) courts. Although China had IP tribunals within the People’s Courts, the reform to establish separate IP courts was touted as a significant step in establishing the rule of law in the governance of IPRs in China. This is not surprising considering that an independent judiciary is central to the rule of law. This institution affirms and enforces private rights, as well as providing necessary impartiality in the process of decision-making among peer institutions. China has recently undergone several legislative reforms which amend substantive IP law. It is not surprising that this was followed by both administrative and judicial reforms. Introducing a specialized court with exclusive jurisdiction will likely affect other institutions with similar competences, e.g. general courts or administrative tribunals. Institutional choices significantly affect the outcome of decision-making because the processes of decision-making differ and will involve different stakeholders. Often, institutions move together and a change in one of them is likely to cause a change in another, even without explicit efforts to effect such changes. Therefore, any institutional reform project needs to reflect measures to contain or coordinate unintended consequences or impacts on other institutions resulting from such changes. This paper places Chinese specialized courts in a global context. We will first describe the function of a specialized IP court from a comparative institutional perspective. Next, we place the Chinese specialized IP courts in the context of the national administration-driven IP strategy to highlight the Chinese characteristics. In its analysis, this paper explores whether the perspective of institutional comparison may be applied to Chinese institutional reforms. It also argues that the rationale for introducing specialized IP courts in China may be more than merely improving technological competence and concentration of expertise of the court; it signals a step towards independent judicial decision-making, towards the establishment of the rule of law and market-oriented decision-making.