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Impartial resolution of disputes in China : an intellectual property perspective Zhang, Yulin 2016

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  IMPARTIAL RESOLUTION OF DISPUTES IN CHINA: AN INTELLECTUAL PROPERTY RIGHTS PERSPECTIVE  by  YULIN ZHANG BA, Peking University, 1987 LLB, Peking University, 1987 LLM, The University of British Columbia, Vancouver, 1994   A DISSERTATION SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY  in  THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES  (Law)  THE UNIVERSITY OF BRITISH COLUMBIA  (Vancouver)  July 2016  © Yulin Zhang, 2016 	   ii Abstract Impartial resolution of disputes puts an end to disputes, minding members of society to respect the rule of law and good social order. Civil disputes occur quite naturally between two or more persons. Such disputes can be resolved through third persons, be they judges, arbitrators or mediators. Independence and impartiality of such third persons are the corner stones for the dispute resolution system in modern society. The concept of independence and impartiality may, however, vary in different countries.  The dissertation examines whether judicial impartiality is different in the current “independent trial” mode in China. Given differences in culture, legal theory and philosophy, judicial impartiality has different dimensions in countries with different systems of law, whether common law or civil law.  The study is conducted through the lens of civil cases involving intellectual property rights (IPRs). Criminal cases are not part of the study. Through comparative case study and media review, the dissertation concludes that differences lie in the standards for impartiality in the corrective justice system in China.   Drawing on Canadian case law, traditional philosophy and IPR case studies in China, the dissertation explores the building blocks of judicial impartiality and identifies four standards for judicial impartiality: avoiding conflict of interests, procedural due process, substantive justice and consensus-based impartiality, in addition to the “time” element of impartiality. Despite the differences, observable similarities in the dimensions of judicial impartiality exist in the dispute resolution processes. 	   iii  Based on the findings, I argue that impartiality as well as IPR protection should be raised to the Constitutional level in China. International high standards for impartiality ought to be adopted, while Confucian teachings can be gradually upgraded to fit with equality-based justice administration in the on-going judicial reform in China. With the study of the legal reasoning of judgments in IPR cases, I offer perspectives to illustrate the need to uphold judicial impartiality as a system requirement. I contribute to the contextualized interpretation of judicial independence for the rule of law in China and contribute to the standard building for judicial impartiality in connection with administration of justice in China. 	   iv  Preface  When the Master went inside the Grand Temple, he asked questions about everything. Someone remarked, ‘who said that the son of the man from Tsou understood the rites? When he went inside the Grand Temple, he asked questions about everything.’  The Master, on hearing of this, said, ‘The asking of questions is in itself the correct rite.’1  The research started with the field of intellectual property law and enforcement. Various questions were raised and considered regarding enforcement of IPRs in China, including institutional independence of decision makers. The dissertation question was ultimately framed, following numerous meetings and discussions, collectively as well as individually, with Professor Pitman Potter, Professor Joost Blom and Professor Ilan Vertinsky, who serve on the supervisory committee of the dissertation, and after many rounds of emails and comments on the draft proposal of dissertation and draft chapters.   I primarily attempt to address two related but divergent subjects, judicial independence and intellectual property enforcement, in search for the impartiality theme. Through a micro view of the disputants in an identifiable two-party dispute setting in IP disputes and various case studies and media review, the dissertation examines the question whether impartiality is different in the current “independent trial” system in China.  The thesis aims to make contributions to the contextualized and cultural                                                 1     Confucius, The Analects, translated with an introduction by D.C. Lau, London: Penguin, 1979, Book III, 15. 	   v interpretation of judicial independence and impartiality from Chinese adjudication work of civil cases involving IPRs. Criminal law is beyond the scope of the study. Through theory study, case analysis and media review, I contribute to the understanding of the concept of impartiality from legal theory and Chinese Confucian perspectives, and analyze the “independent trial” mode from Chinese practice, particularly with respect to the courts’ recently obtained authority to conduct judicial review of the administrative decisions made by the government agencies in IPR cases. Drawing on Canadian case law and the reasoned judgments in IPR cases in China, I analyze the various dimensions of judicial impartiality regarding dispute resolution in the Chinese context and identify that impartiality has the third dimension (i.e., substantive justice) and the fourth dimension (i.e., consensus-based impartiality) in dispute resolution, in addition to the procedural and ethical or behavioral dimensions that commonly apply to litigation and arbitration proceedings. I also argue that impartiality has a “time element” as far as judicial impartiality in concrete civil cases is concerned.  This dissertation is an original, unpublished and independent work by the author Jerry Yulin Zhang. The study of impartiality in dispute resolution provides a glimpse into the efforts made so far and the political will needed from governance leaders to place on judicial independence and impartiality in connection with its “rule of law” project, as they are so called for by the system of justice administration in civil society from ancient times. 	   vi     Table of Contents Abstract....................................................................................................................................... ii	  Preface........................................................................................................................................ iv	  Table	  of	  Contents ....................................................................................................................vi	  List	  of	  Abbreviations .............................................................................................................. x	  Table	  of	  Cases..........................................................................................................................xii	  Acknowledgements..............................................................................................................xvi	  Introduction .............................................................................................................................. 1	  1.	   The	  Question.............................................................................................................................. 3	  2.	   Aim	  of	  the	  Dissertation........................................................................................................... 6	  3.	   Chapters....................................................................................................................................... 9	  Part	  1	  	   General	  Principles............................................................................................... 15	  Chapter	  I:	  Law	  and	  Impartiality....................................................................................... 17	  1.	   Law ..............................................................................................................................................17	  (1)	  Law	  as	  a	  System	  of	  Rules................................................................................................................... 18	  (2)	  Inner	  Morality	  of	  Law ......................................................................................................................... 19	  (3)	  Law,	  Policy	  and	  Ideology ................................................................................................................... 20	  2.	   Justice .........................................................................................................................................24	  (1)	  Due	  Process	  and	  Integrity................................................................................................................. 25	  (2)	  Common	  Sense	  Justice........................................................................................................................ 27	  (3)	  Perceived	  or	  Real	  Bias ........................................................................................................................ 28	  3.	   Impartiality ..............................................................................................................................31	  (1)	  Impartiality	  as	  Attitude...................................................................................................................... 31	  (2)	  Impartiality	  as	  a	  Spectator................................................................................................................ 32	  (3)	  Impartiality	  as	  a	  Balance	  in	  an	  Identifiable	  Two-­‐Party	  Dispute ...................................... 35	  (4)	  Impartiality	  as	  Mutual	  Advantage ................................................................................................. 37	  (5)	  Impartiality	  as	  Public	  Duty............................................................................................................... 39	  (6)	  Impartiality	  as	  Judicial	  Presumption ........................................................................................... 41	  a)	   First	  Dimension	  –	  Nature	  of	  Relationship................................................................................ 42	  b)	   Second	  Dimension	  	  -­‐	  Conduct	  of	  Proceedings........................................................................ 43	  4.	   Transcending	  the	  Confucian	  Value...................................................................................46	  (1)	  Hold	  Thou	  Truly	  in	  the	  Middle	  Way ............................................................................................. 47	  (2)	  Doctrine	  of	  the	  Mean........................................................................................................................... 48	  (3)	  “Time”	  Element	  of	  Impartiality....................................................................................................... 49	  Chapter	  II.	  Why	  Impartiality	  Matters	  in	  IPR	  Field? ................................................... 52	  1.	   Corrective	  Justice ...................................................................................................................53	  	   vii (1)	  Proof	  of	  Infringement	  or	  Harm....................................................................................................... 53	  (2)	  Equality	  under	  Law.............................................................................................................................. 58	  2.	   Respecting	  the	  Intangible	  Value	  in	  IP..............................................................................62	  (1)	  Capital	  Investment	  to	  Be	  Protected	  Impartially...................................................................... 62	  (2)	  Seeing	  the	  Trees	  as	  well	  as	  the	  Forest ......................................................................................... 68	  a)	  Costs	  of	  Formation	  of	  Intellectual	  Property................................................................................ 70	  b)	  Trademark	  and	  Transaction	  Cost.................................................................................................... 72	  c)	  Copyright	  and	  Associated	  Costs	  and	  Interests ........................................................................... 73	  (3)	  Seeing	  the	  Two	  Identifiable	  Disputants	  Properly?................................................................. 74	  (4)	  Seeing	  the	  Value	  in	  Use	  of	  Intellectual	  Property..................................................................... 77	  3.	   Strengthening	  Protection	  of	  Private	  Property .............................................................80	  (1)	  A	  Territorially	  Based	  Property ....................................................................................................... 80	  (2)	  Facilitating	  Global	  Flow	  of	  IPR........................................................................................................ 82	  4.	   Raising	  the	  Bar	  to	  Constitutional	  Level...........................................................................86	  (1)	  Updating	  Constitutional	  Standards............................................................................................... 86	  (2)	  Making	  an	  Express	  Constitutional	  Commitment .................................................................... 87	  Chapter	  III.	  	  Does	  “Independent	  Trial”	  Hold	  the	  Standards	  for	  Impartiality?............90	  1.	   Trial	  Processes ........................................................................................................................90	  (1)	  Adversarial	  Process ............................................................................................................................. 91	  (2)	  Inquisitorial	  Process ........................................................................................................................... 93	  (3)	  Features	  of	  Chinese	  Trial	  Process ................................................................................................. 98	  a)	  Appropriate	  Disclosures ....................................................................................................................100	  b)	  Mobility .....................................................................................................................................................104	  2.	   Is	  Judicial	  Impartiality	  Different? .................................................................................. 106	  (1)	  Definition................................................................................................................................................107	  (2)	  Goal	  of	  Judicial	  Independence.......................................................................................................109	  (3)	  IP	  Courts .................................................................................................................................................111	  3.	   Fencing	  Non-­Judicial	  Influences	  Under	  “Independent	  Trial”	  Mode ................... 114	  (1)	  Political	  Influences .............................................................................................................................116	  (2)	  Influences	  from	  the	  Legislature....................................................................................................119	  (3)	  Government	  Agencies’	  Influences ...............................................................................................122	  4.	   Controlling	  Non-­Judicial	  Influences	  Internally ......................................................... 124	  (1)	  Collegiate	  Bench..................................................................................................................................126	  (2)	  Adjudication	  Committee..................................................................................................................127	  3)	  Professionalism .....................................................................................................................................132	  a)	  Fidelity	  to	  the	  Law................................................................................................................................133	  b)	  Element	  of	  Collectivity .......................................................................................................................134	  c)	  Judge’s	  Image ..........................................................................................................................................136	  5.	   Can	  Justice	  Be	  Achievable	  in	  Each	  Case?...................................................................... 138	  (1)	  The	  Function	  of	  Judging...................................................................................................................138	  (2)	  Majority	  Decisions..............................................................................................................................142	  (3)	  A	  Third	  Dimension	  of	  Impartiality	  –	  Substantive	  Justice ..................................................143	  Part	  2	  	  	   Practical	  Considerations................................................................................154	  Chapter	  IV:	  	  Impartial	  Enforcement	  of	  Intellectual	  Property	  Rights.................156	  1.	   The	  Dispute	  Context ........................................................................................................... 158	  (1)	  Awareness	  of	  Rights ..........................................................................................................................158	  (2)	  The	  Disputants.....................................................................................................................................161	  (3)	  Case	  Studies ..........................................................................................................................................167	  2.	   Non-­Judicial	  Procedures ................................................................................................... 172	  	   viii (1)	  Administrative	  Protection	  of	  Patent...........................................................................................173	  (2)	  Customs	  Recordation	  and	  IPR	  Protection................................................................................175	  (3)	  Administration	  for	  Industry	  and	  Commerce	  (AIC) ..............................................................177	  (4)	  National	  Copyright	  Administration	  (NCA) ..............................................................................178	  (5)	  Piecemeal	  Mode	  of	  Administrative	  Enforcement .................................................................178	  3.	   Judicial	  Procedure	  of	  Impartial	  Enforcement............................................................ 185	  (1)	  Litigation	  Process	  to	  Enforce	  IPR ................................................................................................187	  (2)	  Jurisdiction ............................................................................................................................................189	  (3)	  No	  Conflict	  of	  Interest.......................................................................................................................190	  (4)	  At	  the	  Trial .............................................................................................................................................193	  (5)	  Judge's	  Role	  at	  Hearing ....................................................................................................................194	  (6)	  Legal	  Reasoning	  in	  Judgments ......................................................................................................195	  a)	  Case	  Studies.............................................................................................................................................196	  (7)	  Appellate	  Jurisdiction .......................................................................................................................203	  a)	  	  Case	  Studies............................................................................................................................................205	  b)	  Legal	  and	  Practical	  Reasoning ........................................................................................................216	  4.	   Judicial	  Review/Administrative	  Litigation................................................................. 229	  (1)	  Factors	  Reviewed ...............................................................................................................................234	  Patent	  Case	  -­‐	  Shanghai	  Quanneng	  Trading	  Co.,	  Ltd.	  v.	  Shanghai	  Intellectual	  Property	  Administration ............................................................................................................................................234	  (2)	  Supervisory	  Authority ......................................................................................................................236	  Marlboro	  Case	  -­‐	  Philip	  Morris	  Products	  Co.	  Ltd.	  v.	  Trademark	  Review	  and	  Adjudication	  Board	  of	  the	  State	  Administration	  of	  Industry	  and	  Commerce..............................................236	  (3)	  Procedural	  Defects .............................................................................................................................237	  (4)	  Seeking	  Substantive	  Fairness ........................................................................................................243	  Wahaha	  Case	  –	  Wahaha	  Corporation	  v.	  Zhonglong	  Co.,	  Ltd. ...................................................243	  5.	   Challenges	  of	  Impartial	  Trial........................................................................................... 248	  (1)	  External	  Influences ............................................................................................................................248	  (2)	  Grounds	  for	  the	  Existing	  Problems.............................................................................................250	  (3)	  Measures	  to	  Buttress	  Impartiality ..............................................................................................252	  6.	   Proposed	  Judicial	  Reforms............................................................................................... 255	  (1)	  The	  Fourth	  Five	  Year	  Reform	  Outline	  for	  the	  Judiciary .....................................................257	  Chapter	  V.	  Arbitrating	  International	  Intellectual	  Property	  Disputes	  Impartially ............................................................................................................................263	  1.	   Contractual	  and	  Non-­Contractual	  Disputes................................................................ 264	  (1)	  Rights	  for	  Consensual	  Arbitration...............................................................................................264	  (2)	  Defensive	  Function ............................................................................................................................265	  2.	   Arbitral	  Remedies ............................................................................................................... 266	  (1)	  As	  a	  Contractual	  Matter ...................................................................................................................267	  (2)	  Assertion	  of	  IP	  Right..........................................................................................................................268	  (3)	  Cessation	  of	  Wrong ............................................................................................................................269	  (4)	  Emergency	  Arbitration	  Rules ........................................................................................................269	  3.	   Compartmentalized	  National	  Laws ............................................................................... 273	  (1)	  Investment	  Flowing	  in	  Cross	  Border	  IP ....................................................................................273	  (2)	  Arbitrability	  Subject	  to	  National	  Laws ......................................................................................275	  (3)	  Rational	  Reasoning	  of	  Arbitral	  Awards.....................................................................................278	  (4)	  Defense	  against	  Enforcement	  of	  Arbitral	  Awards	  Involving	  IPR...................................281	  4.	   Impartiality	  in	  International	  Arbitration ................................................................... 287	  (1)	  Standard	  of	  Impartiality ..................................................................................................................287	  	   ix (2)	  Procedural	  Impartiality ...................................................................................................................290	  (3)	  UNCITRAL	  Model	  Law ......................................................................................................................291	  (4)	  Apprehension	  of	  Bias	  in	  Canadian	  Common	  Law.................................................................294	  (5)	  IBA	  Guidelines......................................................................................................................................295	  5.	   New	  Challenges .................................................................................................................... 296	  (1)	  Limit	  of	  Scrutiny	  Review .................................................................................................................296	  (2)	  The	  Professional	  Autonomy	  of	  Arbitrators .............................................................................297	  (3)	  Ad	  hoc	  Arbitration..............................................................................................................................298	  (4)	  Claims	  Framed	  in	  IP	  Rights	  Against	  the	  State	  in	  Investment	  Disputes .......................301	  Chapter	  VI:	  Mediating	  IP	  Disputes	  Impartially.........................................................308	  1.	   Settlement	  in	  Mediation	  Process ................................................................................... 308	  (1)	  Confidentiality......................................................................................................................................309	  (2)	  A	  Fourth	  Dimension	  –	  Consensus-­‐Based	  Impartiality........................................................310	  2.	   Mediation	  Practice	  in	  China............................................................................................. 314	  (1)	  People’s	  Mediation	  Committee .....................................................................................................314	  (2)	  Principles	  of	  Mediation ....................................................................................................................315	  3.	   Mediation	  Agreement ........................................................................................................ 317	  4.	   Case	  Studies........................................................................................................................... 320	  (1)	  Consensus	  Reached	  Is	  Consensus	  Long ....................................................................................320	  Yang	  Peikang	  v.	  Wuxi	  Huoli	  Healthcare	  Products	  Co.,	  Ltd.	   .....................................................320	  (2)	  Mutual	  Agreement..............................................................................................................................322	  Apple’s	  “iPad”	  Trademark	  Case	  Mediated.......................................................................................322	  Chapter	  VII:	  Conclusion ....................................................................................................326	  Attachments .........................................................................................................................341	  1.	   Methodologies ...................................................................................................................... 341	  Textual	  Analysis..........................................................................................................................................341	  Comparative	  Study ....................................................................................................................................341	  Media	  Review...............................................................................................................................................342	  Chinese	  Court	  Case	  Study .......................................................................................................................342	  2.	   Statement	  of	  the	  Selection	  of	  Cases ............................................................................... 346	  References.............................................................................................................................350	      	   x List of Abbreviations  AIC  Administration for Industry and Commerce ALL  Administrative Litigation Law BPC  Basic People’s Court CCP  Chinese Communist Party CCTLD country-code Top Level Domain CIETAC China International Economic and Trade Arbitration Commission CSRC  China Securities Regulatory Commission FDI  Foreign Direct Investment FIEs  Foreign Investment Enterprises GPCL   General Principles of Civil Law GAC  General Administration of Customs HKIAC Hong Kong International Arbitration Centre HPC   Higher Level People’s Court ICC  International Chamber of Commerce IPC  Intermediate Level People’s Court JVs     Joint Ventures MOJ  Ministry of Justice NCA  National Copyright Administration NPC  National People’s Congress PRC   People’s Republic of China SAIC  State Administration for Industry and Commerce 	   xi SIPO  State Intellectual Property Office SOEs   State-Owned enterprises SPC  Supreme People’s Court TRIPS   Agreement on Trade Related Aspects of Intellectual Property Rights TSB  Technical Supervision Bureau UN  United Nations WIPO  World Intellectual Property Office WTO  World Trade Organization    	   xii Table of Cases  Canadian Cases  0927613 B.C. Ltd. v. 0941187 B.C. Ltd. 2015 BCCA 457  Bizon v Bizon, 2014 ABCA 174  Baschet v. London Illustrated Standards, [1900] 1 Ch. 73   Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2  Committee for Justice v. National Energy Board, [1997] 1 S.C.R. 369   Ely Lilly and Company v. Government of Canada (2012)  Haida Nation v. British Columbia (Ministry of Forests) [2004] 3 SCR 511, Canlii SCC 73.  Harvard College v. Canada (Commissioner of Patents), 2002 S.C.C 76 (CanLII)  Ke-Kin-Is-Uqs v. British Columbia (Ministry of Forests) 2008 BCSC, 1505.  	   xiii Microsoft Corporation v. PC Village Co., Ltd. 2009 FC 401   RJR-MacDonald Inc v. Canada (Attorney General), [1994], 1 S.C.R., 311  Target Brands, Inc. v. Fairweather Ltd., 2011 CarswellNat 2334, 2011 FC 758 (F.C.)   Telsat Canada v. Boeing Satellite Systems International, Inc. 2010 ONSC, 4023  R. v. Valente, [1985] S.C.J. No. 77, [1985] 2 S.C.R. 673  Chinese Cases  China Unicom Company Qingdao Branch and Qingdao Aoshang Network Company v. Baidu Netcom Company, 2010, Shandong Higher People’s Court  Eastman Kodak Company v. Ke Da Elevator Co., Ltd., 2008, Suzhou Intermediate People’s Court  Eli Lilly and Company et al v. Huang Mengwei, 2013, Shanghai No. 1 Intermediate People’s Court  Kao v. Mercedes-Benz (China) Ltd., 2014, Beijing No. 3 Intermediate People’s Court  	   xiv Guangzhou Jinbaili Health Care Products Co. Ltd v. TRAB and Heng Tai Global (Focus Group) Co., Ltd.   Guizhou Honglicheng Real Estate Development Co. Ltd. v TRAB and Shenyin Wanguo Securities Joint Stock Company, 2012, Beijing Higher People’s Court  Linqing Auto Repair Factory v. Beijing Youth Economic Development Corp. 1987, Beijing Dongcheng District People’s Court  Microsoft Corporation v. Dazhong Insurance Co., Ltd., 2009, Shanghai Pudong New District People’s Court   Philip Morris Products Co. Ltd. v. Trademark Review and Adjudication Board of the State Administration of Industry and Commerce, 2012, Beijing No. 1 Intermediate People’s Court   Ping An Life Insurance Company of China and Ping An Insurance (Group) Company of China Ltd. v. Kingdom of Belgium  Shanghai Quanneng Trading Co., Ltd. v. Shanghai Intellectual Property Administration, 2010, Shanghai Higher People’s Court  	   xv Shihlin Electric Corporation v. TRAB and Zhenjiang Shihlin Electric Co., Ltd  Starbucks Corporation v. Shanghai Starbuck Cafe Company, 2007, Shanghai Higher People’s Court  Wahaha Corporation v. Zhonglong Co., Ltd., 2012, Beijing Higher People’s Court  Wu Guanzhong v. Shanghai Yunduoxuan & Hong Kong Yongcheng Auction Company, 1996, Shanghai Higher People’s Court   Yahoo Corporation v. Wahoo Co., Ltd., 2011, Beijing Higher People’s Court 	   xvi Acknowledgements  I would like to thank Professor Pitman B. Potter for agreeing to continue to be my supervisor from LLM to the present PhD program after a long expanse of time in between, and for his strenuous and professional guidance over the course of the dissertation. His classic scholarship sharpens the thinking necessary for the thesis. Likewise, I thank Professor Joost Blom Q.C. for his teachings in Canadian intellectual property law, and strict supervisory feedback over my dissertation work. I thank Professor Ilan Vertinsky for his business and cultural perspectives that blend the road with color and space.  I am thankful to many friends and colleagues whose names have propelled me to carry on the work while on the journey. I would like to express my sincere thanks to Michael J. Moser, Sally Harpole, Stephan Toope, Mary Anne Bobinski, Fei He, Xinguang Cao, Loke-Khoon Tan, Emma Cunliffe, Douglas Harris, Benjamin Richardson, Ljiljana Biukovic, Michelle LeBaron, Ning Fei, Song Huang, Junfeng Wang, Jianlong Yu, James Luo, Cecilia Rui, Ishara Quan, Joanne Chung, Calvin Jang, and Anna Lund. Thanks to UBC libraries and staff. I marble the help from Thomas Manson Q.C. and his wife Bo Liu with high respect and deep gratitude, as they encourage me constantly to see bridges having mutually supported bases.  This work is sincerely dedicated to UBC as a place of mind on the road of learning. I could not start the learning journey without the financial assistance from UBC 	   xvii from the very beginning, for which I am immensely indebted. Financial support from the Allard School of Law, the Law Foundation of BC and continuing support from the Faculty of Graduate and Postdoctoral Studies are very much appreciated.  I would like to acknowledge special thanks to my wife Hong Yu, my family and extended family, and my son Richard Muolong Zhang for their constant feedback of understanding, affection and support in many ways, without which the work can hardly be completed.  Words have limitations when we express what we feel about things. What we feel comes from all senses but words only from the language(s) we speak. To those who are not named here but have given me support on my road, I extend my heartfelt thanks.   	   1 Introduction  This dissertation goes to the heart of dispute resolution in China. It targets the concept of independence and impartiality of decision-makers in the adjudication of disputes, including arbitrators, judges and other persons in the adjudicating role in China. I attempt to use the civil case of intellectual property disputes as the lens and field of the study. Criminal cases are beyond the scope of this study.   The aim of the dissertation is to explain how IPR dispute resolution reflects the influence of local legal culture on judicial impartiality and independence in China. In commercial dispute resolution, whether in litigation, arbitration or other proceedings, the first principle that should be observed is the principle of independence and impartiality of the decision-makers.  The topic is often debated in the context of judicial reform in China, particularly with regard to independent trials with the courts in China.  Chinese society is improving by way of adapting new knowledge and ideas from outside China2 combined with transformation of its own legal and cultural texture.3 “Man is born free, and yet he is everywhere in chains”4. Chinese people are currently experiencing in varied degrees the “chains”, and working towards an orderly society governed under a system of rules. 5                                                 2   See the concept of selective adaptation, in Pitman B. Potter and Ljiljana Biukovic, Globalization and Selective Adaptation, UBC Press, 2010, p. 10. 3   For evolutionary changes of public policy including fundamental moral and social views, please see Joost Blom, “Public Policy in Private International Law and its Evolution in Time”, Netherlands International Law Review, 12/2003, Vol. 50, Issue 3, pp.373-399. 4   Jean-Jacques Rousseau, The Social Contract, Translated by Maurice Cranston, London: Penguin, 1968, p. 1. 5   See generally, H.L.A. Hart, The Concept of Law, Oxford: The Clarendon Press, 1961. 	   2  Justice and impartiality are two pillars of modern society that will prove to be of value to the creation and construction of primary order of the Chinese society, with reference to traditional Confucius value and modern concept of rule of law. 6   Chinese traditional attitude towards knowledge is being honest with ourselves. “To say you know when you know, and to say you do not when you do not, that is knowledge”.7  Knowledge about justice of civil society is dauntingly lacking in the society, since traditional collectivism prevents individualistic behavior in dealing with justice concerns, such as filing a legal complaint or initiating legal proceedings individually.   The dispute resolution process has positive roles for the orderly structure and peaceful growth of society, although it requires the individual disputant to take an autonomous role to initiate and proceed with certain required actions according to the civil legal process, until the dispute is resolved and order is maintained. The model of litigation and arbitration process for dispute resolution incurs time, costs and efforts at the level of the disputants, but it saves the social costs or damages that would likely result by pursuing “class struggle” or “violence-based” theory for societal growth. Building a modern justice system requires clear-cut philosophical update of the various guiding political and legal theories in contemporary China.                                                  6   The Deng Xiaoping’s famous slogan “Crossing the river by groping the stones” (摸着石头过河) vividly shows that the stones in the river are important for one to cross the river.  Per public source, Chen Yun first said this on April 7, 1950 at the 27th State Council Meeting in the context of stable commodity price. See Han Dayuan, “Better to Cross the River by Groping the Constitution Than the Stones” (摸着石头过河不如摸着宪法过河), Financial Journal (财经) April 2016.  7   Confucius, The Analects, II, 17, supra footnote 1. 	   3  Given the de-facto interdependence of the Party and the rule of law in the ordinary course of adjudication business,8 the dissertation lays emphasis on the reasoned judgments in the case studies in the IPR field to demonstrate that impartiality is what justice innately requires in providing an unbiased, non-partisan and fair resolution of the disputes for the modern society. The goal for rule of law in China, with good governance under good law9, requires the nation to set the norms and standards high for independence, impartiality and accountability of adjudicators. Personal and private connections or other relation of interest between the adjudicators and the parties perplexes the adjudication process in traditional understanding, and destroys the concept of independence.10    1. The Question  In the arbitration practice of China International Economic and Trade Arbitration Commission (CIETAC) or the Hong Kong International Arbitration Centre (HKIAC), arbitrators are asked to respond to the question: Are you in a position to act independently and impartially as between the parties, at the time when they are appointed                                                 8   “The most celebrated definition of rule of law is the one formulated by the English jurist A.V. Dicey in the late 1800s. According to Dicey, at its core the rule of law requires that ‘no man is punishable, or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land’”. See Yuan Yuan Shen, “Conceptions and Receptions of Legality Understanding the Complexity of Law Reform in Modern China”, in Karen G. Turner, et al, eds., The Limits of the Rule of Law in China, infra footnote 9, p. 28, footnote 34 (quoting A.V. Dicey, Introduction to the Study of the Law of the Constitution, London: Macmillan, 1885). 9    See Wang Liming, FA ZHI, Liangfa Yu Shanzhi [Rule of Law, Good Law and Good Governance], Peking University Press, 2015, p. 1. For a comprehensive view of the study of Chinese law in the West, see William P. Alford, “Law, Law, What Law? Why Western Scholars of China Have Not Had More to Say about Its Law” in Kren G Turner, James V. Feinerman and R. Kent Guy eds., The Limits of the Rule of Law in China, University of Washington Press, Seattle and London, 2000, pp. 45-64.  10    Chinese adage: Impartial judge cannot decide his or her own family matters. Qingguan Nanduan Jiawu Shi [清官难断家务事] This mirrors the English customary rule that a person cannot be judge of its own affairs. The aphorism is used in Lu Lin Wai Shi [儒林外史]. See Chinese Chengyu Zidian at http://www.zdic.net/c/5/111/299609.htm.     	   4 as arbitrators?11 As a practical matter, one will need to consider the relationship of the arbitrator and the parties and whether there are any circumstances that might lead to justifiable doubts regarding the independence and impartiality of the arbitrator. In legal theory in relation to why this question is posed at the time of appointment of adjudicators in dispute resolution proceedings, one would need to ask what impartiality inherently means in the administration of justice in present China. As my research interest is in intellectual property law, the question for the dissertation is this: is impartiality different in the current “independent trial” system for protection of intellectual property rights in China?  Disputes arise from trade, investment and economic activities regularly as part of doing business in China. Resolving disputes in an independent and impartial manner is a subject of common concern in international commercial arbitration. When this happens in the court, it is, by the same token, understood that the court must remain independent and impartial in the litigation process.   The dissertation question bears with other questions such as what impartiality is, what judicial impartiality and judicial independence mean, and why the judge or arbitrator must be independent and impartial in the dispute resolution process. Also, one will naturally ask why impartiality matters to the case of resolving civil disputes, particularly disputes involving intellectual property rights in China. What does                                                 11    “An arbitrator nominated by the parties or appointed by the Chairman of CIETAC shall sign a Declaration and disclose any facts or circumstances likely to give rise to justifiable doubts as to his/her impartiality or independence.” – Article 31 1 CIETAC Arbitration Rules (Revised and effective as of January 1, 2015). Similar sample of statement of independence of arbitrators can be found at Annex to UNCITRAL Arbitration Rules (2010). Please see: http://www.uncitral.org/pdf/english/texts/arbitration/arb-rules-revised/arb-rules-revised-2010-e.pdf 	   5 “independent trial” mean in China? Are there any commonalities or differences in approaching the concept of impartiality in China? What is the theory for judicial or arbitral independence and impartiality in general, and why IPR field is chosen as a research field particularly relevant to the subject of impartiality in present time in China?12                                                   12    “While the People’s Republic of China is still poor by Western standards, it has shown remarkable growth since Deng Xiaoping abandoned Communist economic policies. … And with that transition, Chinese companies are becoming producers of intellectual property, rather than merely consumers (or copiers) thereof. There were 976,686 Chinese patent applications and 830,477 Chinese trademark applications filed in 2009, the highest numbers of national filings in the world, with the number of Chinese applications far exceeding that of foreign applicants.”  See David S. Bloch, George Chan, Euan Taylor, “Chinese Intellectual Property Litigation: Theories and Remedies”, in Michael J. Moser, ed., Intellectual Property Law of China, Juris, 2011, p. 315. For a critical view of the Chinese traditional cultural inheritage, please see William P. Alford, To Steal a Book is an Elegant Offence, Intellectual Property Law in Chinese Civilization, Stanford University Press, Stanford, California, 1995. For a prudent exposition of Chinese law in general, please see Stanley Lubman ed., Chinese Legal Reform, Oxford University Press, 1996. For various recent observations of Chinese law, please see Stephen C. Hsu, ed., Understanding China’s Legal System, Essays in Honor of Jorome A. Cohen, New York University, 2003.  For the relativity of judicial independence, please see Jerome Alan Cohen, “The Chinese Communist Party and ‘Judicial Independence’: 1949-1959”, Harvard Law Review, Vol. 82. No. 5 (Mar., 1969), pp. 967-1006.  	   6   2. Aim of the Dissertation  The aim of the dissertation is to explain how dispute resolution in China’s intellectual property system reflects the influence of local legal culture on issues of impartiality and independence. China’s IP system has been developing with a fast speed, paralleling its economic growth rate. Economically, China has been growing its GDP at a relatively high speed average rate of about 7% in the past few years.  Optimistic view of China has said that China is going on its “thin rule of law” pattern of legal system.13 A pessimistic writer of China has predicted that China would collapse in the next decade.14  In 2013, China Intellectual Property Office received 2,377,000 patent applications, of which 825,000 are invention-based patents, 892,000 are utility model patents, and 660,000 are external design patents.15 The increase rates from the same data in 2012 were 15.9% for invention patents, 20.5% for utility models, and 0.3% for external design patents, respectively. 16   In terms of trademark applications, the year 2013 saw total trademark applications of 1,885,000, with an increase rate of 14.15% over 2012. This puts China in the number                                                 13    See Randall Peerenboom ed., Judicial Independence in China, Lessons for Global Rule of Law Promotion, Cambridge University Press, 2010, p. 4. 14    See, for example, Gordon G. Chang, The Coming Collapse of China, Random House Trade Publishing, 2001. 15    Source from China Intellectual Property Office’s report 2013 Report of Intellectual Property Protection in China, see SIPO website: www.sipo.org.cn. 16    Ibid.  	   7 one ranking of world trademark applications among all nations. 17  IP disputes as reported by the SIPO shows that there were 88,583 IP cases accepted in 2013 and 88,286 cases were concluded in the same year, with an increase rate of 1.33% and 5.29% respectively.18  In 2014 there are 521 patent infringement cases involving foreign elements. The same figure was 362 in 2013. There was an increase of 43.9% on a year-by-year comparison from 2013 to 2014.19  These data show that the IP system has growing relatively fast, driven by the patent and trademark applications.20 The increase of the number of IP disputes from the data shows that IP has slowly but increasingly become a focal point for owners who have IP rights in China, as market reforms continue. Impartial resolving disputes involving IP concerns the interests of the IP owners as well as the other parties in the market who benefit from the use of the IP, including government agencies (for example in the use of computer software). The regulatory departments of the government may also be interested in the sustainable growth of IP as such will increase its own authority and gain more credits for public confidence among the government agencies under the Central Government.                                                   17    Ibid. 18    Ibid. 19    See Comparison of 2014 and 2013 IPR Data, from the SIPO website: www.sipo.gov.cn.  20    By comparison, the figure of patent and trademark applications before the Canadian Intellectual Property Office during the year of 2013-2014 is 37,044 for patents and 50,132 (as of March 2014) for trademarks, respectively. See the Annual Report of 2013-2014 at http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/wr03887.html#patentbranch.  	   8 The importance of IP protection towards both domestic and international users of IP in China requires an objective understanding of the legal system in support of the IP protection in China. The dissertation aims to check into the building blocks of the impartial resolution of IP disputes in China, with a view of addressing the deficiencies in the system from legal and operational perspectives.  It is not to gauge the impartiality status quo in court or arbitration cases, but to examine what standards for impartiality (if any) are missing, where the deficiencies are in the system, and how they may be improved in the future. Justice administration mandates that the judicial and quasi-judicial bodies observe the minimum standards or bottom lines for justice to be done impartially in the relevant fields of human relations in China. IP as a frontier right in intangible form warrants in-depth efforts in research for fair and impartial resolution of disputes in the market place in China. As the Chinese market becomes globalized through inward and outward foreign direct investment and trade, the improvement of the impartial administration of justice and rule of law in China will benefit not only China but also its neighboring countries and the world at large.  Modernity is not only reflected in the physical high-rise buildings or high-speed railway and highway infrastructure that supports the daily needs of the people, but more importantly it is reflected in the good natured social order that is best to be pursued morally and legally, so peace, stability and sustainability will survive the flow of constant changes in the society. The building of impartiality in the system of IP dispute resolution in China will, in turn, affect the development of trade relationship between China and other countries in terms of protection of IPRs in cross border trade and investment among 	   9 countries, as China takes the responsible stake and role as the world’s second largest economy.21  This dissertation attempts to take a neutral and objective approach to examining the law and impartiality in the research field of private civil rights involving IPRs in China. I aim to advance standards in relation to impartial resolution of IPR disputes in cross border trade and investment relations, to find legal deficiencies in the current theories and practices in civil law in China, and to contribute to the literature on norms of independence and impartiality of third party decision-makers in civil and commercial dispute resolution in China. It should be noted that the dissertation is an academic research and writing exercise to make contributions to standard building of independence and impartiality of third-person decision-makers. It is not a legal advice or legal opinion and shall not be replied upon as such in any event.   3. Chapters  The thesis will be divided into two parts on the broader lines. Part 1 contains discussions of legal theory of law and impartiality, the critical components of impartiality and their relevance to the intellectual property theme in China. Part 2 is a snapshot of practical procedures and cases with analysis on how the IP dispute resolution system currently works, both as a matter of procedure and as a matter of substance in litigation and alternative dispute resolution fields.  The chapters in Part 2 will show where improvement might be made in relation to the impartial resolution of intellectual property                                                 21   China’s growth is reportedly slowing down over the past few years, from 7.3% in 2014 to 6.9% in 2015, and expected to slow further to 6.3% in 2016 and 6.0% in 2017. See IMF World Economic Outlook Update January 2016, at http://www.imf.org/external/pubs/ft/weo/2016/update/01/index.htm. 	   10 disputes across borders. Each part has three chapters as their components. There are two attachments, one of which deals with methodologies, and the other is a statement of selection of cases.  Chapter I looks at legal theories about law, justice and impartiality. It includes discussions on what law is composed of, what justice and impartiality are about, and explores the scholarly literature about the concept of impartiality and reviews the Chinese traditional Doctrine of the Mean in Confucius teachings. Drawing on Canadian case law, I explore the dimensions of judicial impartiality in the chapter, as a starting point.  Chapter II provides the main reasons why impartiality matters to the subject of resolving intellectual property disputes. I discuss the requirement of corrective justice system, the equality needed under law as a matter of justice, and the need to respect the intangible value of the IP, and to protect private property rights involving intangible assets across borders.  By bringing the issue to the constitutional level, the chapter includes arguments to strengthen the current PRC Constitutional provisions and raises a call for an upgraded amendment of the standards for impartiality and an express commitment to protection intellectual property in the Constitution in China.   Chapter III explores issues of the trial processes in different countries and explains the current “independent trial” system in China. The chapter examines what is “independent trial” under the current Chinese constitutional framework, and whether and to what extent impartiality is different in such “independent trial” system. By 	   11 comparison, I discuss what judicial independence in Canadian judicial practice means, and analyze why the institutional independence of the courts and arbitration bodies are imperative for dispute resolution. In order to allow “independent trial”, it is suggested that unnecessary influences should be fenced away from the judiciary in specific cases by leaving space to the judiciary to decide concrete cases according to their professional knowledge and rules of procedure, law and evidence applicable. I analyze such influences from outside influences to influences to be controlled from inside the courts. The Collegiate Bench, the Adjudication Committee and the judicial ethics are included in the study. A third dimension of judicial impartiality, in the form of substantive justice, is explored in some detail as well in this chapter. The chapter also touches on the Xin Fang (the “Letter-Visit”) system to illustrate the political implication of lack of institutional independence and find out how a government complaint system such as Letter-Visit may be improved in the face of the needs for due process under rule of law.   Chapter IV explores the practical aspects of the concept of impartiality in the non-judicial and judicial enforcement processes involving intellectual property rights (IPRs) in China, including administrative enforcement conducted by the local administration of industry and commerce (AIC), the local patent management bureau (PMB), the local copyright administration (LCA) in China. As IPRs are private property rights, they pose challenges to decision-makers in terms of impartial resolution of disputes, particularly from increasingly cross border composition of rights. In the litigation context, I present a descriptive account of civil enforcement of IPR to illustrate the reciprocal rights and obligations as between the parties under the civil procedure. Criminal enforcement is 	   12 excluded from this dissertation. I also explore the rising supervisory authority of the court over administrative decision-making bodies such as the Patent Office, the Trademark Review and Adjudication Board (TRAB). The goal of this review of impartiality in the non-judicial and judicial enforcement of IPRs in China is to examine the mechanisms (if any) available under Chinese law to ensure independence and impartiality of the decision-makers in IPR-centered proceedings.   Case studies are included to show how the reasons have been given in the judgments, in accordance with the procedural and substantive rules of law, in the ordinary course of the adjudication work. A statement of selection of cases is included in Attachment 2 of the thesis. Following a forward-looking approach, the chapter analyzes the mechanisms or measures needed or newly implanted to ensure independence and impartiality in the Chinese juridical processes of enforcement of IPRs.   Chapter V examines impartiality requirements in alternative dispute resolution mechanisms, particularly international commercial arbitration involving IPRs. In relation to the use of alternative dispute resolution processes such as arbitration to settle IPR disputes, I discuss primarily the arbitration practice of China International Economic and Trade Arbitration Commission (“CIETAC”) and other arbitration institutions that have implemented independence and impartiality requirements. These will be commented against the widely accepted international practice of independence and impartiality in dealing with contractual and non-contractual IPR disputes. I also highlight the important imperatives developed from the work of UNCITRAL on international arbitration from 	   13 the Model Law as well as its newly revised Arbitration Rules. I analyze some recent practical challenges facing the impartial arbitration practice in China. Market driven challenges to the autonomy of arbitrators and ad hoc arbitrations will call for new attention of the arbitration community as market reforms continue in arbitration filed. Investment in intellectual property and the prospects for investor-state arbitration to be used to address intellectual property disputes are explored as one of the challenges ahead of China and other member states of bilateral investment treaties or multilateral investment treaties.   Chapter VI explores impartiality of mediators in mediation process in China and internationally.  While the mediators are not adjudicators, by comparison, a high degree of impartiality applies to the third person mediator, which enhances the ethical role of neutral persons in resolving disputes by way of consensus, where no decision is imposed by such third persons. Impartiality may require integrity of the neutrals, free of conflict of interests, and a combination of subjective and objective standards for the third parties neutrals. Independence is less of a concern in mediation since there is no imposed third-party decision out of the mediation process.  As a consensus-based process, impartiality in mediation is subject to the parties’ agreement and may achieve mutual advantage with efficiency-oriented impartiality as outcome in mind.  Finally I will conclude the dissertation by offering some observations about impartial resolution of disputes in the corrective justice system in China. I summarize some dimensions of standards that are necessary for the improvement of judicial 	   14 impartiality, and identify where improvements that have been made as a result of increased consensus on independence and impartiality in the IP field. I center the discussion on the possible improvement of consensus of rule of law, transparency, reasoned judgments, accountability, integrity, and corrective justice, including due process and substantive justice elements. I present recommendations on the specific measures to be taken in the future to address the concern of independence and impartiality of decision-makers in dispute resolution involving IPRs. In this regard, the mechanism developed in international commercial arbitration requiring arbitrators to make appropriate disclosure as part of the ethical practice and transparency requirement proves to be the appropriate practice in various dispute resolutions mechanisms. I raise some earnest calls to note the changes proposed at the Constitutional level to best approach the practical needs to upgrade theories, to commit to protect IPRs and maintain high standards for independence and impartiality. The thesis looks to further researches on judicial budgeting, strengthening the judiciary and education for inherent needs of natural justice in the future, and advocates that the best practice of judicial impartiality in international community should be studied and adapted locally to fit into the local culture in managing the non-judicial and judicial decision-making process in China.  	   15   Part 1  General Principles  The first part of the dissertation deals with general principles in connection with impartial resolution of cross border intellectual property disputes. “Impartial” is the opposite of “partial”. In Chinese it means Bu Pian Bu Yi  “不偏不倚” (non-partisan, unbiased), or “公正”  (fair). What is impartial or (impartiality in the noun form) needs to be explored in any society so that the citizens of that society have a common understanding what is fair and live in the fair operation of the system, with peace and stability. The exploration of understanding of what proper standards for impartiality in dispute resolution is most needed as China’s market reform continues and foreign investors make investment in China. Intellectual property rights are recent phenomena in China but they exert most influence in reshaping the understanding of rights and obligations following more than thirty years of economic reform. Intellectual property law creates a landscape in China where one will find the acceptance of modern concepts of law, enforcement of law, and judicial protection of rights from international instruments into Chinese domestic laws.  Impartial resolution of disputes puts an end to disputes, minding members of society to respect the rule of law and good social order. The thesis examines whether impartiality is different in the current “independent trial” mode in China, through the lens of intellectual property rights (IRR). It concludes that there lack standards for impartiality in corrective justice in China. Drawing on Canadian case law, traditional philosophy and 	   16 IPR case studies in China, I identify four standards for impartiality: avoiding conflict of interests, procedural due process, substantive justice and consensus-based impartiality, in addition to the “time” element of impartiality. Given deficient provisions in the principal documents for administration of justice, I argue that impartiality should be raised to the Constitutional level in China. International high standards for impartiality ought to be adopted, while Confucian teachings can be upgraded to fit with the need for “social contract” consciousness and rule of law in China.  Part 1 includes three chapters on what law and impartiality are about, why impartiality matters to IPRs, and whether the “independent trial” mode embodies the goal of impartiality in the Chinese constitutional context. As part of the reasons for the dissertation, the selection of field of intellectual property as a field of research is based on the consideration that impartiality cannot be missed out in the selected field and further any findings in such field may provide an exemplary perspective for impartiality in dispute resolution in China in general. The on-going reforms in the IPR field may further advance judicial reforms in the efforts to advocate the rule of law and impartial administration of justice in China. 	   17   Chapter I: Law and Impartiality  This chapter sets out the context for impartial dispute resolution in general. I look at the theories of law and impartiality from theoretical perspective, bearing in mind the disputants, or the parties to a commercial dispute, as two identifiable ends of a disputing setting. Since my focus of the study is a perspective from intellectual property rights, I present the subject matter of impartiality from its definition and general principles, and examine the purpose of impartiality in civil justice, for which the disputants pursue their respective rights against each other in a dispute context.  1. Law  Law, as a system of rules, is largely community or sovereign-state-based to govern and serve the interest of the respective communities or constituencies in a sovereign state. Impartial resolution of intangible property rights disputes deserves special attention for professionals as well as the general public as the world becomes more integrated through the use of Internet and other web-based applications across countries, cultures and civilizations. A review of the literature on the concept of law, justice and impartiality will be of help in considering what impartiality means, why impartiality is legitimately expected in modern democratic societies and how impartiality may help the peaceful and harmonious resolution of cross border disputes.   	   18 (1) Law as a System of Rules  Law and justice are two sides of a coin. They cannot be separated. Sometime people use these terms interchangeably, like the law court or the court of justice. When people associate with each other in a society, order comes to the forefront. In what order should people deal with each other, either when they form a group or act each as an individual?   Aristotle considers that law must be good and must be obeyed, for purpose of good government.22 Law is order, and good law is good order.23 Legal positivism, one of the most important legal theories in modern society, looks at law from “the commands of the sovereign backed with coercive force” to “a set of rules made by an authorized institution of the sovereign state which is conceptually separate from its moral merit”24. Laws are called laws as they represent the will and commands of the sovereign, and are promulgated as laws for the citizens to comply with. Law is a separate matter from morality. As narrow approach, laws do not have to comply with morality in order for them to be laws.   According to legal positivism, the existence and content of law depends on social facts and not on its merits.  Law is best understood to be a “branch” of morality or justice. According to Hart, its congruence with the principles of morality or justice is of the                                                 22   Aristotle, Politics, Translated by Benjamin Jowett, Dover Publications, Inc., New York, p. 163. 23   Ibid., p. 267. 24   Brian H Bix, “Natural Law: The Modern Tradition”,  in Jules L. Coleman & Scott Shapiro, (eds.) Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press, 2002) p. 75. 	   19 essence. “This is the doctrine characteristic not only of scholastic theories of natural law but of some contemporary legal theory which is critical of the legal “positivism” inherited from Austin.”25 John Austin formulated the theory in his famous statement: “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.” 26 Where there is law or not depends on what social standards its officials recognize as authoritative.27   (2)  Inner Morality of Law  According to Fuller, law as a social standard, is associated with a set of standards, which he calls “internal morality of law”. He considers these standards under eight heads28:  • Law must be general; • Law must be published; • Must be clear and understandable; • Must be free from contradictions; • Must be constant through time; • Must be congruent with the acts of officials;                                                 25   H.L.A. Hart, The Concept of Law, Oxford: The Clarendon Press, 1961, p. 7. 26     See: http://plato.stanford.edu/archives/spr2003/entries/legal-positivism  27    Ibid. 28    Lon Fuller, The Morality of Law, New Haven and London: Yale University Press, 1964, p. 39. Also see Robert Binkley, Book Review, The Morality of Law, by Lon L. Fuller, New Haven and London: Yale University Press, 1964, Duke Journal of Law, p. 668.  	   20 • Must not be retrospective; • Must not be impossible.  As his central theme, Fuller further argues that the inner morality of the law is a kind of natural law, which flows naturally from the definition of law.  Fuller sees the law as a process that emphasizes the importance of the interaction between officials and citizens. Only when citizens and officials cooperate, each fulfilling their own functions, can law work.29 If officials do not keep their promises to enforce the rules as promulgated, the smooth running of society will start to break down. According to Fuller, the rule systems that substantially comply with the eight requirements are “legal systems”, in the sense that they are likely to succeed in guiding the behavior of their citizens.30  (3)  Law, Policy and Ideology   Policies are guidelines or standards that are universally applicable to a community to reflect the goals or strategies for handling affairs of the social institution or the community. In Dworkin’s observation, policy differs from principle in the sense that the latter is a matter required from justice and fairness while the former is a “kind of standard that sets out a goal to be reached, generally an improvement of some economic, political or social feature of the community”.31 Policy is not part of the law, although it may fall                                                 29   Brian H Bix, Natural Law: The Modern Tradition, supra footnote 24, p. 79. 30   Ibid. p. 80. 31   Dworkin, infra note 53, p. 43. 	   21 into equity considerations in decision-making process.32  In Chinese legal jurisprudence, law co-exists with policies (Zhengce 政策). Law refers to the normative rules and regulations that are promulgated by the state to govern social relations.33  Policies represent the will of the state as well, and like law, belong to the ideologies of the state. The state may, as a matter of caution, first enact policies to guide social relations as time progresses, and then legislate the policies into law with the experiences drawn from the implementation of the policies.34 State policies form the basis of legislation of law, and are the core and basic portion of underlying rules of the law, while law is the fixation or reflection of the state policies.35  Where there is law, the citizens will need to comply with law; where there are no express rules of law but policies, the citizens will need to observe the policies. 36  According to orthodox Marxism, disputants in different classes will struggle to impact the growth of society, from original society to feudalistic society, from feudalistic society to capitalist society, from capitalistic society to socialist society and ultimately from socialist society to communist society, the stage of withering away of state, where law is not needed and supply of goods or services will so abundant that people will live on sharing basis.  Karl Marx and Frederic Engels joined arms on the writing of the Communist Manifesto that swept the world under the social conflict theory of class struggle. Marx’s materialism consisted of the concept of forces of production and the                                                 32   See Christopher R. Rossi, Equity and International Law, Transnational Publishers, Inc., 1993, p. 126. 33   See  Zheng Li and Wang Zuotang (ed.), Civil Law (Min Fa Xue), 2nd Edition, Peking University Press, 1988, p. 23. 34   Ibid. 35   Ibid. 36   Article 6, General Principles of Civil Law of the PRC. 	   22 relationship of production. The former dictates the latter. Law as a form of ideology is determined by the economic infrastructure.37 Marx believed in ultimate revolution, as the relation of production becomes a “fetter” on the forces of production. “The knell of capitalist private property sounds. The expropriators are expropriated”. The last revolution will ensue.38    Marxism was derived from the German philosophy, British political economy, and the French socialism in the Victorian context in the late 1880s.39 Marx’s unfinished project of writing Das Kapital itself reflected his finding of what he called surplus value, and his reasoning of how the working class, if realized the hidden rule of surplus value, would unite to bring down the capitalist system. 40 According to Alan Ryan, “Marx’s greatest failure as a political thinker was less in the analysis of the present than in giving no thought to how the socialist society he imagined would be administered. That it would have no politics in the narrowly Marxist sense of a system of coercive law and the associated set of institutions for making and enforcing such law we may grant for the sake of augment.”41                                                    37   Raymond Wacks, Philosophy of Law, Oxford: Oxford University Press, 2006, Translated by Yi Lin Publishing House, 2013, p. 82. 38   See Alan Ryan, On Marx, Revolution and Utopian, Liveright Publishing Corporation, New York, 2012, p. 75. 39    Ibid., p. 15.  40    Ibid., p. 23. 41    Ibid., p. 33.  Marx’s thought of social evolution by means of political revolution may have placed little emphasis on the gradual improvement that may be made through social welfare system to improve the lot of the working class so a peaceful representation of the interest of the working class could be made and “a closing of the differences in income, power, aspirations, and culture between classes, could see a peaceful transition from full-blooded, old-fashioned capitalism to democratic socialism or capitalist welfare state democracy.” Ibid., p. 89. 	   23 Law is considered as an instrument representing the will of the dominant class, under Marxism.42 The goal of the Marxism appears to seek to achieve a fair system for the proletariat working class through the theory of historical materialism. This may operate a little in favor of the working class, as fairness should take into account the interest of both ends of the spectrum of classes (if the theory accepts a justified class categorization).43 The transition to the fair social system seems to be best achieved by peaceful means rather than through violent means or otherwise in the form of political “revolution”, as it is plain and obvious that at the peaceful new stage of co-existence of human species, conflict resolution through peaceful means will reduce damage to the existing system to the minimum and on the other hand, bring new improvement to the existing system by generating fair resolutions in the level-playing field of dispute resolution in the broadest sense.   Law is considered as a way of government in traditional Chinese thinking from the Legalists. Chinese society originally follows the Confucian teachings, including governance by way of benevolence (Ren) at the hand of the governing class. Those who work with the brain govern those who work with labor (see discussion at p. 159). Law is used as a functional tool to govern the ordinary people by the governing class. “Han Fei Tzu writes: ‘A law is that which is recorded on the registers, set up in the government                                                 42    See Wacks, supra footnote 37. Marxist materialistic account of law may run into difficulties of justification when the law of the state grows by legislations that improves the lot of the working class. How can these legislations represent the will of the dominant ideology or class interests? Ibid. p. 83. 43    See, interestingly, the common pattern of thought process between “the middle way” from Confucius and Aristotle, discussed below, p. 48. 	   24 offices, and promulgated among the people.’ (Han-fei-tzu, ch. 38)  Through these laws the people are told what they should and should not do.”44  2. Justice  Justice is a concept that is associated with good value, rationality and fair procedure for a democratic society. According to Aristotle, corrective justice and distributive justice are the “archetypes of rational ordering”. 45 Corrective justice aims to provide correction to the wrong done by one party to another between equal parties.46 Corrective justice accompanies the growth of private law, i.e., the plaintiff seeks to restore to the previous equality, which the defendant had breached by the wrong done to the plaintiff. “It makes no difference whether a worthy person has deprived an unworthy one or vice versa, or whether a worthy or a worthless person has committed adultery, but the law looks to the difference of the harm alone and treats them as equals”47  Justice is like beauty in the eyes of beholder. In his scholarly disposition of distributive justice, John Rawls posits that two principles would emerge in the hypothetical social contract from the original position: one is that it provides equal basic liberties to all citizens, such as freedom of expression or religion, and two is the social and economic inequalities are to be arranged “so that they are both to everyone’s                                                 44     See Fung Yu-Lan, A Short History of Chinese Philosophy, A Systematic Account of Chinese Thought From Its Origins to the Present Day, Edited by Derk Bodde, The Free Press, 1976, p. 160. 45     Ernest J. Weinrib, “Aristotle’s Forms of Justice”, Ratio Juris, Vol. 2 No, 3 December 1989 (211~26), p. 215.  46     Cf. Confucius: “To govern is to correct”, Book XII, 17, supra footnote 1. 47     Weinrib, supra footnote 45, p. 212, quoting Aristotle, Nicomachean Ethics 1132 a 2-5. 	   25 advantage and attached to positions and offices open to all”.48 The second principle requires equal distribution of income and wealth in the sense that only those social and economic inequalities that work to the advantage of the least well off will be permitted in the social contract. 49  Following Rawls’s concept of justice as fairness in the private sector (instead of social sector) of dispute resolution, a question will be asked as to whether any balancing rights and interests in dispute resolution to the advantage of the less well-off in the dispute would be justified in the private sector for dispute resolution. How do judges and arbitrators exercise discretion to resolve the disputes in economic interests before them, a question that Ronald Dworkin was striking at in his Law of the Empire?   (1) Due Process and Integrity  Ronald Dworkin argues in favor of law as integrity and points out that law as integrity has two principles: a legislative principle that asks lawmakers to try to make the whole set of laws morally coherent, and a judicial principle that instructs that the law be seen as coherent in that way, so far as possible. 50  “The adjudicative principle of integrity instructs judges to identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author – expressing a coherent conception of justice                                                 48     John Rawls, “Civil Disobedience and Legal Obligation”, in John Arthur ed., Democracy Theory and Practice, Belmont, Calif.: Wadsworth Publishing Co., 1992, p. 313.  49     Michael J. Sanders, Justice: What’s the Right Thing to Do?, New York: Farrar, Straus and Giroux, 2009, p. 142. 50     Ronald Dworkin, Law’s Empire, Cambridge, Mass.: Belknap Press of Harvard University Press, 1986, p. 177. 	   26 and fairness.” 51  Recognizing the law is indeterminate, Dworkin argues that judges apply principles to deal with hard cases where the pre-existing law is silent, as Dworkin puts the point: “judicial decisions … in hard cases … should be generated by principle”.52  In asking the question: is law a system of rules, Dworkin posits that as “a requirement of justice or fairness or some other dimension of morality”, a principle is “a standard that is to be observed”, other than rules. 53 Per Dworkin, justice or fairness requires the decision-maker to apply “legal principles” in addition to legal rules. Legal principles first differ from legal rules in a logical sense. Legal principles operate to point to the direction, instead of applying to situations of facts “in an all-or-nothing fashion”.54 Dworkin takes the view that principles also have a dimension that rules do not have, a dimension about the weight or importance, while he acknowledges that judgment that one principle or policy is more important than another might often be controversial. Dworkin argues that law includes both legal rules and legal principles, and an official may use discretion in applying legal rules and legal principles, in the strong sense that it “means not that the official is free to decide without recourse of standards of sense and fairness, but only that his decision is not controlled by a standard furnished by the particular authority”.  “Discretion, like the hole in a doughnut, does not exist except as an area left open by a surrounding belt of restriction”.55 It boils down to the conclusion that discretion to balance the economic interests of the parties in a two party dispute will be                                                 51     Ibid. p. 255. 52     Ronald Dworkin, Taking Rights Seriously, Cambridge: Harvard University Press, 1978, p. 84. 53    R.M. Dworkin, “Is Law a System of Rules?”, in R.M. Dworkin ed., The Philosophy of Law, New York: Oxford University Press, 1977, p. 43. 54     Ibid., p. 45. 55     Ibid., p. 52. 	   27 restrained by the rules and principles applicable to the issues in the dispute. In other words, Rawls’ theory of difference to be resolved in favor of the least advantaged would not apply to the distribution of economic interests by the adjudicators in the corrective justice sense.  (2)  Common Sense Justice   In Shakespeare’s The Merchant of Venice, justice touches on the conscience of the human beings. Shylock has his loan to Antonio based on a contract clause that if the loan is not repaid within three months, Shylock shall have one pound of flesh taken from Antonio (the “flesh-bond”). This guarantees the repayment of the loan. When Antonio failed to repay the loan on time due to an unexpected tempest occurring over the sea and, as a result, the delay of his ships of goods, Shylock requested the court to enforce the flesh-bond against Antonio. Portia who defended Antonio in court agreed with Shylock to enforce the contract term without any variation, and demanded Shylock to cut only one pound of flesh but no drops of blood, as a strict reading of the contract term. Shylock shall be deprived of all his property if the performance of the flesh-bond takes away any drop of blood from Antonio. The story ended with Shylock being released but had to lose half of his property as he breached another ancient rule that any alien’s attempt to endanger a citizen’s right to life shall have half of his property confiscated.56   In Shylock’s case, is the end result a matter of justice? He simply wanted to enforce a contractual term he had with Antonio. Why did he have to lose half of his                                                 56   See John Drakakis ed., William Shakespeare, The Merchant of Venice, London: Arden Shakespeare, 2010.  	   28 property at the end of the story?57 The matter seems to be related to the concept of impossibility of performance under modern contract law. As such, arguably, the clause is invalid and unenforceable and damages are not due in the circumstances.58 Justice in The Merchant of Venice seems to be a subjective matter touching on the conscience of the individual writer.  (3)   Perceived or Real Bias  In Canada, justice constitutes the core of natural law to secure the necessary good social order. Natural law imposes a self-evidence requirement for fair procedure.59 Natural justice deals with and gives remedies to contractual breaches, non-contractual torts, criminal offences or other damages to property, individual rights or personhood, through enforcement of fair procedure. In Anglo Canadian law there is a comparable US constitutional concept of “due process” under the 1982 Canadian Charter of Rights and Freedoms, with fair procedure being the Canadian equivalent requirement to secure natural justice. 60  Of the literature on judicial impartiality, there are arguments on the different dimensions of such impartiality. Judicial impartiality has three dimensions: a procedural dimension where the court gives the parties a fair hearing and equal treatment in the                                                 57    “Whatever disposition of our sympathies may be in this conflict, there lurks beneath the surface the distinct possibility that in Christian Venice equity before the law, especially in relation to ‘strangers’, may be an impossibility” – see ibid. p. 98. 58    For an economic analysis of the doctrine of “impossibility of performance”, see German Coloma, “Damages for Breach of Contract, Impossibility of Performance and Legal Enforceability”, Review of Law and Economics, 4:1 2008, pp. 65-80. 59    W. Wesley Pue, Natural Justice in Canada, Butterworths, 1981, p. 3.  60    Ibid. p. 4. 	   29 litigation process; a political dimension where the court is destined to promote public confidence in the judicial administration of justice; and an ethical dimension where the judges work under a good code of ethical conduct, the breach of which will result in administrative sanctions against the judges. 61  It is also argued that judges in the judiciary are so tightly constrained by precedents and other scrutiny in common law jurisdictions that it is impossible as a general rule for judges to decide the cases in a non-impartial or biased manner. Judges are not possible to adjudicate cases according to their own preferences or bias.62  “Bias” in the cognitive sense is a preference to weigh and choose what is more important information than others, or operates “as a core brain mechanism that attaches different weights to various information sources, prioritizing some cognitive representations at the expense of others”. 63     Judges are bound to follow legal precedents in common law jurisdictions. As such, they can only make rational decisions in specific cases, following judicial precedents. Further, judges are under vigilant scrutiny by the society as they perform a public function in resolving disputes for the public. 64 Judges are under supervision by their peer colleagues, by the press, by the appellate jurisdiction, by the parliament who will be concerned how the laws are interpreted, and by the academic who monitors the                                                 61     Charles Gardner Geyh, “Dimensions of Judicial Impartiality”, 65 Florida Law Review, 493 2013 p. 494. 62     Stephan J Lee,   “Impartiality in the Judiciary”,  14, U. Queensland L. J., 136 1985-1987 p. 136. 63    See Jan Lauwereyens, The Anatomy of Bias: How Neural Circuits Weigh the Options, Cambridge, Mass.: The MIT Press, 2010, p. xiv. 64     Ibid. 	   30 growth of the law as educators for the next generations.65 Arguably in adjudicating process, the approaches may be varied, depending on the issues involved and the extent of relevant factors of “perceived or real bias”.66    Murthy observed that arbitrator impartiality at lower level than that for the judiciary will sabotage the public confidence in the justly resolution of disputes, even if arbitrators owe no duty to publish their awards, thus at more liberty in exercising discretions in dealing with the issues in the case.67 “A standard of partiality below that required of judges, however, only serves to deter parties from seeking to resolve disputes through arbitration because the parties will lack confidence in the impartiality, and, therefore, the fairness of the arbitration process.”68  Bourdieu views impartial solutions coming out of a “neutralizing space” as created by disinterested third parties who have no interests in or relations with either of the disputing parties. The solutions are recognized as impartial because “they have been defined according to the formal and logically coherent rules of a doctrine perceived as independent of the immediate antagonisms”.69                                                  65     Ibid. 66     Kate Malleson, “Safeguarding Judicial Impartiality”, Legal Studies,  03/2002, Vol. 22, Issue 1, p. 56.  67     Elizabeth A Murphy, “Standards of Arbitrator Impartiality: How Impartial Must They Be?”, 1996, J. Disp. Resol. 463, 1996, No. 2, p. 475. 68     Ibid., p. 475. 69    Bourdieu, “The Force of Law”, 38 Hasting. L. J.  829, 1986-1987, p. 830. 	   31   3. Impartiality  Impartiality is the core to secure the corrective justice.70 Impartiality denotes the image of blindfolded goddess holding the sword on the one hand and the scales of justice on the other.71 It sometimes is viewed as what might be seen as a non-instrumental value.72 It is a concept referring to “the absence from a procedure of extrinsic factors favoring one side of the dispute over the other”.73 It appears to be a procedural and professional/ethical matter that discourages the influence of unrelated factors on the decision-makers in favor of one party against the other to the procedure. It points to the “nature of the connections the judge has with the parties, the non-party participants in the court process and the questions which are presented for adjudication”.74 It requires deposition of the disputes on the procedure as well as the merits according to law, and requires the adjudicator to act fairly until the close of the proceedings.75  (1)  Impartiality as Attitude  A question arises as to whether impartiality exists as a matter of attitude of the decision-maker in a specific case. In other words, impartiality does not support bad faith                                                 70    Gongzheng shi fazhi de shengming xian (“公正是法治的生命线”)[Impartiality is the life line of rule of law], see Feng Yanli, On Rule of Law and Impartiality [论法治公正] Journal of University of Mining and Technology (Social Science), 2015 Vol. 2, March, p. 1. 71    Andras Sajo ed., Judicial Integrity, Leiden; Boston: Martinus Nijhoff Publishers, 2004, p. 17. 72    Christopher J., Peters, A Matter of Dispute: Morality, Democracy and Law, 2009, Oxford: Oxford University Press, p. 79. 73    Ibid., p. 78. 74    See Bizon v. Bizon, 2014, ABCA 174. 75    Ibid.  	   32 conduct, or if bad faith exists, impartiality would tend to stand away from bad faith, and prefer to determine the issues in support of good faith.   In Valente v. the Queen76, the Court (per LeDain, J.) stated at p. 685 of 2. S.C.R.: Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.” (Emphasis supplied)  Impartiality has a subjective feature, while independence more objectively reflects “the underlying relationship between the judiciary and other branches of the government which serves to ensure that the court will function and perceive to function impartially”.77 The two come together to reflect the relationship of “end” and “means to an end”. They are often used together as “independent and impartial”.  (2)  Impartiality as a Spectator  In Zhuang Zi’s second chapter, Ch’i Wu Lun, it is stated:  “Suppose that you argue with me. If you beat me, instead of my beating you, are you necessarily right and am I necessarily wrong? Or, if I beat you, and not you me, am I necessarily right and are you necessarily wrong? Is one of us right and the other wrong? Or are both of us right or both of us wrong? Neither you nor I can know, and others are all the more in the dark. Whom shall we ask to produce                                                 76    (1985) 24 D.L.R. (4th) 161, [1985] 2 S.C.R. 673. 77   See R. v. Lippé, [1991] 2 SCR 114, 1990 CanLII 18 (SCC), <http://canlii.ca/t/1fslj> 	   33 the right decision? We may ask someone who agrees with you; but since he agrees with you, how can he make the decision? We may ask someone who agrees with me; but since he agrees with me, how can he make the decision? We may ask someone who agrees with both you and me; but since he agrees both you and me, how can he make the decision? We may ask some one who differs from both you and me; but since he differs from both you and me, how can he make the decision?”78  Ch’i Wu Lun takes the view that opinions are made by each individual from his own finite point of view. Being finite, such opinions are necessarily one-sided.79  In the context of exposing the concept of happiness of the utilitarianism, John Stuart Mill analyzed the idea of “impartiality”. He says emphatically:  “I must again repeat, what the assailants of utilitarianism seldom have the justice to acknowledge, that the happiness which forms the utilitarian standard of what is right in conduct, is not the agent’s own happiness, but that of all concerned. As between his own happiness and that of others, utilitarianism requires him to be as strictly impartial as a disinterested and benevolent spectator.”80                                                  78    See Fung Yu-Lan, supra footnote 44, p. 111. 79    Ibid. 80    John Stuart Mill, Utilitarianism, Peterborough, Ont.: Broadview Press, 2000, p. 26. 	   34 Here the concept of impartiality means the standing of a “disinterested and benevolent spectator”, who has no interest in the competing interests in the relevant operating matters, and as between himself and another party, holding a benevolent instead of self interested attitude towards others.  The idea of impartial observer is found in thinkers including Adam Smith and R.M. Hare as well.81  The enforcing officials of a state have their role to uphold and enforce the law, and the provisions of the law. They must perform an impartial role to refrain from being influenced by factors other than the law, so as to complete their mission of protecting the legitimate rights of the intellectual property rights holder. Even if they are part of the government bodies and are paid by the government agencies, as such they are not in an independent positions as such term is understood to mean in relation to judiciary, they must take an impartial attitude to perform their work to protect the complainant’s intellectual property rights. In essence, what they do is simply to protect the public interest (excluding their own self interest) that is involved in maintaining the order for respect of intellectual property and for the parties to do what is the right thing to do. As Mill continues to say:  “In the golden rule of Jesus of Nazareth, we read the complete spirit of the ethics of utility. To do as one would be done by, and to love one’s neighbor as oneself, constitute the ideal perfection of utilitarian morality.”82                                                  81    Andras Sajo, supra footnote 71, p. 19. 82    Ibid. C/f: Do not unto others what you would not want others to do unto you -  [Ji Suo Bu Yu, Wu Shi Yu Ren] – Confucius adage. Confucius, Analects XII, 2, supra footnote 1. 	   35 Confucius advocates human-heartedness (Ren) or benevolence, i.e., loving others. When Chung Kung asked the meaning of Ren, the master said: “… Do not do to others what you do not wish yourself…”.83  “The superior man comprehends yi (righteousness); the small man comprehends li (profits)”.84 Government officials ought to act according to these moral teachings and do what is the right thing to do, as part of the officials’ duty to educate the public by way of enforcing legal norms.  In such context, the position of institutional independence is relatively of limited value, as the state of minds of the officials ought to be benevolent and righteous, regardless of the institutional status of the organization in which they perform. The more significant weight seems to be on the substance of impartiality – the ethics of utility to do the right thing for the public through acting within moral norms.  (3)  Impartiality as a Balance in an Identifiable Two-Party Dispute  Impartiality exists as a concept where there are two or more disputants in an economic or social context. It would not seem to be proper to say one is impartial where there is no dispute or where there is no pre-existence of issues, except impartiality denotes some public official duty as discussed below. In this sense, the critique of utilitarian impartiality as impersonality from Johan Rawls makes sense. “An impartial judgment, we can say, is one rendered in accordance with the principles which would be chosen in the original position. An impartial person is one whose situation and character enable him to judge in accordance with these principles without bias or prejudice. Instead                                                 83     Confucius, Analects XII, 2, supra footnote 1.  84     Confucius, Analects IV, 16, ibid. 	   36 of defining impartiality from the standpoint of a sympathetic observer, we define impartiality from the standpoint of the litigants themselves.”85   For example, as artist who has distinctive artwork cannot be described as impartial, because there is no dispute in that context. An official dealing with a complaint might be said to be impartial if he or she takes into account the claims, defense or counter-claims from the complainant and the complained from both substantive as well as procedural aspects, without taking into account elements unrelated to the disputes. Therefore impartiality is relevant to persons who might be obliged to deal with two or more parties who have competing interests in a matter. A lawyer representing one party may not be appropriate to be described as “impartial” as he is bound to work for the benefit and interest of the party who engages him.86 However, a lawyer who acts as an mediator who must be impartial as he deals, as a mediator, with two or more parties who have competing interests involved in the dispute.87 In this context, Rawls considers that the utilitarian doctrine of impartiality has a fault of mistaking impersonality for impartiality.88  As noted above, to Dworkin, law composes of standards of legal rules and principles applicable to disputants in a dispute setting. Such standards include rules that apply with “all-or-nothing” effects, and principles and policy that include moral norms and point to the direction of the dispute resolution. Judges are to use discretions in cases where rules are silent or deficient, by applying the legal and extra-legal rules and                                                 85    See John Rawls, A Theory of Justice. Revised Edition, Cambridge, Mass.: Harvard University Press, 1999, p. 165. 86    A principle of non-accountability even applies to lawyers, which means that lawyers who serve competently, diligently and faithfully as advocates for their clients and do not take into account morality should not be tainted with moral blames that may properly be placed on clients. See Wendel W. Bradley, Ethics and Law, an introduction, Cambridge, UK: Cambridge University Press, 2014, p. 45. 87    For mediator’s impartiality, please see more explanations in Chapter VI below. 88    See Rawls, supra footnote 85, p. 166. 	   37 principles (both procedure and substantive) to the dispute at the hand. Where disputants agree to apply the law of a specific country, such as the law of England and Wales, does that mean that the parties choose to apply the legal rules as well as legal principles and policies applicable in England and Wales? The answer probably is in the positive side as the court will not only apply the statutory law applicable to the parties, but also norms and principles derived from common-law precedents in the jurisdiction of England and Wales. Failing to take into account the precedents in common law in this example will not likely be considered as “impartial” in substance, as judges in common law are bound by precedents. Therefore there is a substantive element of impartiality in a dispute setting, in addition to procedural impartiality by treating the parties equally and professional/ethical impartiality of avoiding conflict of interest at the same time.  (4)  Impartiality as Mutual Advantage  Brian Barry views impartiality as mutual agreement based on equality of disputants. “A theory of justice which makes it turn on the terms of reasonable agreement which I call a theory of justice as impartiality. Principles of justice that satisfy its conditions are impartial because they capture a certain kind of equality: all those affected have to be able to feel that they have done as well as they could reasonably hope to. Thus, principles of justice are inconsistent with any claims to special privilege based on grounds that cannot be made freely acceptable to others”.89 Impartiality denotes the equal treatment to the parties, with no privilege to be given to one party only.                                                  89   Brian Barry, Justice as Impartiality, Oxford [England]: Clarendon Press, 1995, p. 7. 	   38 Barry sees impartiality in two orders: the first order being impartial behavior, in the sense that one behaves impartially by “not being motivated by private considerations”, but rather “you must not do for one person what you would not do for anybody else in a similar situation”. The second order is the one that is “capable of forming the basis of free agreement among people”, that is, the impartiality based on mutual agreement. In resolving conflicts, justice as impartiality operates to strike a balance of power between the disputants. Barry called that as “justice as mutual advantage”, and “justice as reciprocity”. 90 In justice as mutual advantage, Barry imagines that “people with different conceptions of the good seeking a set of ground rules that holds out to each person the prospect of doing better (on each person’s conception of what ‘doing better’ consists of ) than any of them could expect from pursuing the good individually without constraints”.91  In Chinese saying: 抱团取暖 [holding together in union for joint warmth against the cold]. In such situations, there must be consensus or agreement for holding each other together for the same goal. Consensus is the key among a group of people where there is an identical goal in a societal scenario. The essence is that warmth mutually increases by holding each other together. According to Barry, “[t]he only significance people attach to whatever agreement they make is that it will, they hope, offer a more effective way of achieving their ends than is provided by their unconstrained pursuit of those ends”.92                                                   90   Ibid. p. 12. 91   Ibid. p. 32. 92   Ibid. p. 37. 	   39 It is worth noting at this point that corrective justice has the function of keeping social stability, where corrective justice is administered fairly. Justice system stresses the enforcement of law, not from the point of protection of one individual’s right or enforcement against one violator’s conduct, but from the point that if the violator’s conduct is not sanctioned by law, inequity will arise against all other citizens who observe the law and rules of the law. Therefore, by enforcing the law, the gist of such efforts of strong enforcement is to render fairness to the whole society, as such justice brings about one of the two forms proportional reciprocity, whether good or evil93. This force of justice keeps the society in stability motion, as long as the law is enforced to the public good of all members of the society. Enforcement of law has a justifiable higher end for the Chinese society.  (5)  Impartiality as Public Duty  Rationality is the main theme in Max Weber’s philosophical discourse.94 In Max Weber’s analysis of charismatic bureaucracy, as Barry noted, he emphasized impartiality as one of the prime virtues of public officials.95 Public officials, being impartial, carry out their duty straightforward without regard to their private personal interests. Weber insists that the holder of bureaucratic authority must act without hate or passion, without love or enthusiasm. He or she must act impartially according to the rules applicable to the                                                 93   See Thomas C. Brickhouse, “Aristotle on Corrective Justice”, J. Ethics (2014) 18: 187- 205, p. 192. 94   See Stephen Karlberg, “Max Weber’s Types of Rantionality: Cornerstone for the Analysis of Rationalization Processes In History”, AJS, Volume 85, Number 5, 1145.  95   Barry, supra note 89, p. 13. 	   40 position of the bureaucratic office.96  For Weber, bureaucratic authority is based on reason, impartially implemented by trained officials and its future is stable.97 Permanence, rules and impartiality are said to be the three primary features of bureaucratic authority per Weber’s sociology theory of law.98 Rationality is the kernel of Weber’s sociology theory of law.   Teachers who play favoritism by having “teachers’ pets” may be viewed by students as lack of impartiality. Examiners will be expected to examine students on anonymous basis, so as to meet the duty of impartiality. These are perceived by Barry as common-sense impartiality. 99  “Impartiality is relatively easy to achieve if a teacher maintains a distance from all the students and treats them all alike.”100 These examples seem to fall into the first-order behavioral impartiality as defined by Barry.                                                  96   Christopher Adair-Toteff, “Max Weber’s Charisma”, Journal of Classical Sociology, 2005, Vol. 5 (2), p. 193. 97    Ibid. p. 190. 98   Ibid. p. 193. 99   Barry, supra footnote 89, p 14. 100   Ibid.  	   41  (6) Impartiality as Judicial Presumption  Judges are presumed to be impartial.101 In Bizon v. Bizon,102 Mr. Julian Bizon, a famer died on November 25, 2010. His will named his bother, Emil Bizon, the appellant, and his sister, Victoria Bizon, one of the respondents, as the personal representatives of his estate. Mr. Bizon, the co-executor, assumed primary responsibility for selling the testator’s real and personal property. Dispute arose as to how much compensation Mr. Bizon was entitled to, as between the brother Mr. Bizon and the sister, Ms Bizon, regarding costs incurred in the process. The motions judge rejected Mr. Bizon’s claim that he be paid $59,521 for his work as an executor and that his co-executor be paid nothing. In the appeal, the appellant Mr. Bizon alleges that Justice Sulyma was biased. He states in the factum that the “issue in this appeal is whether the Justice treated the appellant with the dignity and without the bias everyone is entitled to in a court or whether she humiliated him, ignored his pleadings and demonstrated unquestioned faith in every argument of the resondent’s [sic] lawyers”.    In analyzing the judicial presumption for impartiality, Justice Wakeling started with the judicial oath that judges take upon appointment as judge. A judge takes an oath to act impartially when they do the function of judging.103 “[Impartiality] is the key to our judicial process and must be presumed”.104 “[P]ublic confidence in our legal system is                                                 101   See Commission scolaire francophone du Yukon no. 23 v. Yukon, 2014 YKcA 4, 76. 102   Bizon v. Bizon, 2014 ABCA 174. 103   Cited in Bizon v. Bizon, Oaths of Office Act, R.S.A. 2000, c. O-1, s. 2.  104   See Wewaykum Indian Band v. Canada, [2003], 2. S.C.R. 259, 288 – cited in Bizon v. Bizon.  	   42 rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so”.105  It was observed that impartiality has several dimensions.  a)  First Dimension – Nature of Relationship  Justice Wakeling observed that there are several dimensions of the concept of judicial impartiality. “One dimension evaluates the nature of the connections the judge has with the parties, the non-party participants in the court process and the questions which are presented for adjudication. Some of these connections may cause a reasonable, right-minded and informed person to conclude that the concept of impartiality is sacrificed if the judge hears the case.”106  Justice Wakeling refers to the “questions which are presented for adjudication” as part of this dimension for impartiality. This seems to relate to what I would like to call “substantive issue bias”, that Justice Wakeling addresses in later of the reasoning as below:  “[55] Some may hold the opinion that a judge who has previously decided a case involving similar issues can no longer be regarded as impartial with respect to                                                 105   Ibid.  106   Bizon v. Bizon. This appears to be provided in the Chinese Civil Procedure Law (Articles 44 - 47), Administrative Litigation Law (Articles 7 and 55) and the Criminal Procedure Law (Articles 28 - 31). Judges need to withdraw from the case if they have certain relationship with the parties or the outcome of the case.   	   43 these issues. If this proposition was a correct statement of the law, the administration of justice would be more complicated….”  The so-called “substantive issue bias” should be weighed against the ability of the adjudicator to judge based on specific context of a case. Judges should be trusted to deal with the specific context of the case and apply the rules of law in such a case. “[A] distinction must be made between a preconceived point of view about certain principles of law or a predisposed view about the public or economic policies which should be controlling and a prejudgment concerning the issues of fact in a specific case.”107   This “substantive issue bias” element of the impartiality, in my view, is relevant to the third dimension that I argue in relation to the outcome of the case, the “substantive justice” dimension, discussed in Chapter III.  b)  Second Dimension  - Conduct of Proceedings  In relation to the second dimension of judicial impartiality, Justice Wakeling states:  “Another dimension evaluates the conduct of the judge at the hearing and cannot be undertaken until the close of the proceedings”. (Bizon v. Bizon)                                                  107   See New Hampshire Milk Dealers’ Association v. New Hampshire Milk Control Board, 222 A. 2d. 194, 198 (N.H. 1966) – cited in Bizon v. Bizon. 	   44 This dimension appears to address the way how the proceedings are conducted, the equality of the litigants and the duty of the judge to treat the parties with equality and dignity at the hearing when conducting the litigation proceedings. As human beings, judges tend to be sympathetic with litigants that share the same or similar beliefs or views with the decision-makers. It is argued that empathy and impartiality may, however, work mutually to the benefit of reasonable adjudication, and judges ought to develop the empathetic skills in their adjudication work.108 This requirement is reflected in Chinese context in the principle of non-emotional conduct and equal treatment to the parties in the litigation proceedings. This principle bears with the duty of the judge to treat the parties equally and fairly, as discussed in Chapter IV.  With regard to the tests for such impartiality, it was held that “[a] person who alleges that a judge is biased must establish on a balance of probabilities that a judge is actually biased or that a reasonable right-minded and informed person would conclude that the judge could not decide the case impartially”.109 This test is the yardstick the court used to evaluate whether the proceedings has been conducted in a biased or impartial manner. Chinese law does not yet develop such tests in civil litigations, but the general evidence rule that who alleges bears the burden of proof will apply.   The presumption of judicial impartiality “is one of the reasons why the threshold for a successful allegation of perceived judicial bias is high”110 By applying these                                                 108   Rebecca K. Lee, “Judging Judges: Empathy as the Litmus Test for Impartiality”, 82, U. Cin. L. Rev. 145, 2013-2014. 109   Ibid. 110   See The Queen v. S., [1997] 3 S.C.R. 484, 533. 	   45 standards, the appellate court in Bizon v. Bizon rejected Mr. Bizon’s argument that Justice Sulyma was biased. The case supports the observation in this dissertation that the dispute resolution process inherently mandates that impartiality is the cornerstone of any process of dispute resolution. 	   46     4. Transcending the Confucian Value  In Confucius teaching, human beings are divided into categories of different social status. Bu Zai Qi Wei, Bu Mou Qi Zheng [不在其位,不谋其政。] [He who is not in the position will not advise on the governance.] Jun Zi Yu Yu Yi, Xiao Ren Yu Yu Li [君子喻于义,小人喻于利。] [Gentleman understands righteousness, while small man understands interests.] Min Ke Shi You Zhi, Bu Ke Shi Zhi Zhi. [民可使由之,不可使知之。] [The governed may be let go, but cannot be led to the knowing.]111  Confucius is based on different social levels of people in a society, particularly the governing class and the governed class. This is part of the reason why Communist theory of class struggle may well land and be planted in the Chinese culture, as the traditional culture also is webbed in two-tier class categorization.   The equality concept is historically lacking in the local texture of the culture.112 Until most recently the rural area has been ruled under a system different from the urban areas.                                                   111   Xu Aiguo, Fa Lv Yu Gong Zheng De Gu Jin Guan Nian Zhi Bi Jiao [Comparison of traditional and contemporary concept of law and justice], People’s Court Daily, July 4, 2014, p. 5.  112    On the contrary, there is an “equality of things” concept from Hsiang Kuo, Commentary that advocates non-distinction of right and wrong. “In order to show that there is no distinction between right and wrong, there is nothing better than illustrating one thing with another. In so doing we see that all things agree in that they all consider themselves to be right and others to be wrong. Since they all agree that all others are wrong, hence in the world there can be no right; and since they all agree that they themselves are right, hence in the world there can be no wrong.” See Fung, supra, footnote 78, p. 227. 	   47 (1)  Hold Thou Truly in the Middle Way  The bifurcation of “gentleman” and “small man” in Confucius teaching illustrates the above point of inequality. The Master said, “The gentleman helps others to realize what is good in them; he does not help them to realize what is bad in them. The small man does the opposite.”113 In Confucian theory, “to govern is to correct”. If a ruler sets an example by being correct, who would dare to remain incorrect?114 These teachings promote the development of the good moral role of the ruler on the one hand, and the assumed corrective authority of the person in power on the other hand. The gentleman is to “(h)old thou truly in the middle way”115, and “(i)f he is impartial, the people will be happy”116.  The corrective authority in modern terms is largely vested with the judges and other adjudicators following Aristotle’s political philosophy of “corrective justice”. The traditional value of the power to correct on the part of the ruling person needs to be aligned with the corrective justice context in civil society, which seeks the equality of human beings under law, with the judges acting as agents of the state to administer justice for the public good of the society.                                                     113    Confucius, The Analects, Book XII, 16, p. 115, supra footnote 1. 114    Confucius, The Analects, Book XII, 17, p. 115, ibid.  115    Ibid., Book XX, 1, p. 158. 116    Ibid., p. 159. 	   48 (2) Doctrine of the Mean  As Confucius said, “Supreme is the Mean as a moral virtue. It has been rare among the common people for quite a long time”.117  Xi Nu Ai Le Zhi Wei Fa, Wei Zhi Zhong [喜怒哀乐之未发,谓之中] (To hold happiness, anger, sorrow and joy means the Mean).118 Confucius teaches the principle of the Mean from non-emotional but rational perspective. One needs to hold one’s emotional status of happiness, anger, sorrow and joy, resulting in non-emotional thinking, reasoning and benevolent behavior.   In analyzing the moderate middle class, Aristotle said: “[n]ow in all states there are three elements; one class is very rich, another very poor, and a third in a mean. It is admitted that moderation and the mean are best, and therefore it will clearly be best to possess the gifts of fortune in moderation; for in that condition of life men are most ready to listen to reason.”119  Rational thinking is the outcome for Aristotle as well as the basis for the Doctrine of the Mean under Confucius teaching.                                                  117    Confucius, The Analects, Book VI, 29, p. 85, supra footnote 1. 118    The Mean, Chapter 1, see Wang Guoxuan, Zhang Yanying, Lan Xu and Wan Lihua, translated, Four Books (The Analects, Da Xue, Zhong Yong, and Mencius), Beijing: Chinese Book Company, 2011, p. 152. 119     Aristotle, Politics, supra footnote 22 p. 168. 	   49  (3) “Time” Element of Impartiality  We all live in time.120 Impartial resolution of disputes must also bear with time elements. Justice is not done if it is done too late. 121 Timely resolution of civil disputes by correct application of law and protection of civil rights and interests of citizens and legal persons are the goal of civil law and the process of civil dispute resolution. 122 Fairness requires the institutions dealing with the dispute resolution to observe the certain fundamental procedural rules in the process and give rational reasoning for protection of rights in the decisions to resolve the dispute in a timely manner.  However, there is time limit for the impartiality of a case. The First Dimension (Relation of the adjudicator to the parties, discussed in Chapter I), and the Second Dimension (Conduct of proceedings, discussed in Chapter I) will extend to the duration of the proceedings when these dimensions of impartiality apply. The Third Dimension (Substantive justice, discussed in Chapter III) also lasts as long as the life of the case. Once the case is closed, the impartiality consideration ends. The Fourth Dimension (Consensus-based impartiality, discussed in Chapter VI) may be easier to understand in terms of time. It ends at the time the consensus or settlement agreement is concluded. If there is issue in respect of the consensus-based impartiality that goes to the validity of the settlement agreement, then it is a matter of contract law that needs to be evaluated based on the contract law                                                 120     The Master said, ‘At fifteen I set my heart on learning; at thirty I took my stand; at forty I came to be free from doubts; at fifty I understood the Decree of Heaven; at sixty my ear was atuned; at seventy I followed my heart’s desire without overstepping the line.’ Confucius, The Analects, Book II, 4, supra footnote 1. 121    Justice delayed is justice denied. The proverb is an old one. C/f: 1215 Magan Carta: To no man will we sell, or delay or deny, right or justice. See Jennier Speake, ed., Oxford Dictionary of Proverbs (6 ed.), Oxford Unversity Press, 2015.  122     Article 2, PRC Civil Procedure Law and Article 1, General Principles of the Civil Code.  	   50 principles.123 A judge’s work is done and the impartiality ends at the end of the case, unless the case is re-opened (like in an appeal procedure or retrial leave granted) according to procedural law. A judge cannot be held accountable for everything in a case in his life. On the contrary, the judge shall be immune from suit for the work related to his function of judging.124  The time element of impartiality also touches on what Rawls calls “inter-generation equity”,125 which means fairness by way of “saving” goes to the next generation when social distributive justice is concerned. In terms of corrective justice, the principled consideration would include what wrong of our former generations need to be corrected in this generation and what possible impact this generations’ activities may unfairly prejudice the existence of next generations on the long run. This is beyond the scope of this dissertation.  Law must have its internal morality, just as justice must have its internal impartiality in the structure of corrective justice. In a two identifiable party dispute, the third-person adjudicator needs to be free from influences from outside the dispute, and act fairly between the parties. Impartiality deals with the subject of how the adjudicator acts at the time when he or she is charged with the role of dispute resolution, a public duty to judge what is right or what is wrong, and to put things in good order, according to                                                 123    See Yang Peikang v. Wuxi Huoli Healthcare Co., Ltd., SPC Gazette, 2009, No. 11, Compilation of IP Cases, p. 592. For more details, please see discussion of this case in Chapter VI. 124    There is no concept of immunity of liabity to protect the judges or arbitrators in China. On the contrary, the Judges Law provides that the judges shall not abuse their authority to infringe the legitmate rights and interests of citizens, enterprise and other organizations. If there is breach, there will be administrative sanctions. If the conduct constitutes an offence, criminal liability will be pursued. See Article 32 (5) and 33 of Judges Law (1995).   125    See Rawls, supra, footnote 85, p. 251,  	   51 law. Therefore, impartiality involves a number of important values such as attitude towards the good or bad, appropriate disclosure of the relationship between the adjudicator and the two parties, professional conduct of fair treatment to the parties, and fair application of the law and evidential rules to the disputes. Judges who conduct impartial duty to administer justice should be protected from suit under principle of immunity of liability for judges.	   52  Chapter II. Why Impartiality Matters in IPR Field?  Intellectual property law is not only a law from one country. It is an area of law flowing from international law to domestic law at the present time. The WTO Agreement and China’s amendment of its domestic laws to comply with the TRIPS Agreement is a good example of such flowing of legal norms.  For foreigners, intellectual property law means protection of their intellectual property rights in the relevant country. For domestic citizens, intellectual property law not only means protection of intellectual property in that country, it also means reciprocity terms when they attempt to own intellectual property in other countries, subject to conclusion of bilateral treaties in trade, investment and judicial assistance areas.   This chapter explores the various reasons why impartiality matters, particularly to the intellectual property field. It includes discussion of the reasons for corrective justice, respecting the intangible value of the intellectual property, the protection of private property, and the reasons for various considerations of impartiality at the constitutional level.    	   53  1.   Corrective Justice  Aristotle considered various important features of corrective justice. First, compared to distributive justice, where the equality is “geometric”, in corrective justice, the equality is based on an “arithmetic proportion”.126  The aim of corrective justice is to restore to the original positions of both the persons who suffered from the harm and the person who gained by committing the harm.127 Infringement of a property right produces a wrongful loss that would need to be cured under corrective justice theory. 128  (1)Proof of Infringement or Harm  Dispute resolution in intellectual property field demonstrates that independence and impartiality are what corrective justice inherently requires for purpose of resolving disputes and achieving good social order. As is stated in Bizon v. Bizon, judicial impartiality is the corner stone of the rule of law in a democracy state.129 In intellectual property field, disputes arise largely due to infringement or harm of certain rule-based intangible rights. Where litigation and arbitration are used, the same theme remains that impartiality works as the corner stick to protect the rule-based rights of intellectual property, both procedurally as well as substantively, under the concept of rule of law. Questions may be posed as to how independence and impartiality of judges, arbitrators,                                                 126    Izhak Englard, Corrective Justice and Distributive Justice, from Aristotle to Modern Times, Oxford University Press, 2009, p. 8. 127    Ibid. 128    See Herdi M. Hurd, “Correcting Injustice to Corrective Justice”, 67 Notre Dame L. Rev. 51, 1991-1992, p. 89. 129   See Bizon v. Bizon, 2014, ABCA, 174. 	   54 and other adjudicators coincide with where the private rights and interests as proved by the rights owners interact at different degrees with public interests involved. In countries where different political parties compete for a governance term, the insurance theory advocates look to the long effect that an independent judiciary might have on those who are charged to seek power. “In other words, the advocates of the insurance theory emphasize that in the long-run the incumbents may have long-term benefits under an independently performing judicial system.”130  In China’s current one Party system, where government agencies are involved in the equation for corrective justice, for example in the case Marlboro (p. 236), the independent judiciary stands in an important position to check and balance the government power (such as the TRAB in the Marlboro case) against market operators in respect of the recognition and protection of intellectual property (well-known trademark in the Marlboro case).  In terms of proof of rights in specific cases, let us take an example from Canadian law.  Canadian trademark law provides that “[n]o person shall direct public attention to his wares, services or business in such a way as to cause or be likely to cause confusion in Canada, at the time he commenced so as to direct attention to them, between his wares, services or business and the wares, services or business of another.”131 The prohibition here is on directing of “public attention” as to cause or likely to cause confusion in                                                 130     Ailyn Aidin, “Judicial Independence Across Democratic Regimes, Understanding the Various Impact of Polical Competition”, Law & Society Review, Volume 47, Number 1 (2013), p. 105    131   Section 7, Trade-marks Act R.S.C., 1985, c. T-13. 	   55 Canada between his wares, services or business and the wares, services or business of another person. Proof of confusion or likelihood of confusion must be available in upholding the prohibition in a specific case where a name or a mark is linked to a ware or a commodity/service.  In Target Brands, Inc. v. Fairweather Ltd., 132 Target, a brand owner from the US owning the trademark “TARGET” or a bull’s–eye design, was in the process of entering the Canadian marketplace, and for this purpose, sought an injunctive relief prohibiting the defendant (who comprises of several brands, including “International Clothiers”, who therefore referred themselves as [INC]). INC acquired the registered trademark TARGET APPAREL when it purchased the assets of Dylex Limited. At the time of the litigation for damages as well as a permanent injunction against INC from using the trade name TARGET or the bull’s-eye mark, INC has opened a chain of clothing stores under the TARGET APPAREL name.  In dismissing the application for injunctive relief, Judge Mandamin J. considered the test of the law for injunctive relief as adopted by the Supreme Court of Canada in RJR-MacDonald Inc v. Canada (Attorney General)133, as follows:  1. Is there a serious issue to be tried? 2. Would the applicant suffer irreparable harm if the injunction were refused? And                                                 132   2011 CarswellNat 2334, 2011 FC 758 (F.C.) 23 June 2011. 133   [1994], 1 S.C.R., 311. 	   56 3. In whose favor does the balance of convenience lie?  The judge found the low threshold for demonstrating a serious issue to be tried has been met by the evidence in the case. However, the judge did not conclude that the applicant TARGET has proved, on balance probabilities, that there will be an irreparable harm to be suffered. In coming to this conclusion, the judge took into account the test for “irreparable harm”, being goodwill, confusion and ability to pay damages, and noted that the threshold for irreparable harm is a high one. The judge identified that “INC is a substantial business venture with the capacity to launch a nationwide clothing store venture”, and ruled that the onus to prove the quantum of damages is with TARGET. The judge said:  “To demonstrate INC would be unable to pay an award of damages, I would expect TARGET to put a real number on the likely quantum of damages, and then rebut INC’s evidence concerning capacity to pay the amount.”  These lines of thinking shows that the judge considered the nuance of evidences of facts according to the tests for “irreparable harm” and addressed the tests fairly and impartially on the burden of proof and its impact on the merits. Impartiality is not only a procedural matter but also a substantive matter.  	   57 By contrast, in a recent Chinese case Eli Lilly and Company v. Huang involving the misappropriation of trade secrets,134 Huang Mengwei was an employee of a Chinese subsidiary of Eli Lilly and Company (together “Eli Lilly”) in Shanghai. During the course of employment, Huang downloaded 48 documents from Eli Lilly’s database, 21 of which were marked confidential. Huang had entered into a confidentiality agreement with the Chinese subsidiary company. When requested to delete these confidential documents, Huang did not do so. Eli Lilly terminated Huang’s employment contract, and then sued Huang on grounds of infringement of trade secrets, seeking compensatory damage of RMB20,000,000. The Court issued an injunctive order in August 2014 in accordance with Article 100 of the Civil Procedure Law (as amended in 2012). In granting the interim relief, the court considered the following elements:  1) whether the alleged harm is occurring or about to occur; 2) whether there would be irreparable harm that could not be compensated by monetary compensation, if the requested relief were not granted; 3) whether appropriate security has been provided; 4) relevant public interest issues.  The first three factors are what the Civil Procedure Law provides under Article 100. In the case, Eli Lilly provided security in the amount of RMB100,000, to satisfy the requirement 3) above. The last element appears to be discretionary standards developed by the court in Shanghai.                                                  134    Eli Lilly and Company v. Huang Mengwei, 2014, Shanghai No. 1 Intermediate People’s Court. 	   58  It is encouraging that the Court analyzed the reasoning in accordance with the above standards. As China does not follow the case precedents, this case is not likely to be a binding case precedent. Like all other important cases, this case however has guiding value as it illustrates the openness of the IP court to grant interim measures according to what the law provides and based on the circumstances of the case. The discretionary authority of the court judges appears to be less restrained, than common law judges who are legally restrained by the case precedents on rules of procedure and rules of substance on the merits of a case. Having said that, it is noted that a converging trend exists for the adversarial common law and the inquisitorial civil law to approach legal application of rules and precedents with similar consideration of legal authority including statutes and legal precedents (whether persuasive or binding). 135  (2) Equality under Law  If we take IP infringement as an example, where there is an infringing act, assertion of IP right against such infringing act aims at achieving the “equality” referred to by Aristotle in his concept of corrective justice. The equality lies in that the IP owner has the benefit of private property of IP rights that are the fruits of his or her labor protected by law. Except as permitted under law, no one may use the IP rights of the owner, without his or her prior consent. If the infringer is not stopped and sanctioned by law, inequality would result in the sense that other persons or citizens who abide by the                                                 135    See Louis F Del Duca, “Developing Global Transnational Harmonization Procedures for the Twenty First Century: The Accelerating Pace of Common and Civil Law Convergence”, Texas International Law Journal, 2007, Vol. 42, 625.  	   59 law and respect IP rights will be put in a disadvantaged position, in comparison to the infringer. Therefore, equality in this sense means fair play and fairness to the general public in enforcing IP laws. “After more than 100 years and constant pressure from foreign governments, Chinese laws related to copyright, trademarks, and patents are acceptable but enforcement continues to leave much to be desired.”136  The equality-based justice extends to the enforcement of all other laws. Where laws are not enforced, it creates inequality among citizens and the violators generate inequality or injustice to the good citizens of a society. Under the social contract theory, the social compact establishes the equality among all the citizens in the sense that all citizens enjoy the same rights and pledge themselves under the same conditions.137 In this sense, enforcement of law strictly according to law is what justice requires in modern civil society.  There are two or more parties involved in an IP infringement claim. The IP owner suffered from infringement and becomes the victim. The subject matter of the dispute between the parties may relate to one form of IP rights (either patent, trademark or copyright) owned by the plaintiff. The plaintiff seeks remedies to stop the infringement and obtain compensation that will either compensate it for the damage it has suffered from the infringement or to restore it to the original position, had there been no infringement.  The purpose of the civil remedy is to protect the rights of the owners and                                                 136    See P. Chaudhry and A Zimmerman, Protecting Your Intellectual Property Rights, Management for Professionals, DOI 10.1007/978-1-4614-5568-4_9, Springer Science + Business Media New York 2013, p. 158. 137    See Rousseau, The Social Contract, supra footnote 4, p. 35. 	   60 to protect the civil order of the society by way of confirming private rights among equal parties.138 This is what justice requires as between equal individuals.    “Good for good, evil for evil” appears to be a “vengeance theory” However, Brickhouse analyses the corrective justice in relation to “proportional reciprocity” and sees corrective justice to operate as “equality” driven, or justice required, not a “vengeance theory”.139 Brickhouse argues:  “When corrective justice cancels gain and loss after an injustice from a voluntary interaction it brings about reciprocal repayment, “good for good,” and what it nullifies gain and loss after an involuntary interaction it bring about “evil for evil.” If so, states of affairs that instantiate corrective justice also instantiate proportional reciprocity. Nonetheless, it is important to see that the two are conceptually distinct and do importantly different work in Aristotle’s political theory. In the first place, goods traded for goods to the satisfaction of both parties are instances of proportional reciprocity but are not instances of corrective justice. Moreover, corrective justice aims at establishing equality between the parties involved in an unjust interaction, and, as we have seen, Aristotle insists that equality of this sort is a kind of justice. Even when it rectifies an involuntary interaction and equalizes the evils suffered, the goal of corrective justice is equality, and thus justice, not vengeance.”140                                                 138    Article 2, Civil Procedure Law.  139      See Brickhouse, supra footnote 93, p. 202. 140    Ibid. 	   61  Equality under law (in Chinese, Fa Lv Mian Qian Ren Ren Ping Deng [法律面前人人平等]) means effectively what justice requires in respect of conduct of the citizens and respect of each human being in modern civil society. It means that laws must be administered impartially and enforced fairly and equally for all citizens, so as to avoid injustice to be done in a civil society. IP laws are good examples to illustrate the application of corrective justice.  	   62   2. Respecting the Intangible Value in IP  (1) Capital Investment to Be Protected Impartially  Intellectual property (IP) is part of the term “investment” as defined to be made by nationals of contracting states under the various bilateral investment treaties, and therefore dispute resolution involving IPRs is subject to international commercial arbitration.  Investment community recognizes the capital value of investment in intellectual property. Almost always, if not all, bilateral investment treaties include definitions of investment that include “intellectual property”. Indeed, since the very beginning of BITs negotiations, IPRs have fallen into the scope of application of international investment treaties. Article 8 of the first BIT signed between Germany and Pakistan reads as follows:  “―(1) (a) The term ―investment shall comprise capital brought into the territory of the other Party for investment in various forms in the shape of assets such as foreign exchange, goods, property rights, patents and technical knowledge “(emphasis supplied). 141                                                  141   Liberti, L. (2010), “Intellectual Property Rights in International Investment Agreements: An Overview”, OECD Working Papers on International Investment, 2010/01, OECD Publishing, p. 6. http://dx.doi.org/10.1787/5kmfq1njzl35-en 	   63 The first BIT of the United States signed with Panama in 1982, in its Article 1(d) provides for a list of assets, including:  “ ―[…] (i) tangible and intangible property, including rights, such as mortgages, liens and pledges; […] (iv) intellectual and industrial property rights, including rights with respect to copyrights, patents, trademarks, trade names, industrial designs, trade secrets and know-how; and goodwill”142  China’s BIT with Germany includes a definition of investment which includes the following: “intellectual property rights, in particular copyrights, patents and industrial designs, trade-marks, trade-names, technical processes, trade and business secrets, know-how and good-will”143. It is clear that IPR is an investment in international investment community.   Driven by China’s entry into the WTO and the recent legal developments in Chinese intellectual property law and practice, investors have been interested in foreign direct investment in China.144 Inward foreign direct investment in China increased from zero in late 1970s to 148 billion US dollars in 2008.145 Different perceptions exist about the IP development and law enforcement in China. Many observers remain skeptical                                                 142   Ibid. 143    See: http://unctad.org/sections/dite/iia/docs/bits/china_germany.pdf 144    See generally Andre Desmarais, “China, Unlike its Famous City, Is Forbidden No More”, in Laurence J Brahm, China’s Century, The Awakening of Next Economic Powerhouse, John Wiley & Sons (Asia) Pte Ltd., 2001, p. 142. 145    See Figure 1-2 “Inward Foreign Direct Investment in China ($billions)”  (Source: World Bank Indicators) in Daniel C.K Chow and Anna M. Han, Doing Business in China, Problems, Cases and Materials, St. Paul, MN: West Publishing, Thomson Reuters, 2012, p. 30. 	   64 about China’s capacity and readiness to protect intellectual property rights owned by foreign persons. Some argue that the United States needs to replace “an overwhelmingly negative message on intellectual property with a positive message”.146 Reasons for these perceptions are varied, which may, to some extent, be related to the complexities of the global IP system built from long time ago. Some relate to legal knowledge and understanding of the current affairs of IP and historical records of IP performance.147 Some are deeply imbedded with the understanding of the ideological framework and traditional cultural image and suggest that collective culture tends to protect collective idea instead of individual ideas.148  Is the question of independence and impartiality relevant and material to the improvement of enforcement of intellectual property in China? Is morality a central issue in the structuring of the IP system?149   I argue that impartiality mandates institutional independence when issues of rights and interests are to be considered between two parties and to be adjudicated by the dispute resolution institution. Judicial independence is not merely the result of modern theory of separation of power,150 but it is a requirement inherently imbedded in the concept of corrective justice.151  Judicial independence is not a uniform standard.152 “In                                                 146     Ibid., p. 395.  147     For example, the misunderstanding of the disposition of Chinese administrative penalties generates misplaced concerns in the literature as to the unavailability of the compensatory remedy to the infringees. See Jennifer Wai-Shing Maguire, “Progressive IP Reform in the Middle Kingdom: An Overview of the Past, Present, and Future of Chinese Intellecutal Property Law”, The International Lawyer, Vol. 46, No. 3 (Fall 2012) p. 902, Also see Rachel T. Wu, infra footnote 193.   148      Garmon, Cecile. “Intellectual Property Rights”, The American Behavioral Scientist 45. 7 (Mar 2002): 1145-1158. 149     “At the most fundamental level, the legal regime for intellectual property must ‘have a coherent moral centre that the public can comprehend and accept’” – See Joost Blom, “Book Reivew, Intellectual Property Law: Copyrights Patents, Trade-Marks, by David Vaver”, UBC Law Review, 1997, Vol. 32:2, p. 365. 150    Montesquieu, The Spirit of Laws, edited by David Wallace Carrithers, Berkeley, Los Angeles, London: University of California Press, 1977,  pp. 116 - 125. 151    In Aristotle’s Nicomachean Ethics, he observed: “[T]herefore corrective justice will be the intermediate between loss and gain. This is why, when people dispute, they take refuge in the judge; and to go to the judge is to go to justice; for the nature of the judge is to be a sort of animate justice; and they seeek the judge as an intermediate, and in some states they call judges mediators, on the 	   65 its most basic expression, however, judicial independence has always referred to the necessity that judicial decision making be free from external pressure or constraint.”153  Unlike real property or personal property, which often exists in the form of physical devices or things, intellectual property is mainly composed of a set of legal rights granted to private owners or holders of intellectual property.154 The scope of IPR is evolving as technology continues to develop. For example, when there will be the right to cloud computing and big data? What property value does an Internet domain name have now? How is the individual’s right to name, personal privacy information reconciled with the business operator’s right to data accumulated in their business in the case of user’s of the corporate services such email services at gmail.com or qq.com? How public information in a sovereign state shall be protected under the private ownership concept of IP? The answers to some of these questions will show that legal developments are at pains to catch up with these technological and social changes.155   In relation to intellectual property, the value created by the creator either through investment (when the creator is also investor) or intellectual labor (when the creator is the laborer) is new value or added value that will be used upon agreement with the user or                                                                                                                                             assumption that if they get what is intermediate they will get what is just. The just, then, is an intermediate, since the judge is so.” See Richard McKeon ed., The Basic Works of Aristotle, New York: The Modern Library, 2001, p. 1009.  152    See Justice Brian W. Lennox, “Judicial Independence in China – The Evolution Continues.” in Adam Dodek & lorne Sossin eds. Judicial Independence in Context, Toronto: Irwin Law, 2010, p. 624. 153    Ibid. 154     See Frederick M Abbott, Thomas Cottier and Francis Gurry, International Intellectual Property in an Integrated World Economy, New York, NY: Aspern Publisher/Wolters Kluwer, 2007, p. 6. 155     See Tzen Wong and Graham Dutfield, eds., Intellectual Property and Human Development Current Trends and Future Scenarios, New York: Cambridge University Press, 2011, p. 11. 	   66 consumer to the mutual advantage of the creator and the user.156 Impartiality is achieved through mutual agreement to the mutual advantage of the parties to the agreement. As a kind of capital investment, intellectual property has original value, regardless whether it is in the form of “surplus-value” or “added value”157 or otherwise, in the economic sense.158 Value is a social relationship between commodity producers that appears as exchange value, a relationship between things.159 Added value should be pursued seriously so that the society at large will grow further in terms of creating new value and new wealth. From intellectual property rights perspective, the reference to “exploitation of man by man” concept deriving from “surplus value” theory appears to have negative effects over development of intellectual property, in comparison with the understanding and knowledge of “added value” of IPR. 160   The term “IPR” includes various forms of intangible property rights, including patents, trademarks, copyrights and trade secrets, and other proprietary rights, and may vary according to local national laws and practice.  Trademarks are recognized as a right in China according to the “first to file” rule.161 A trademark unregistered with the Trademark Office of the State Administration for Industry and Commerce will not be                                                 156   For a Lockean theory-based view of the value of intellectual property, see Adam D. Moore, “A Locken Theory of Intellectual Property”, 21, Hamline L. Rev. 65, 1997-1998. 157    See Daniel Gherasim, “Reinterpretation of Added Value”, Economic Transdisciplinarity Cognition, Vol. XIV, Issue 1/2011, p. 133. 158    Copyright and patent involve the human labor at the brain, in terms of original auhorship and novelty of invention, while trademark is simply founded on “priority of appropriation” or use of the trademark in commerce. See Sheldon W. Halpern, ed., Fundamentals of United States Intellectual Property Law, The Hague, London and Boston: Kluwer Academic Publishers, 1999, p. viii. 159    See Karl Marx, Capital, An abridged edition (ed. By David McLellan), Oxford, 1995, p. 35. 160    It may be worth noting that the Charter of CCP does not expressly have these wording “exploitation of man by man” as in the Constitution. 161    Article 31, PRC Trademark Law (as amended in 2013). See Michael J Moser, ed., Intellectual Property Law of China, New York: Juris, 2011, p. 222. See also Mark A. Cohen, A. Elizabeth Bang and Stephanie J. Mitchell, Chinese Intellectual Property Law and Practice, The Hague, London and Boston: Kluwer Law International, 1999, p. 930. 	   67 protected under Chinese trademark law, except it is a well-known trademark.162 The Patent Law adopts the “first to file” rule as well163, which differs from the first to use rule adopted in the US. According to the first to file rule, the first inventor to file an application for an invention has the right to patent awarded with respect to the invention.  The first to file rule is, however, subject to the priority rule under the Paris Convention.164  According to the Paris Convention, if a patent application for an invention or utility model is first filed in another Convention-member country within 12 months before the filing date in China, the prior filing date will be regarded as the priority date in the PRC.165  In case of design patent application, the relevant priority period is six months under the Paris Convention.166  Copyright protects literary and artistic works that are of original creation by an author and fixed to some form of media. Copyright will attach to works automatically without the need of registration in China.167 Once works are created whether or not they are published, they will attract copyright protection, regardless whether the logo for copyright protection © is fixed on the copyrighted works. There are other rights as of substantive right, including trade secrets, typographic layout design, and new plant variety.                                                  162    Article 13, para 2, Ibid. 163    Article 9, PRC Patent Law (as amended in 2008). See also, Moser, supra note 161, p. 87; See also Mark Cohen, supra note 161, p. 9. 164    Article 29, Ibid. 165    Article 4 A, (1), C (1), Paris Convention for the Protection of Industrial Property (1883). 166    Ibid. 167    Article 2, PRC Copyright Law (as amended in 2010). 	   68 These rights are meaningful property rights to owners of investment if they are properly protected under law. Impartial resolution of disputes involving IPRs must be based on the premise that investment in the various forms of intellectual property is to be protected legally and impartially, without depriving the rights and interests imbedded in each of these forms of intellectual property.  (2) Seeing the Trees as well as the Forest168  As an intangible property right, intellectual property has an affirmative role and defense function. “Ontologically, there is nothing to identify the supposed item patented, copyrighted, or trademarked with, though there is, and very importantly, a term or concept that figures in the specification of the bundle of rights that constitutes ownership.”169 Affirmatively, be it patent, trademark or copyright, the owner has its rights to own, use, assign and dispose of such rights at its own discretion.   Investment community as well as international arbitration community recognizes the value of investment in intellectual property. The intellectual property field has an emerging tendency for unification of law across borders in the globalized commercial community, especially from international arbitration perspective. No doubt, commercial arbitration includes arbitration arising from investment activities.170 Disputes arising from investment in intellectual property are therefore considered part of the commercial                                                 168    Chinese aphorism expressed in a postive way. The original ideom: Fail to see the wood for the trees. Zhi Jian Shu Mu, Bu Jian Sen Lin [只见树木,不见森林。]  See Chinese Chengyu Zijian at http://www.zdic.net/c/a/69/100462.htm.  169   See Michael Wreen, “The Ontology of Intellectual Property”, The Monist, 2010, vol. 93, no. 3, p. 435.  170    Footnote 2 to the UNCITRAL Model Law on International Commercial Arbitration (adopted in 1985 and amended in 2006) includes a definition on the term “commercial relationship” which includes contractual relationship arising from “investment” activities.  	   69 arbitration as well. In that sense, advancing a legal theory for international commercial arbitration to resolve intellectual property disputes under certain unified rules of law, through addressing the right and wrongs as espoused in the corrective justice sense is of utmost current value to the increasingly integrated world economy.   Almost always, if not all, bilateral investment treaties include definitions of investment that include “intellectual property”. Indeed, since the very beginning of BITs negotiations, IPRs have fallen into the scope of application of international investment treaties. As noted above, the first BIT signed between Germany and Pakistan includes the term “investment” to include patents and other technology.171   China’s BIT with Germany includes a definition of investment which includes the following: “intellectual property rights, in particular copyrights, patents and industrial designs, trade-marks, trade-names, technical processes, trade and business secrets, know-how and good-will”172.   The TRIPS Agreement has already set out the ground rules for the unification of laws in relation to intellectual property. However, the limitations under the TRIPS Agreement lie with the earlier conventions on intellectual property rights.173 For example, the Paris Convention for Protection of Industrial Property sets out the principle for                                                 171   See Chapter II, p. 62. 172   See: http://unctad.org/sections/dite/iia/docs/bits/china_germany.pdf 173   Members of the TRIPS Agreement shall comply with Article 1 through Article 12, and Article 19 of the Paris Convention. See Article 2 1, TRIPS Agreement. 	   70 independence of patent according to different jurisdictions.174 Proof of infringement or harm will be subject to the rules of different countries, as a substantive matter.   a) Costs of Formation of Intellectual Property  The costs of intellectual property have everything to do with the intellectual efforts put into the creation process at the outset. The process of creating IP involves a certain degree of investment of monetary resources, planning, time and human energy. In Chinese law, patent is an invention, a utility model or an external design made with innovation, new technology or new design for products, processes or for practical use in society.175     R&D and patent  In a typical R&D project in China involving foreign investment, the foreign investor will commit a substantial amount of capital investment (US$2 million) for the project, which is subject to approval by the Chinese government. Following approval and registration requirement, the foreign investor will need to bring into China the capital investment, technology or equipment appropriate to the size and purpose of the project and set up a lab or a R&D centre to commence the R&D activities. It may recruit local talents in China. The R&D engineering team should make up 80% of the total staffing.                                                 174   Article 4Bis, Paris Convention for Protection of Industrial Property (of March 20, 1883, as latest amended on September 28, 1979). 175   Article 2, Patent Law of the People’s Republic of China (as amended and adopted on December 27, 2008). 	   71 The R&D achievements will, depending on the terms of the investment contract and the employment contract, vest with the R&D centre.  An employment/development contract will specify that the ownership of the R&D results/achievements belongs to the R&D centre, provided that the engineer (i) uses the resources of the R&D centre in the making of the development of the new technology; (ii) makes the development in the course of the employment with the R&D centre; (iii) he or she is appropriately compensated for the employment service-related innovation in respect of the R&D achievements.176   In Harvard College v. Canada (Commissioner of Patents)177, it was noted that in the United States (comparable statistics do not seem to be available in Canada), a health-related biotechnology product on average costs between 200 and 350 million dollars (U.S.) to develop, and takes 7 to 10 years from the research and development stage to bring it to market.178  In answering the question whether it is worthwhile to file patents in China, one would note that Chinese patents, like all other patents, have the function to prevent others from copying a product for as long as twenty years.179 Needless to say, patents once granted become intangible assets owned by the investor/owner, be they State-owned, collective, or private individuals.                                                  176  If not compensated, Chinese law would mandatorily vest certain value in the engineer who developed the patented technology. Where no compensation is made to the engineer through agreement with the engineer, the law requires that patentee to reward the engineer at an annual rate of 2% of the revenues from the implementation of the invention patent, or 10% of the royalties received from licenses to other parties where the patentee licenses the patent to other parties. See Article 78, Detailed Implementing Rules of the Patent Law of the People’s Republic of China (as amended and effective from February 1, 2010). 177  2002 S.C.C 76 (CanLII), [2002] 4 S.C.R 45. 178   Ibid.  179   See Moser, supra note 161, p. 81. 	   72   b) Trademark and Transaction Cost  Design and development of trademarks may seem to be relatively easier as trademarks compose only of word(s), logo or their combinations.180   For example, “Coca-Cola”, the world’s best-known brand, was named by the company accountant in 1886, who, “thinking the two Cs would look well in advertising, pens the famous Spencerian script logo”181.   In the Coca-Cola case, a few years later, in 1893, the Spencerian script logo of “Coca-Cola” was registered with the US Patent Office. Investment in advertising of the “Coca-Cola” brand then increased in budget and scale year by year. In the thirty years from 1892 to 1911, the company increased advertising budget from US$11,000 to over US$1 million.182 The increase in advertising investment in the brand in early days of the brand history effectively supported the growth and success of the Coca-Cola story.   As Posner has observed: “The manufacturer who has invested heavily in a trademark has a greater incentive to maintain quality, and knowing this a rational consumer may be willing to pay a premium for that manufacturer’s brand”.183  The interests of the owner of the brand are strengthened through investment in advertising and                                                 180   S. 12 (1), Trademarks Act, R.S.C. 1985, c. T-13. Also see Article 8, Trademark Law of the People’s Republic of China (as amended and effective from August 23, 1982).  181   See http://www.thecoca-colacompany.com/heritage/pdf/Coca-Cola_125_years_booklet.pdf.  182   Ibid. 183   Richard A. Posner, Economic Analysis of Law, Seventh Edition, New York, NY: Wolters Kluwer, 2007, p. 370. 	   73 the interests of the consumers are protected under the owner’s continuous quality control for the branded products and services.     c) Copyright and Associated Costs and Interests  Our work products are copyright protected once they are reduced to writing. Copyrighted work “must be an original production and that production may be in any mode or form of expression”.184 It is automatically protected as long as the literary works is reduced to original writing. Originality is fundamental for purpose of copyright protection. Intellectual labor, skill and judgment are required in producing copyrightable works. “The exercise of skill and judgment will necessarily involve intellectual efforts”.185 Here, skill means “use of one’s knowledge, developed aptitude or practiced ability in producing the work”.186  Judgment means “use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing the work.”187  The exercise of skill and judgment effectively translates into investment of human capital, time, labor and resources, in economic terms.  In terms of copyright title interests, the law in the UK has it: “the person who undertook the arrangements necessary for the making of the film (that is, normally, the film’s producer, as financial and administrative organizer) was alone accorded the                                                 184   Canadian Admiral Corporation Ltd. v. Rediffusion, Inc., Exchequer Court of Canada, [1954] Ex. C. R. 382. 185   CCH Canadian Ltd. v. Law Society of Upper Canada, S.C.C. [2004] 1 S.C.R. 339. 186   Ibid. 187   Ibid. 	   74 copyright in it”.188  Canadian law presumes that the author owns the copyright unless proved to the contrary. 189   Title registration of a film rebuts the presumption of copyright on the author and the person appearing as the owner of copyright in the title document legally prevails in the ownership claim to the film.190   The analysis of “economic costs” for creation of intellectual property of patent, trademark and copyright demonstrates that the real interests under these rights are the private investment injected into the formation of intellectual property from their owners. Intellectual property receives legal protection for valid reasons: it has initial intangible value in its formation as IP through the investment of financial, human and/or materialistic resources.   (3) Seeing the Two Identifiable Disputants Properly?  The central concern in an intellectual property dispute is the interests involved in the dispute regarding the ownership or use of the intellectual property between two parties. Many disputes arise in the ownership of intellectual property. Examples include trademark disputes, patent disputes, domain name disputes where the grant of the rights is at issue. All these ownership-related disputes will be driven by the economic interests to be tapped on behind the ownership structure.                                                  188   William Cornish and David Llewelyn, Intellectual Property: Patents, Copyright, Trade Marks and Allied Rights, Fifth Edition, London: Sweet & Maxwell, 2003, p. 399. 189    S. 34.1 (1), Copyright Act, R.S.C. 1985, c, C-42. 190   See Circle Film Enterprises Inc. v. Canadian Broadcasting Corporation, S.C.C. [1959] S.C.R. 602. 	   75 According to Levine, philosophically speaking, self-interest has two aspects, one internal and one external. “Internally, to be a self is to establish secure self-boundaries, to know what is internal (self), and what is not (other). We refer to this aspect of self-interest when we speak of knowing yourself. Externally, to be a self means to make your self real in the world, especially the world of other selves. We refer to this aspect of self-interest when we speak of expressing and realizing the self. Both aspects of self-interest are important concerns of justice.”191  A disputant has two aspects of self-interest in a dispute. Where there is a contractual relationship between the two disputants, the dispute will without doubt involve some economic relationship or interests between the two disputants, both externally from each disputant’s perspective. Where there exists no contractual relationship, the disputants may have formed economic interest with each other under each other’s legal rights and obligations. An owner of an intellectual property right obtains the right to enforce its IPR against any others who have used its IPR without prior authorization or without due consideration, but have benefited from such use which resulted in some form of injustice, or loss to the owner of the IPR. Loss suffered by the owner of the IPR needs to be compensated as a matter of justice, which requires giving each its due. 192 Understanding the loss so suffered would help formulate an attitude to respect the rights of the owner of IPRs.                                                  191   See David P. Levine, Self-Seeking and the Pursuit of Justice, Brookfield, Vt.: Ashgate, 1997, p. 14. 192   Aristotle’s Nicomachean Ethics, supra footnote 151, pp. 1010-1013. 	   76 It is important to understand the two parties in legal or administrative proceedings, so as to correctly assess the deficiencies and appropriate remedies. It was said that the administrative penalties imposed upon the infringers by the Chinese patent office should be distributed to the rights owners.193 This view circulating in the China-related literature misunderstood the concepts of administrative penalties and the concept of civil remedies under Chinese law. The former permits the administrative bodies to impose penalties against the infringer based on its infringing behavior, so that such behavior is sanctioned for the public good, and the penalties are to be paid to the state. The legal relationship in respect of the penalty is one between the administrative body and the infringer. The appropriateness of the penalty under such relationship is subject to judicial review under the Administrative Litigation Law. Under the Patent Law and the Patent Implementing Regulations, the two parties to the infringement dispute are free to initiate civil procedure to pursue civil remedies against each other for civil compensation or other civil remedies.194 The administrative penalty procedure and the civil procedure are two separate routes to address the wrong of infringement, and should not be confused in the legal literature.                                                  193   See, for example, Rachel T. Wu, “Comment, Awakening the Sleeping Dragon, The Evolving Chinese Patent Law and its Implications for Pharmaceutical Patents”, 34, Fordham Int’l L. J. 549, 2010-2011, p. 558 (citing Dina Bronshtein, Comment, Counterfeit Pharmaceuticals in China: Could Changes Bring Stronger Protection for Intellectual Property Rights and Human Health?, 7 Pac.Rim. I. & Pol'y J. 439, 445 (2008), stating that “[o]ften, however, infringers just receive a monetary penalty, which cannot be given to the patentees, thus leaving them without any compensation. This view appears to be inaccurate as the Patent Law and the Patent Implimenting Regulations permit the parties to take civil actions to seek remedies of civil compensation, separate from the administrative penalities.). Essentially, administrative penalty is only one remedy to deter infringement through imposition of penalty (which is payment to the state). Civil remedies are available but will require filing of a civil action by the rights owner before the people’s courts. Also see Jennifer Wai-Shing Maguire, “Progressive IP Reform in the Middle Kingdom: An Overview of the Past, Present, and Future of Chinese Intellecutal Property Law”, The International Lawyer, Vol. 46, No. 3 (Fall 2012) p. 902 (citing the same Bronshtein on the same point. There is also another mis-reading in terms of local legislation, where the author, citing [Jessica Jiong Zhou, “Note Trademark Law & Enforcement in China: A Transnational Perspective”, 20 Wis. Int’l L. J. 415, 435-36 (2002)], stating that “local legislatures may enact their own IP laws, resulting in inconsistent IPRs across China”.) 194   See Article 63, PRC Patent Law (as amended in 2009), which provides that for counterfeiting patents, the administrative body may impose a penalty of not more than four times of the illegal gain. If there is no illegal gain, a penalty of not more than RMB200,000 may be imposed). 	   77 (4)  Seeing the Value in Use of Intellectual Property  As an intangible asset, the “benefits” of intellectual property attach to its use following its original formation. Drawing from the concept of “cost and benefit” analysis in law and economics, combined with a sociological approach, we see the economic benefit of use of IP from two angles: (i) the benefit to the private IP owner, and (ii) the benefit to the general public.   It is noted that IP is a balance of individual private interests versus public interests in its use in the market.195 The benefit from the IP owner’s perspective will, in most cases, exceed the cost of the IP out of its initial development.  Fundamentally, IP has a time value in its ownership.196  As a property right protected over a period of time, the owner may allow others to use the IP through royalty-bearing licensing arrangement, which will help increase sales of products and services and protect the revenue stream of the IP over the prescribed period of time.  In the case of a film, while the investment in a film is substantial at the beginning, the benefit of the film over the producer’s life and 50 years thereafter (assuming the producer is an individual) will expectedly exceed the initial cost of the production, so that there is reasonable prospect of return on the investment.197  The potential high value of IP over a longer period of time provides incentives for private investors to put in initial capital investment in the process of formation of IP rights.                                                   195   Posner supra footnote 183, p. 41. 196   Ibid. p. 40. 197   In film investment, there is risk that if the distribution of the film fails, then there is no or limited return on investment. 	   78 Revenues will more likely be generated through use or other transactions involving IP. From marketing perspective, ownership of IP provides valuable marketing effects in local culture context.198 Transactions involving IP expect to include the following:   i) use. IP can be the subject of licensed use by an interested party. Use of IP generates royalties, which become revenue of the IP owner.  ii) assignment or transfer of ownership of IP. Assignment of IP generates return on investment if the value of the IP appreciates as time passes. As IP is an intangible asset, the value of the IP will depend on the business potential and revenue chains arising from the use of the IP, on the basis of the age of the IP involved.  The critical value will lie in the function of the IP, particularly with regard to invention and utility model patent.199  For a trademark, the value is dependant on the popularity of the brand and the volume of sales of the products or services branded under the trademark.  iii) other transactions. This may include collateral transactions where the IP owner uses the IP to secure financings from local banks, estate inheritance, pledge of IP rights, auction of IP rights, and donation.  Seeing the values in the use of the IPRs will help resolve disputes involving IPRs in both contractual framework or non-contractual infringement settings. In the contractual                                                 198   For the argument that culture matters in business management, please see generally, David K. Tse, Kam-hon Lee, llan Vertinsky, & Donald A. Wehrung, “Does Culture Matter? A Cross- Cultural Study of Executives' Choice, Decisiveness and Risk Adjustment in International Marketing”, Journal of Marketing, Vol. 52, No. 4 (Oct. 1988), pp. 81- 95.  199   On the materiality of the intangible, please see Alan Pottage and Brad Sherman, “On the Prehistory of Intellectual Property”, in Helena R. Howe and Jonathan Griffiths eds., Concepts of Property in Intellectual Property Law, Cambridge: Cambridge University Press, 2013, p. 25.  	   79 framework, all rights are granted under a contract between the owner and the user. Exceeding the permitted use under a license will result in overlapping of findings of infringement and breach of contract. In the case Shihlin Electric Corporation v. TRAB and Zhenjiang Shihlin Electric Co., Ltd, discussed in Chapter IV, illustrate the unauthorized registration of a trademark beyond the terms of the distributorship agreement is an example. Remedies for infringement and breach of contract might differ, and impartial resolution of such disputes require consideration of the totality of the circumstances of the infringement and breach and weigh the substantive remedies available under law under infringement theories or under breach of contract theories.     	   80   3. Strengthening Protection of Private Property  IP ownership is obtained in several situations, including a purposeful investment.  The owner may also choose to extend its patent to China through the Patent Cooperation Treaty, under which the owner will be entitled to a priority right over 12 months from the date of filing of the patent in his home jurisdiction, when it applies for the patent in China, without risk losing the novelty of the patent.200     (1) A Territorially Based Property  IP is a property right owned by private persons (natural persons and legal persons) under a national law. It is also the case, as private ownership of property is becoming popular phenomena in China.201 Protection and enforcement of IP law is a local law matter. As a local law matter, the value of IP depends on the strength of the local law and the enforcement system. This is because a strong law enforcement system brings with it the predictability and certainty that the system provides in respect of rights and their protection. In a loose enforcement system, the rights are not clearly defined, and their protection is less secured as there might be various social or political factors that cuts away the power of law enforcement in practice, and leaves the rights in limbo status,                                                 200    Article 8, Patent Cooperation Treaty. 201    See Shaoming Li, Ilan Vertinsky and Dongsheng Zhou, “The Emergence of Private Ownership in China”, Journal of Business Research, Vol. 57, Issue 10, October 2004, pp. 1145-1152. 	   81 unprotected, and therefore unattractive to persons who want to own rights in these jurisdictions.   The rule of territorial jurisdiction derives from the provisions of the Paris Convention in 1883.202 It has been operating under that basis for the past one hundred and thirty years. It is expected that the system of territorial jurisdiction will continue in the foreseeable future. IP rights owners look to the domestic law of a nation state to grant protection and enforcement of the IP rights in that state. As domestic law is the basis for legal protection of IP rights, international law and rules are built as legal support rules in support of the protection of local rights under local law, since the web of international conventions and doctrines for the protection of IP rights have been woven surrounding the basic structure of national law.  The validity of IP needs to be determined under a national law. Enforcement of IP follows where the IP right is valid, but the strength of enforcement system affects the value of the IP rights. If it is a strong legal system what has a reliable enforcement system in protecting IP, the value of the IP in that jurisdiction is more significant than that in a relatively loose law enforcement system.   The mechanism of enforcement may vary from country to country. Some countries may rely solely on its court system for purpose of enforcement; others may have administrative enforcement, policeman enforcement, customs enforcement and                                                 202    See generally, Joost Blom, “The Private International Law of Intellectual Property” (2010), 26 C.I.P.R. 67. 	   82 other type of non-juridical enforcement, in addition to juridical enforcement. China follows a non-juridical enforcement side by side with its civil judicial enforcement, which I will discuss in Chapter IV in detail below.  (2) Facilitating Global Flow of IPR  There is another perspective associated with impartial resolution of IPR disputes: one that is from global perspective. This perspective has two limbs: one is a look from foreign countries, to examine how the Chinese system protects in an impartial manner foreign ownership of IPR in China; and the other is a look from Chinese perspective to examine how the foreign jurisdictions may reciprocally protect Chinese ownership of IPR in these foreign countries. Why is this two-way perspective important? This is because IP system is globally structured under the European system as reflected in the Paris Convention and Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) that IPR of one country is independent of IPR from another country.203 In other words, IPR is territorial based in terms ownership and protection. Because of this system, and because of the nature of cross-border IPR naturally flowing from this territorial structured system, and because IPR is essentially a private right owned by entities and individuals, the assets placement of IPR presents a grid-type of system to be connected with each other so that the world becomes more integrated in terms of needs for private property protection than what politicians may see from                                                 203    Article 4 Bis (1) Paris Convention provides: Patents applied for in the various countries of the Union by nationals of countries of the Union shall be independent of patents obtained for the same invention in other countries, whether members of the Union or not. This is considered to be the source of territorial principle of IPR. Trademarks are subject to similar rule under Article 6 of the Paris Convention. See discussions in Abbot, et al., International Intellectual Property in an Integrated World Economy, supra footnote 154, p. 65. 	   83 diplomatic and political point. The Transpacific Partnership Agreement (“TPPA”), for example, builds on the new partnership among countries around the Pacific Ocean, and includes new standards on human rights protection, IPR protection and environmental protection standards. In terms IPR, it is credible that the TPPA aims to achieve higher level of IPR protection from investors’ point. It cannot, however, exclude the commercial use of IPR across borders around emerging markets around the Pacific Oceans, as ownership and use of IPR builds on the existing system of recognition and enforcement of foreign rights from the Paris Convention, the Berne Convention and the TRIPS Agreement.   To the extent IP rights are publicly searchable, such as trademarks and patents, they are transparent in terms of what they are and how they are composed. For example, we can publically search all the patents and trademarks owned by a foreign or a Chinese organization through the search engines available at the website of the State Intellectual Property Office (SIPO) or the State Administration of Industry and Commerce (SAIC). Another example is to illustrate Chinese ownership of IPR in foreign jurisdictions. I look at the trademarks filed by Haier Group Corporation in the US. Haier starts as a producer of lighting products and refrigerators and now is a conglomerate company in the business line of electronic products with sales offices around the world. The search for the trademark “Haier” shows that there are 9 records of trademarks on the database of United State Patent and Trademark Office (USPTO), three of which are shown to be “dead” for reasons of “cancellation or abandon”. The trademark “Haier” (海尔) is recorded to be owned by Haier Group Corporation, with its head office in Qingdao, China, in 	   84 international classes 6, 8, 10, 11, 12, 14, 16 17, 20 ,21 28, 37 etc.204  Haier also has its trademark “Haier” registered in the EU in the same classes through international filings under the Madrid Agreement. 205  The example shows that trademark owners may own intellectual property right in their trademarks recognized and registered in different countries in the world, depending on where their trade and investment activities are conducted in the globalized economy. The impartial resolution of IP disputes system may prove to be of use to the trademark owners if they may resort to international arbitration to resolve their disputes with local parties in the foreign jurisdiction, as such may be more friendly than the local courts to pursue their rights and the arbitral awards are enforceable under the New York Convention in countries where the losing party has assets.  The concept of international IPR is more contemporary concept when the world becomes more integrated and when the World Intellectual Property Organization was established.206 IPR is international in the sense that there are many international treaties in IP field and many international organizations like WIPO administers the international law reflected in these treaties.207  It is arguably an accurate depicture of the status of affairs when one looks at those cross border IPR as international IPR. Certainly there are businesses or persons that only own IPR and use IPR in one jurisdiction but there are more and more use of IPR in different regions and jurisdictions.                                                   204    Trademark searches can be done on-line through the US Trademark Electronic Search System at: http://www.uspto.gov/trademarks/index.jsp  205    See search results through the search at: http://www.wipo.int/romarin/detail.do?ID=1  206    For discussion of globalization and intellectual property, please see Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law, Cheltenham, UK; Northampton, MA: Edward Elgar, 2008, pp. 3- 22. 207    For discussions of international intellectual property as a discipline, see Frederick M Abbott, et al, supra footnote 154, p. 2. 	   85 While IP seems to be a global trade issue, having the character of international, cross border, or global reach, it is unfortunately very local property according to national laws. As an example, Google is a US company with its trademark “Google” used and registered in the US first, and then flowing to other market with the growth of the search engine business at its website www.google.com. The trademark “Google” was not protected in the case involving “google.com.cn” in which the pirate domain name was first registered in China.208 The Chinese expert decided that Google has no trademark registration in China, therefore it does not have locally protectable rights in the complaint procedure against the registrant before the China International Economic and Trade Arbitration Commission (CIETAC). There is an outstanding issue whether the “Google” was well-known in China such that it deserves the protection as a well-known trademark in China (through global protection as a foreign trademark under the Paris Convention). In that case, this issue was not considered at the time, largely because the search engine company has not yet fully started its search business across the Chinese consumers, particularly in Chinese language. Therefore as a trademark it is essentially a right derived from US law since it is a US trademark. It is not protected as of right in China unless and until it is registered as such a right in China.                                                    208    The case was published in CIETAC website: www.cietac.org. 	   86   4. Raising the Bar to Constitutional Level  (1) Updating Constitutional Standards  As discussed in Chapter III, judicial independence is not unknown to China as its Constitution already has provisions that require independent trial by the judiciary in handling trial matters, free from any interference from other institutions or individuals.209 The concept has been written into the PRC Constitution since 1954, and has been pivotal in setting the organizations of the Chinese court system in place ever since.   However, judicial independence is not the goal, but only a means to the goal of impartial dispute resolution. The relationship of judicial independence and impartiality is explored in detail in the next Chapter. Given the goal of impartial dispute resolution, the Constitution, being the social contract between the governing group of people and the governed people, which is considered as the fundamental and supreme law of the land, should provide that the impartial trial and dispute resolution is the goal for the court, rather than “independent trial”. The relevant term of independent trial (Du Li Shen Pan) [独立审判] should ideally be amended and replaced by the term “independent and impartial trial” (Du Li Gong Zheng Shen Pan) [独立公正审判]. This “independent and impartial trial” mode implies that the court must be independent (as a relative concept). Institutional independence of the court, coupled with compliance of professional and                                                 209    Article 126, PRC Constitution. 	   87 ethical rules, will help achieve the goal of “impartiality” in the trial process. By reference to the Confucius adage, if the court is impartial, the common people will be pleased. 210  (2) Making an Express Constitutional Commitment  Since IP is a created right that is owned by the creator and/or owner, such right is to be used through authorization by the owner. Authorization is a modern concept that is attached to property rights owned by citizens. While China has plans for development of its IPR system, the Constitution lacks provisions on IPRs. There are three provisions that touch on the wording “intellectual” (知识).In paragraph 10 of the Preface, the Constitution states that socialist construction cause requires the united efforts from workers, peasants, intellectuals and all other forces that can be united. The State develops natural science and social science, popularizes science and “technical knowledge”, and rewards scientific research achievements and technical inventions and creations.211 The State trains all types of talents to enable their services to the socialist cause, expands the team of intellectuals, and creates conditions to fully utilize their roles in the construction of socialism.212 While the State promises to reward “scientific research achievements and technical inventions and creations”, it can make further legal commitments in the Constitution to protect the property rights imbedded in the various types of intellectual property rights. Although there is already a clear provision for protection of citizen’s                                                 210    Confucius, Analects, Book XX, 1 [敏则有功,公则说][Efficiency results in achievements; impartiality brings about happiness of the common people.] , supra footnote 1. 211   Article 20, PRC Constitution (as amended in 2004). 212   Article 23, PRC Constitution (as amended in 2004). 	   88 private property under the Constitution213, an express constitutional commitment for protection of IPR will, no doubt, raise the global attention to China’s commitment to protection of IPRs and also facilitates the strengthening of protection and enforcement of IPRs in China.  International treaties effectively give international arbitration tribunals established according to agreed arbitration rules the jurisdiction to deal with IPR-related investment disputes, including disputes regarding whole-sale deprivation of IPRs by the hosting state.214 Constitutional commitment to protection of IPRs will not only raise the level of protection domestically about IPRs in China, but also give confidence to investor community about investment in IPRs in China, as such investment will likely be subject to international arbitration as a forum for dispute resolution, in addition to dispute resolution through domestic administrative law and other procedures.   Impartial resolution of disputes is basic needs of all modern societies. If disputes among citizens are properly resolved, a society grows in peace with citizens’ rights and property fairly protected and with wrongs and damages to property duly sanctioned under law. While intangible in nature, IPR is a form of private property globally recognized under international treaties and conventions. China adopted such treaties and conventions under international law, which stands in line with practices of other nation states. Under its domestic law, China protects IPR through its General Principles of Civil Law                                                 213   Article 13, PRC Constitution (as amended in 2004). 214    Santiago Montt, State Liability in Investment Treaty Arbitration, Global Constitutional and Administrative Law in the BIT Generation, Oxford; Portland, Or.: Hart Pub.., 2009, p. 12. 	   89 (GPCL)215 and other specialized IP laws (such as Patent Law, Trademark Law and Copyright Law), protecting “private property” in the common sense of these terminologies. Such private property rests on the values that were injected into the property when IPR were formed in its original form. Recognizing such IPRs means recognizing the hard labor and intellectual property efforts of the respective owners of IPRs. This is a practice flowing from the Lokean theory, different from the Marxism theory. Turning to the application of ancient Greek philosophy of corrective justice, one would understand the value of the corrective justice concept in addressing the wrong and granting appropriate remedies to the right holder whose right has been infringed upon in a two-party legal relationship of an IPR dispute. Constitutionally speaking, it is advisable to upgrade the standards for independent and impartial resolution of disputes and to make a high level commitment for protection of intellectual property right.                                                 215  The GPCL sets out the civil rights on the basis of equality of citizens (natural persons) and legal persons. The Property Law was a compromise between the constitutionally based public ownership system and the GPCL-based private ownership equality-based system, resulting in express terms on State-ownership, collective ownership and individual ownership. See Jiang Ping, “Equality is the Core of Market Based Rule of Law” [ 平等是市场法治的核心], China Private Economy of Schience and Technology, 2012, 6-7, p. 33. Note that IPR ownership is based on GPCL principles adopted in the special laws such as patent law, trademark law and copyright law.   	   90  Chapter III.  Does “Independent Trial” Hold the Standards for Impartiality?  In the common-law countries, civil trials are mostly conducted by way of adversarial system, while in the civil-law countries, the inquisitorial mode is more widely used. Are these processes involving same standards for independence and impartiality, when the role of the decision-makers differs slightly? Do Chinese judges have certain degree of subjective space for impartiality? If so, what can be done to minimize the level of subjectivity in these cases, so as to maximize the degree of legal certainty and predictability of rule of law?   These observations touch upon the standards for impartiality, which we will explore further in this and the following chapters.  1. Trial Processes  The concept of independence and impartiality has a lot to do with the chosen mode of trial. “It is intrinsic to the nature of adversary trial that it is rights ‐ based. It emerged in early eighteenth century England as the right of prisoners to engage counsel to assist in their defense in felony trials. Once established it quickly spread to countries where the common law had been introduced— usually English colonies, including those in North America. It contrasts with the Roman ‐ canon inquisitorial system in operation in other parts of the world, particularly Europe. Differing from the battle between 	   91 opposing counsel in adversary trial, the continental system imposed on the judge a duty to inquire into the circumstances of the case with a view to uncovering the truth. In fact, his powers were so extensive that his authority had to be limited by evidentiary strictures under which, according to Stephan Landsman: he could convict a criminal defendant in only two circumstances: when two eye witnesses were produced who had observed the gravamen of the crime, or when the defendant confessed. Circumstantial evidence was never sufficient in itself to warrant conviction. These evidentiary rules made it impossible to obtain convictions in many cases unless the defendant was willing to confess. Roman-canon process authorized the use of torture to extract the necessary confessions. Thus, torture became a tool of judicial inquiry and was used to generate the evidence upon which the defendant would be condemned.” 216  (1)  Adversarial Process  The word “adversarial” has the meaning of “adversary” or “having antagonistic parties or opposing interest”. [Webster dictionary] The term “adversarial system” is a common-law term used to mean the fact finding and legal debate procedure where the advocates represent two parties in antagonistic manner before a third impartial person, for the latter to find the truth of the matter through the competitive presentation by the two parties. 217 In the adversarial system, the parties present facts and evidence in a                                                 216    Hostettler, John, and Chris, Bazell. Fighting for Justice: The History and Origins of Adversary Trial. Hook, GBR: Waterside Press, 2006. 217     See generally, Amalia D. Kessler, “Our Inquisitorial Tradition: Equity Procedure, Due Process, and the Search for an Alternative To the Adversarial”, 90 Cornell L. Rev. 1181 2004-2005.  	   92 competitive way218, such that the judge will be able to see clearly whose version of fact is more probably truthful and acceptable, and at the same time less likely to be influenced by the judge’s own prior knowledge and experience.219 In a typical adversarial process, the case is organized and propelled at the sole initiative of the parties, before a passive decision-maker who makes decisions solely based on the evidence and motions advanced by the litigants.220   In the adversarial system, the civil process develops through the dynamic of the partisan presentation, with the judge taking a “passive and neutral role” in hearing the case. “The truth of the case cannot be searched directly by the judge, but shall instead emerge through the dynamic of the process, with the partisan presentation of the facts”.221  The judge administers the process of the trial and permits the parties to present their respective cases of facts and law from opening to closing of the hearing, with no duty to take initiative to collect evidence or otherwise seeking the truth of the facts on its own so as to appear to be impartial. What does this adversarial system offer to the unrepresentative party to the proceedings? In a recent BC Court of Appeal case, where the trial judge went out of his way and “made his own comparison of the known and latent prints, identifying “differences” that had not been put to the expert witness”, it was held that the judge erred in locating and using material that was in the nature of opinion but was not evidence in the trial. “By doing so he effectively assumed the multi-faceted                                                 218     Some opponents take this competitiveness as leading to judicial “gaming” at the expense of justice.  See Allan Lind, John Thibaut, and Laurens Walker, “a Cross Cultural Comparison of the Effect of Adversary and Inquisitorial Processes on Bias In Legal Decisionmaking”, Virginia Law Review, Vol. 52, March 1976, No. 2, p. 271. 219    Ibid. p. 273. 220    See Francesco Parisi, infra footnote 224, p. 194. 221    Ibid.  	   93 role of “advocate, witness and judge”, and so compromised the appearance of judicial independence essential to a fair trial”.  The judge erred in making his own comparison unassisted by expert evidence. As a result, the verdict is set aside and a new trial is ordered.222  (2)  Inquisitorial Process  The inquisitorial process originates from the Civil Law countries.223 Inquisitorial system of procedure means that the judge is dominant in the trial process by way of directing the fact-finding order and evaluation of the evidence presented by the parties.224 As noted above, in a typical adversarial process, the case is organized and propelled at the sole initiative of the parties, before a passive decision-maker who makes decisions solely based on the evidence and motions advanced by the litigants.225 The key difference of the inquisitorial approach and the adversarial approach lies in the role of the judge.226 In the inquisitorial system, the judge is empowered to search the facts and conduct fact-finding through evaluating the evidence without being bound by formal rules of evidence,227 while in the adversarial process, the judge is rather passive in hearing the parties.                                                  222    R. v. Bornyk, 2015 BCCA, 28. 223     Laverne Jacobs and Sasha Baglay, ed., The Nature of Inquisitorial Processes in Administrative Regimes, Global Perspectives, Farnham, Surrey, England: Ashgate Publishing Company, 2013, p. 1. 224    Francesco Parisi, “Rent-Seeking Through Litigation, Inquisitorial and Adversarial Systems Compared”, International Review of Law and Economics, 22 (2002) 193-216, p.  193. 225    Ibid, p. 194. 226    Ibid. p. 193. 227    Ibid., p. 196. 	   94  Does the judge have the discretionary authority to interpret the law openly to allow the parties to debate on issues that were not addressed by one of the parties?  This question is raised in view of judge’s discretionary authority to manage the substantive issues in a civil dispute, through the so-called “Clarification Right”. This concept comes from continental law in Germany, the “Aufkaungsreckt”, where the judge asks questions to clarify in favor of one of the parties who is not aware or cannot see the relevant issues in the dispute.228 For example, in a trademark dispute, the party who has no knowledge of the infringing nature of the product will be free to liability of trademark infringement if it can show that the products were obtained through legitimate means and can provide information as to the source of the supply. 229An administrative order for cessation of the selling may be imposed in such situation, but no other civil remedies including civil damages are legally available. 230  If a defendant who is not represented by legal counsel in the proceedings does not know the legal provisions in favor of its defense, does the judge have the discretion to “enlighten” the defendant by explaining the law to the defendant to enable him to understand the legal defense and limitations to the claim of trademark infringement?                                                  228    The German Code of Civil Procedure sets out exceptions to the principle of party representation. One exeption is that the courts must provide clarification, are obliged to warn or put questions to the parties in respect of unanswered questions, or in order to give directions of the pleadings. See Dr. Anke Freckmann and Dr. Thomas Wegerich, The German Legal System, Sweet & Maxwell, 1999, p. 143.  229     Article 60, PRC Trademark Law, newly amended and passed on August 30, 2013, and effective from May 1, 2014. 230     Article 64, para 2, PRC Trademark Law. 	   95 Judges have positive and active roles in directing how the civil procedure should unfold in a case. In civil law countries/jurisdictions, judges are empowered to take evidence in certain situations and examine witnesses directly. For example, in Quebec Civil Procedure, the judge may, during the trial, order that the court go to the scene in order to make any observation which may assist in the determination of the case, and, for this purpose, he may make such orders as he considers necessary.231 In relation to small claims, at the hearing, the judge, who himself examines and cross-examines, gives equitable and impartial assistance to each party so as to render effective the substantive law and to ensure that it is carried out.232 According to the current Chinese practice, the judge may act to clarify certain evidential rules in the civil procedure. For example, where a party does not acknowledge or deny the existence of certain fact, after the judge explains the implication of such acknowledgement or denial, the party still does not express itself clear, the evidence rules allow the judge to draw the conclusion that the party acknowledges the existence of such fact. 233 Take another example that often needs the court to exercise its “Clarification Right”. If a party raises a claim that is not properly based on the facts found by the court, the court may “enlighten” the party to amend its claim, in order for the claim to be based on the facts in the case. 234  In practice, judges tend to provide clarification to the parties with respect to legal concepts in civil                                                 231     See Article 290, Quebec Code of Civil Procedure 1999-2000.  232     See Article 976, Quebec Code of Civil Procedure 1999-2000. 233     Article 8, Supreme People’s Court’s Provisions on Evidence in Civil Procedure, adopted on December 6, 2001, and effective April 1, 2002. 234     Article 35, para 1, ibid. 	   96 proceedings when they see and prevent consequences of acts of parties from arising, where such acts are not appropriate or incorrect.235   Is this “clarification right” used by the judges in common law jurisdictions?  In common law jurisdictions, the judges are rather passive in relation to facts finding. It is the parties who need to prove their case, and the court is to hear the parties’ presentation of their cases, taking a neutral and impartial role. The judge directs on the procedural progression of the case but the facts will need to be proved by the parties according to formal rules of evidence. 236 There is a line to be drawn as to whether the judge may question the parties on the facts of the cases. If the parties are duly represented by counsel, judges will defer to counsel to deal with their witnesses and presentation of their side of the facts. In 0927613 B.C. Ltd. v. 0941187 B.C. Ltd., a recent Court of Appeal case in British Columbia237, it was held as follows:   “[65] [I]n the context of a court proceeding, the Canadian Judicial Council in its Statement of Principles on Self-Represented Litigants and Accused Persons, (Ottawa: Canadian Judicial Council, 2006) mandates fairness so as to ensure “equality according to law” in the sense of giving every litigant a fair opportunity to present their case. It also, however, imposes an obligation on self-represented                                                 235    See Wu Shujian, President of Guangzhou Municipal Intermediate People’s Court, “On Perfection of Protection Mechanism for the Weaker Parties in the Civil Procedure in Our Country”, in You Wei and Zheng Shaohua, eds., People’s Livelihood and Judicial Impartiality, Shanghai Finance and Economics University Press, 2009, p. 45. 236   Cf: The recent Opinion of the Supreme People’s Court Concerning Further Work on Providing Judicial Convenience and Benefits to the People (promulgated on March 4, 2015, Fa (2014) No. 293), whereby the Supreme People’s Court directs that the judges should, subject to ensuring due process, enlighten and provide assistance to the unrepresented parties to the proceedings with respect to procedural matters. 237    2015 BCCA 457 (Canlii), <http://canlii.ca/t/glzjb>.  	   97 parties to be respectful and familiarize themselves with the relevant practices and procedures of the court process. These principles, in my view, apply equally to the arbitration process. While some latitude is to be given to self-represented parties who may not understand or be unfamiliar with the arbitration process, an arbitrator, like a judge, is not required to ensure that a self-represented party participate in a proceeding if that party chooses not to do so. In short, an arbitrator does not have any special obligations to a self-represented party beyond the natural justice requirements owed to any party. The overarching test is fairness”.  The case dealt with the question whether an arbitrator has “failed to give sufficient guidance and assistance” to an unrepresented party. The Court of Appeal concluded that the arbitrator, like a judge, does not have more duty towards a party beyond what natural justice basically requires, in terms of “an impartial arbitrator, notice, an opportunity to tender evidence, make representations, and to respond to the other side’s case”.238   In adversarial process, the parties have their control of the process, in a competitive manner, so that the truth emerges through the parties’ presentation of the facts of the case. 239 In jurisdictions where the inquisitorial process is largely used, the court has a larger role of investigation of facts of the case. In specific civil proceedings, such as concerning family or parent and child cases, the court in Germany follows the principle of investigation where all true facts of the respective case are to be stated and                                                 238    Ibid. 239    Francesco Parisi, supra, footnote 224. 	   98 established, and as such, the court is legally obliged to investigate into all facts of the case.240  (3)  Features of Chinese Trial Process  As noted above, traditional Chinese culture has the classification of different persons of social respect. Confucius has the concept of ren, which starts with the love of the parents. “The greatest love for people is the love for one’s parents”241.  Confucianism advocates social relationship based on rituals. As Mencius has it, there is filial relation between father and son, righteousness between gentlemen and subordinates, subservience between husband and wife, priority between elder and younger brothers, and faithfulness between friends (父子有亲,君臣有义,夫妇有别,长幼有序,朋友有信).242   These relationship starts with that between the father and the son, resulting in a traditional society which is basically paternalistic. The father and son, husband and wife, elder and younger brothers’ relationships are all based on familial relationship. The gentlemen and subordinates and the relationship among friends are external to family relations, which form part of the societal relationship among human                                                 240   See Freckmann and Wegerich, supra footnote 228. 241    See Doctrine of Mean (Zhong Yong). Cf.: Kant observes that “the duty to promote the happiness of others may be restricted by the duty to help, assist and love one’s parents”. See Georg Cavallar, Kant and the theory and practice f international right, University of Wales Press, Cardiff, 1999, p. 3. 242    Meng Zi Teng Wen Gong Shang 《孟子  滕文公上》. Also see Zhai Tongzu, Chinese Law and Chinese Society, Beijing: The Commercial Press, 2010, p. 318. 	   99 beings. It is said that Confucian family relationship is a “highly elastic entity”, and its spirit of love relationship can be extended to far away from home.243    The concept of state, family and individual have also been early developed in the Confucius teachings: Tian Xia Zhi Ben Zai Guo, Guo Zhi Ben Zai Jia, Jia Zhi Ben Zai Shen (天下之本在国,国之本在家,家之本在身)(Under the Heaven is the core of the State; the core of the State is the family; and the core of the family is the individual.)244 The ruler is the one who can see things others do not, and can be exemplary for others by virtue of his moral vision, character and norms he set for others.245 Among those relations, only friends are set on identity-based equal footing. The individual is considered the core of the family and further the core of the State. While the people are recognized as precious in Confucius teaching246, political and social order of traditional Chinese society largely depends on the quality and moral influence of those who are in power.247  This cultural element is imbedded in the operation of the civil procedure in the long past. In Chinese history, the trial judges were part of the governing teams of the emperor. Modern civil procedure law was considered, as part of the law transplantation, to be transplanted from European countries. 248  Tang Dynasty has the Tang Laws, Song                                                 243    Joseph Chan, “Territorial Boundaries and Confucianism”, infra, footnote 455, p. 92. 244    Meng Zi, Li Lou Pian Shang Chapter 5. 245    Randall P. Peerenboom, China’s Long March Towards Rule of Law, Cambridge, UK; New York: Cambridge University Press, 2002, p. 33. 246     Min Wei Gui, She Ji Ci Zhi, Jun Wei Qing (民为贵,社稷次之,君为轻。)(The People are most precious, the State comes next, and the Emperor is the least.) Mencius, Jin Xin Pian Xia, Chapter 14. 247     Supra note, 243. 248     Na Si Lu, History of Chinese Trial System, Shanghai Joint Publishing Company, 2013, p. 1. 	   100 Dynasty and the Song Laws, Yuan Dynasty the Yuan Laws, Qing Dynasty the Qing Laws. 249  In the long development of Chinese history, there were gradually formations of three judicial arms working under the direction of the emperor. 250 In the Zhou Dynasty, the role of 司寇 (Sikou) acted as the judge at the central level. “秋官司寇,掌帮禁”(The judge role Si Kou was charged with the prohibitions of the state”.251    In the Qin Dynasty, which united the states of China, the role of central judge was named 廷尉 (Ting Wei). 御史大夫 (Yu Shi Da Fu) was the highest supervisory body of the Qin Dynasty, and also at the same time a judicial organ for trial of special cases.252 Up until Han Dynasty (Xi Han and Dong Han), the roles of 三公尚书 (San Gong Shang Shu) and 二千石尚书 (Er Qian Shi Shang Shu) were charged with trial functions, which were also directed under the emperor.253    a) Appropriate Disclosures   The above brief description shows that there were trial functions under the Emperor in the old dynasties of China. Because of the influences from Confucian teaching on loving the parents, including parents in the traditional family sense and “parent” meaning emperor and officials of the government, in modern terms, the role of the judges to stand independent and impartial would need to be studied from such                                                 249     Ibid., p. 2. 250     Ibid., p. 16. 251     Zhou Rituals, quoted by Na Si Lu, ibid., p. 16. 252     Ibid., p. 16. 253     A brief of development of the three roles of judicial functions were provided in Na Si Lu, ibid.. 	   101 contexts. Judges have been historically considered to be part of the government of the Kingdom. Modernization requires the judges to separate themselves from the traditional value of being “parents of the people” (which is more an administrative role) and to transform themselves to the role of being a professional judicial agent of the State to administer justice among the people, between the people and the state, and between the state and other state organs. The Constitution is a social contract whereby all members of the People’s Republic of China are parties to the contract, enjoying the rights and undertake the duties as espoused by the theory of social contract:  “There is undoubtedly a universal justice which springs from reason alone, but if that justice is to be acknowledged as such it must be reciprocal. Humanly speaking, the laws of natural justice, lacking any natural sanction, are unavailing among men. In fact, such laws merely benefit the wicked and injure the just, since the just respect them while others do not do so in return. So there must be covenants and positive laws to unite rights with duties and to direct justice to its object.” 254   In the context of disputing parties, whether they are two private persons, or one private person and the other government bodies or both are government bodies, rights and obligations need to be adjudicated by an impartial and neutral third person. The First Dimension of Impartiality requires that appropriate disclosure should be made in line with the new standard for straightness, being integrity and honesty, and avoiding conflict                                                 254   See Rousseau, supra note 4, p. 40.  	   102 of interest. This mentality change is a new challenge to the system of administration of justice in civil, administrative and criminal procedures in China. Conceptually, judges need to have a sense of responsibility to administer justice only according to law and only loyal to the rule of law, being impartial and avoiding conflict of interests. Like arbitrators, they need to make appropriate disclosures when they accept the assignment/appointments for handling a specific case.  In Quebec Civil Procedure, a judge who is aware of a ground of recusation to which he is liable is bound, without waiting until it is invoked, to make and file in the record a written declaration of it.255 The civil procedure lists various situations, where a judge may be recused, including but not limited to the following:  (1) If he is related or allied to one of the parties within the degree of cousin-germin inclusively; (2) If he is himself a party to an action involving a question similar to the one in dispute; (3) If he has given advice upon the matter in dispute, or has previously taken cognization of it as an arbitrator, if he has acted as attorney for any of the parties, or if he has made known his opinion extra-judicially; (4) If he is directly interested in an action pending before a court in which any of the parties will be called to sit as judge;                                                 255    Quebec Code of Civil Procedure (1999-2000), Article 236. 	   103 (5) If there is mortal enmity between him and any of the parties, or if he has made threats against any of the parties, since the institution of the action or within six months previous to the proposed recusation; (6) If he is the legal representative, the mandatory or the administrator of the property of a party to the suit, or if he is, in relation to one of the parties, a successor or a donee; (7) If he is a member of an association, partnership or legal person, or is manager or patron of some order or community which is a party to the suit; (8) If he has any interest in favoring any of the parties; (9) If he is related or allied to the attorney or counsel or to the partner of any of them, either in the direct line, or in the collateral line in the second degree.256  As discussed in Chapter IV (pp. 190-193), there are provisions that require withdrawal of judges in certain circumstances in the civil procedure. If disclosures are made out honestly and properly, the parties will be more likely protected from the influences of the “parents” of the judges, particularly when the “parents” hold political positions in the government. The practice of arbitrator’s declaration of independence and impartiality is a useful practice for the judicial appointments in each case, such that the judges appointed to each case shall file an independence and impartiality declaration to the parties, so that the parties know that the appointed judges do not have conflict of interest in relation to the parties, to avoid actual or perception of bias in the proceedings.                                                  256    Ibid. Article 234. 	   104   b) Mobility   In modern days, separate from the inquisitorial and adversarial trial method, the Chinese Communist Party (CCP) developed one mass-line based trial method called “Ma Xiwu Trial Model”. This method was first developed by a judge Ma Xiwu in the new democratic revolutionary period in the judicial work of the Shan Gan Ning Border Area, following the Long March257, where Yanan was finally chosen as the headquarter of the CCP during the years from 1934 to 1949.258  The Ma Xiwu Trial Method emphasizes two principal aspects in the trial: 1) trial by way of the dialogue with the parties; and 2) trial by following the mass line259. In respect of the latter, the Ma Xiwu Trial Method advocates the linkage to the people and is distinguished in the following aspects:  a) Trial on mobile basis at the local site by the local basic people’s courts; b) Circuit Tribunal set up by the higher people’s courts;                                                 257    The Long March was a historical strategic transfer of core military force from Ruijin (Jiangxi Province), westward to Guiyang (Guangxi Province), Kunming (Yunnan Province), turning north across the Yangtze River and the Yellow River, to Yanan (Shanxi Province) under the leadership of the CCP during 1934 and 1935.  It is “like a miracle, more documented than Moses leading his Chosen People through the Red Sea. (Six thousand miles in a year averages out at seventeen miles every single day.)” See John King Fairbank and Merle Goldman, China, a New History, The Belknap Press of Harvard University Press, Cambridge, Massachusetts, London, England, 2006, p. 305. 258    See Ma Xiwu, The People’s Judicial Work in the Shan Gan Ning Border Area at the Stage of the New Democratic Revolutionary Stage, Political and Legal Research (政法研究) 1955 Vol. 1, selected in Zhang Xipo, Ma Xiwu and Ma Xiwu Trial Method, Beijing, China: Law Press, 2013, pp. 256-273. 259    “In short, the idea of the “mass line” was here adumbrated: the party must go among the people to discover their grievances and needs, which could then be formulated by the party and explained to the masses as their own best interest. This from-the-masses to-the masses concept was indeed a sort of democracy suited to Chinese tradition, where the upper-class official had governed best when he had the true interests of the local people at heart and so governed on their behalf”. See Fairbank, supra footnote 257, p. 319. 	   105 c) Public trial after the determination of the cases, which means that the trial operates like a public announcement of the result of the cases260; d) People’s jurors participating in the trial; e) Mediation for settlement is encouraged.261  Civil procedure codification was first considered in 1950 after the liberation of the People’s Republic of China to abolish the “reactionary judicial organs”, complicated and formalistic procedures, and to stress the convenience to be provided to the people with simplified procedure to seek the truth from the facts.262  Chinese civil procedure jurisprudence directs that the court should take a dominant role in civil procedural relations with the parties. 263  The judges preside over the civil procedure with unrestrained power to enquire into the facts of the case and direct the process of the hearing under the civil procedure. Judges take a more active approach in finding the facts of the case than those in common law jurisdictions, which echoes more closely with and merges easily into the inquisitorial system of trial in civil law jurisdictions. The judges are expected to go to the people to hear cases and resolve disputes. They may travel to the local sites to have tribunal hearings on the site, which is called mobile tribunal hearing.264 This effectively links with and provides educational value and                                                 260    It must be noted that the public announcement of result of the case does not seem to mean that the court may open public conferences or mass meeting to announce the result of the case, particularly where individual’s right to be treated with dignity is concerned. A conception of justice requires that the society should publicly respect each member of the society, and, per Kant’s view, treats human beings not as means but as ends. See Rawls, A Theory of Justice, supra, footnote 85, p. 156. 261      Zhang Xipo, supra footnote 258, p. 269. 262     Liu Jiaxing and Pan Jianfeng, Minshi susong fa [Civil Procedure Law], Beijing: Peking University Press, 2013, p. 15.  263     Ibid. p. 32. 264     Article 135, Civil Procedure Law (as amended on August 31, 2012 and effective from January 1, 2013). 	   106 convenience to the people. The judges are expected to emphasize mediation in the process of solving disputes. 265  2. Is Judicial Impartiality Different?  It is widely recognized that judicial independence is the foundation for the building block of a democratic society under rule of law.266 It is part of the separation of powers in a modern nation state. The origin of judicial independence came from Greek philosophers. According to Aristotle, any political state will have three elements, the legislative where the rules are enacted, the executive offices that are to enforce the rules… and the judiciary that aims as resolving disputes among the citizens.267 Judicial independence concept passes down from history.268  A good example of judicial independence can be seen in the consensus in international conventions like 1985 United Nations Principles of Judicial Independence:  “The judiciary shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”                                                  265     Jiang Lingzhi, “The Renaissance of Ma Xiwu Trial Mode and Judicial Authority”, Dong Wu Fa Xue, 2012, Autumn Vol. p. 90.  266     Martine Valois, Judicial Independence Keeping Law at a Distance from Politics, Markham, Ontario: LexisNexis, 2013, p. 252. 267     See Aristotle, Politics, Book VI, Mineola, New York: Dover Publications, pp. 239-251. 268     The modern view of growth of the concept of judicial independence is that the concept was the result of the culmination of the social structure that law is separate from politics (as represented by government). See Martine Valois, Judicial Independence Keeping Law at a Distance from Politics, Markham, Ontario: LexisNexis, 2013, p. 174. 	   107 It is said that judge’s freedom is secured by the foundation of judicial independence, which “has always referred to the necessity that judicial decision making be free from external pressure of constraint”.269   (1)  Definition   There is no fixed definition of judicial independence.270 However, the definition of judicial independence may look like the following:  “Judicial independence refers to the existence of judges who are not manipulated for political gain, who are impartial toward the parties of a dispute, and who form a judicial branch which has the power as an institution to regulate the legality of government behavior, enact "neutral" justice, and determine significant constitutional and legal issues.”271  The above definition of judicial independence includes the impartiality objective for dispute resolution. In Canada, in its leading case on the principle of judicial independence, the Supreme Court of Canada set out three conditions essential to secure judicial independence: i) security tenure; ii) financial security; and iii) institutional                                                 269     Justice Brian W. Lennox, “Judicial Independence in Canada – The Evolution Continues”, in Adam Dodek & Lorne Sossin, Judicial Independence in Context, Toronto: Irwin Law, 2010, p. 624. 270     Ibid. 271     Christopher M. Larkins, Judicial Independence and Democratization: A Theoretical and Conceptual Analysis, 44 Am. J. Comp. L. 605, 611 (1996), cited by Judge Myron Bright, see “Judicial Independence”, 20, U. Haw. L. Rev. 611, 1998, p. 615. 	   108 independence with respect to matters of adjudication.272  Judicial independence refers to the judges’ freedom to make decisions based on the law without external influence or any from of pressure and is the essential conditions for the preservation of the rule of law.273  China has made efforts to establish an “independent trial” system that was intended to operate under the Constitution. It does not have the level of judicial independence as in the West, as the judges are compensated fairly modestly as government officials. Financial security is hardly made available even by the Chinese living standards, and the judicial institution is to a large extent very dependent upon the budgetary constraints from the local governments. Chinese mode of “independent trial” differs from the “judicial independence” (Sifa duli) as espoused by Montesquieu in his thought of the “separation of powers”. Chinese “independent trial” (Duli shenpan) mode refers to elimination of outside influence from actual judicial work, but not the Party’s influence over the general policy direction of the judicial process.274  “China did not adopt the big bang approach to economic reforms or follow the neoliberal aspects of the Washington Consensus, including rapid privatization, deregulation, and opening of the domestic economy to international competition. Like other East Asian states, it has postponed democratization until it attains a higher level of economic and institutional development. Also, like other                                                 272     R. v. Valente, [1985] S.C.J. No. 77, [1985] 2 S.C.R. 673, at paras. 34-36 (S.C.C.), cited in Martine Valois, Judicial Independence Keeping Law at a Distance from Politics, Markham, Ontario: LexisNexis, 2013, p. 15.  Also see, “The Doctrine of Judcial Independence Developed by the Supreme Court of Canada”, Osgoode Hall Law Journal, Vol. 26, No. 1, p. 178 (commenting on the Valente case with a critique of the doctrine from the relationship between independence and impartiality, the relationship between judicial independence and its support machnisms, and the “institutional” role of the courts in Canada). 273    Martine Valois, Judicial Independence Keeping Law at a Distance from Politics, Markham, Ontario: LexisNexis, 2013, p. 252. 274    See Ronald C. Keith, China’s Struggle for the Rule of Law, New York, NY: St. Martin’s Press, 1994, p. 18. 	   109 successful East Asian states, it has adopted a two-track approach to legal development that emphasizes commercial law while imposing limits on the exercise of civil and political rights.”275  The improvement of independent trial mode lies in the gradual advancement of the judicial authority among all law enforcement organs, as in the example of the intellectual property courts in China. The IP courts have obtained an expanding role following China’s adoption of the international treaties such as the WTO/TRIPS Agreement, which requires judicial review of all administrative decisions on intellectual property as part of the enforcement mechanisms.276  (2)  Goal of Judicial Independence   The principle of judicial independence is studied largely under two categories: de jure and de facto judicial independence.277 De jure refers to the concept of judicial independence in the constitution and other organizational legislations. De facto refers to the performance of judicial independence as a matter of fact.278  The glue in the maintaining of the principle of judicial independence lies in the said “insurance theory” whereby political competition has an impact on judicial independence. Empirical data shows that in advanced democracies, high level of political competition has a positive                                                 275     Randall Peerenboom ed., Judicial Independence in China, Lessons for Global Rule of Law Promotion, Cambridge [England]; New York: Cambridge University Press, 2010, p. 4. 276    For an observant and perhaps a little pessimistic view of the growth to rule of law in China, see Stanley Lubman, “Conclusion: Stronger and More Professional Courts, but Still under Party Control”, Asia Policy, No. 20, July/2015, pp. 38-44. Also see Stanley Lubman, Bird in a cage, legal reform in China after Mao, Standford, Calif.: Standford University Press, 1999. 277   See Aylin Aydin, “Judicial Independence across Democratic Regimes: Understanding the Varying Impact of Political Competition”, Law & Society Review, Volume 47, Number 1 (2013) p. 117. 278   Ibid. 	   110 impact on judicial independence, while in developing democracies political competition may have a negative impact on judicial independence.279  Judicial independence is not a “goal of itself”, but rather it is a means to other social values, such as impartiality, justice and legitimacy280. Judicial independence is not unknown to China as its Constitution already has provisions that require independent trial by the judiciary in handling trial matters, free from any interference from other institutions or individuals.281 The concept has been written into the PRC Constitution since 1954, and has been pivotal in setting the organizations of the Chinese court system in place ever since. There are however wide criticisms about the independence of the judiciary in the literature. The criticisms of Chinese judiciary include the lack of independence in the sense that the judges are appointed by the ruling Party, CCP, following stringent scrutiny of the background of the judicial cadres. The court socially and politically binds judges collectively to the CCP, the state and the people.282 The judges’ work is also supervised by the CCP from the angle of the internal trial tribunals and adjudicative committees at various level of the hierarchy of the court system. Therefore in a sense, there is perception of lack of institutional independence from political influence in the inherent structure since the Party is within the organization of the court system, which may give rise to influences from the Party members. As a result, it is perceived that corruption practices may be rampant in some localities in China.                                                 279   Ibid. 280    See Sonia Lawrence, “Reflections: On Judicial Diversity and Judicial Independence”, in Adam Dodek & Lorne Sossin eds., Judicial Independence in Context, Toronto: Irwin Law, 2010, p. 195. Also see, John Ferejohn, “Independent Judges, Dependent Judiciary: Explaining Judicial Independence” (1999) 72 S. Cal. L. Rev. 353. 281    Article 126, PRC Constitution. 282     Stephanie Balme, “Local Courts in Western China, the Quest for Independence and Dignity”, in Peerenboom ed., Judicial Independence in China, Lessons from Global Rule of Law Promotion. Cambridge [England]; New York: Cambridge University Press, 2010, p. 156. 	   111  “Judicial independence is often assumed to be impossible in authoritarian regimes, law plays a limited role in governance and takes a back seat to government policies and ruling party dictates, legal institutions are unable to restrain political power, and judges are faithful servants of the ruling regime. Yet even a cursory glance at authoritarian regimes – whether historical or contemporary, whether in Europe or in East Asia, Latin America, Africa, or the Middle East – reveals that law plays a much larger role in authoritarian states than commonly believed.”283  The “international best practices” ought to be used as the standard for examining the “independent trial” mode while acknowledging “that there is no single path toward the rule of law and that the rule of law principles are consistent with a wide variety of institutional arrangements”.284   (3) IP Courts  No doubt, independence of judiciary needs to be strengthened in practice in order to meet the challenges of judicial enforcement of intellectual property.  It is meaningful to look at three perspectives in IP law: one is where the owner has already obtained IP rights in China and is in the process of enforcement of their IP rights. The owner conducts judicial enforcement routes and goes through the courts in civil and criminal enforcement proceedings. Along the enforcement procedures, independence and impartiality of the courts is fundamental to enable justice to be administered in each case. The second angle lies where the IP owner is obtaining IP rights in the IP acquisition                                                 283    See Randall Peerenboom, Judicial Independence in China, Lessons from Global Rule of Law Promotion, Cambridge [England]; New York: Cambridge University Press, 2010, p.  3. 284    Ibid. p. 4. 	   112 process, where judicial review comes into play to examine and review the administrative or regulatory functions of granting IP rights. These cases will show judicial review sought in compliance with the TRIPS Agreement to review the administrative decisions from the China Intellectual Property Office (SIPO) and the Trademark Office of the PRC. Judicial review is a powerful mechanism to ensure the proper procurement of IPR rights and the adequate enforcement of the IPR in China, and shoulders a mission to inject checks and balances in restraining government powers in the executives and legislative authorities, not only from dispute resolution but also from constitutional perspective. In this regard, the institutional independence of the IP courts supports this mission as a structural matter.  While Chinese Constitution has the set up of the legislative, the executive and the judiciary, on the face of it, these three functional divisions of the state appears to be available, together with the fourth division of the Procuratorate.285 From political point, there is of course also the CCP leading and managing all the institutions as an administrative matter, while the Party must act within the provisions of the Constitution and law.286  The judges are required to be loyal to the Party, to the people, to the state and finally to the law. 287  The Party is the key leading political institution in the country, leading to ensure that the affairs of all the legislative, the executive, the judiciary, the procuratorate and other institutions be run in an active, independent, responsible and                                                 285      See Article 129, PRC Constitution: The People’s Procuratorate is the legal supervisory body of the State. 286      See Preface of Charter of the CCP (Amended at the 18th National Congress of the CCP, November 14, 2012) [中国共产党党章] at http://news.xinhuanet.com/18cpcnc/2012-11/18/c_113714762.htm,  287      Article 4, The Basic Code for Judicial Ethics of Judges of the People’s Republic of China (December 6, 2010). 	   113 coordinated manner.288 As such, it is inseparable from the Party from leadership perspective when we talk about the administration of justice. It is inseparable from the political influences from the leading ruling party in China in theory (although the Party is presumed to lead the country for the good of the people) unless the courts are set up more independently.   As a useful trial, the IP Courts were recently set up in Beijing, Shanghai and Guangzhou, to institutionalize the efforts for centralized and cross-region enforcement of intellectual property law.289 The IP Courts have jurisdiction to hear civil and administrative litigations involving patents, new plant variety, integrated circuits, know-how and other intellectual property rights. Matters for determining intellectual property rights against IPR administrative bodies such as litigations against the Patent Re-examination Board or the Trademark Review and Appeal Board (TRAB) for determination of patent and trademark rights will be heard by Beijing IP Court. The IP Courts have appeal jurisdiction over appeals from lower district courts on IPR matters. Appeal against the IP Court judgments will fall into the jurisdiction of the Higher Level People’s Court at the place where the IP Courts are established. The trial will last for three years at the initial phase and further reform may follow thereafter.290 Take Guangzhou IP Court as an example. It has five divisions, including four trial related tribunals (case acceptance, patent, copyright and trademark/unfair competition tribunals)                                                 288      The Preface of the Charter of CCP states: “The Party must act within the provisions of the Constitution and law. The Party must ensure that the legislative, judicial, administrative, economic and culture organizations and people’s associations work in an active, independent, responsible and coordinated manner.” [党必须在宪法和法律的范围内活动。党必须保证国家的立法、司法、行政机关,经济、文化组织和人民团体积极主动地、独立负责地、协调一致地工作。] Supra footnote 286.  289     See “Decision of the Standing Committee of the National People’s Congress Concerning the Establishment of Intellectual Property Courts in Beijing, Shanghai and Guangzhou (adopted at the 10th Session of the Standing Committee of the 12th National People’s Congress on August 31, 2014), Peoples’ Courts Daily, September 1, 2014. 290    Ibid. 	   114 and one comprehensive administrative division (supported by two judicial subordinated sections for technical investigation and bailiff).291 To strengthen independent trial, president and tribunal heads are all categorized as trial judges. President and vice president will not issue judgments where they do not participate in the trials.292  While the above development of establishment of IP Courts is encouraging, the question remains unanswered. The Constitution requires the court to conduct trials independently, without outside influences from other institutions, social societies and individuals. As such, how will “outside influences” be contained in order to secure “independent trial”?  3. Fencing Non-Judicial Influences Under “Independent Trial” Mode  Influences over decision-makers may exist, as long as the law recognizes such influences as legitimate. In common law, the principle of following case precedent is based on recognition that prior cases of similar nature bind the present decision-maker’s discretionary authority to make decisions. In Chinese context, the interpretative guidelines from the Supreme People’s Court do exert influences on the lower courts decision-making in specific cases. The influences that need to be fenced with are the non-judicial influences over decision-makers.                                                  291    See Lin Jinbiao, Li Lin and Wang Fang, “The Birth of Guangzhou IP Court”, People’s Courts Daily, December 17, 2014, p. 4. 292    Ibid. 	   115 Confucius teaching advocates: “Do not concern yourself with matters of government unless they are the responsibility of your office.” (不在其位,不谋其政[Bu Zai Qi Wei, Bu Mou Qi Zheng])293 This may serve as a common caution of political virtue. However, this moral adage does not create institutional wall fencing outside influences in practice. In respect of outside influence in China, one needs to understand the current structure in the hierarchy of the power structure of the government in China.  The courts’ primary function is recognized as dispute resolution through civil, administrative and criminal trials.294 Other administrative bodies engaging in dispute resolution must be cautioned to see whether they create influences on the judiciary more than what the law warrants, and renders it economically inefficient for dispute resolution.  Through this perspective, I found that the Letter Visit Bureau as part of the government intervention agencies is an organization whose function may prove to be interfering into the judiciary improperly. The Letter Visit system will need to be restructured as part of the further reforms so that unnecessary political or outside influences may be contained.295   In the IP field, the rules protect the private rights of the individuals, natural persons and legal persons. The procedures for enforcing the rules of law (as discussed in Chapter IV) will be the basis to for enforcement of rights. The court is to administer the “corrective justice” consistently based purely on the published laws and rules, which call the court to have review power over decisions from the administrative authorities such as                                                 293     Confucius, The Analects, Book VIII, 15, supra footnote 1. 294    Article 3, The Law of the PRC on the Organization of the Court (as amended in 2006). 295   The letter visit system does not breed professionals with rational and legal solutions. Rather it encourages seeds of social instability. See Carl F. Minzner, “Xinfang, An Alternative to Formal Chinese Legal Institutions”, 42 Stan. J. Int’l L. 103, 2006 p. 179.  	   116 the Patent Re-Examination Board, the Trademark Review and Adjudication Board etc. In line with the traditional thinking that governing a big state is like roasting small fresh fishes (Zhi Da Guo Ru Peng Xiao Xian 治大国如烹小鲜)296, which means that governing a big state must be careful to keep it stable (not to overturn the fish too often) so that the state like the fish is well kept intact, while going through the roasting time, this requires the court to deal with the matter of justice as a higher prudence so as to maintain the good order of the society. The term “free from outside influence” should be understood to mean not only political influences but influences from the government agencies that are non-party to the dispute, and “independent” means that the court is independent from the government agency involved in such dispute.  (1)  Political Influences  There is always a question as to whether the Party shall observe the law or the law shall follow the Party’s policy. The answer to this seems to be a mixed one. Arguably, an interdependence relation exists de facto between the Party and the rule of law.297 While                                                 296    Lao Tzu, Tao Te Ching, translated with an introduction by D.C. Lau, London: Penguin, 1963, Book Two, LX, p, 67. Also see Wang Shumin, Xianqin daofa sixiang jianggao [Talk on Daoism of Early Qin], Beijing: Zhuanghua Book Company, 2007, p. 53. 297   A similar view from Chinese legal literature states that CCP started the establishment of the People’s Republic of China with one Party-State unitary system (党国一元制) when the PRC was established; it gradually became a dual sytem of Political System (政制) and Rule of Law (法治)as China opened the door and commenced market economy. The Political System remains unchanged but the Rule of Law system, as reflected in the private laws and market economcy rules applicable to modern citizen’s society exists side by side with the Political System. While the author recognizes the Rule of Law system is constrained by the Political System, he sees the future reforms lies in the return to constitutionally ruled Rule of Law system where political parties are to be subject to the constitutionally based rule of law. See Gao Xiquan, “Fa Zhi Bian Ge Yu “Zhong Guo Jing Yan” [Transformation of Rule of Law and China’s Experience], Zhong Guo Zheng Fa Da Xue Xue Bao [Law Review of China University of Political Science and Law] Issue 2, 2009, pp. 80-83.   For a more critical view, please see Nathan Lee, “China: ‘Rule of Law’ or ‘Rule by the Party?’”, Chinascope, January/February 2015, pp. 6-18 (while noting CCP directing the Political and Legal Affairs Committee (PLAC) not to interfere in the actual judicial work, the author argues that the PLAC’s control of personnel structure allows it to interfere into the judicial work, pointing to the conclusion of ‘ruly by the Party’. It might be worth noting: 1) The translation of Yi Fa Zhi Guo [“依法治国”] into “Ruly by Law” may not be entirely accurate. “Rule by Law” equals to “Yi Fa Zhi Guo” [same pronunciation with only different tone and writing on the first character] [“以法治国”]. “依法治国” equals to “rule a country according to law”, which seems to be closer to the meaning of “Rule of Law”. 2) The Notice of CCP Central Committee of January 24, 1980 to set up the PLAC defines the main function of the PLAC as 	   117 the Constitution does have the provision that all organizations, including political parties, must observe the law and act within the scope of the law, the Party has a leading role to affect the drafting of new law and the changes of the law in practice.298 The Party exercises certain amount of control through the Party’s Political and Legal Affairs Committee (PLAC) and its Organizational Department that monitors the personnel of central legal institutions, including the Supreme People’s Court (SPC).299 The PLAC however is “more concerned with the leadership of the Court than the ordinary judges”,300 and “in practice the Party is not involved in much of the ordinary work of the Court.”301 This appears to echo with the Notice of CCP Central Committee of January 24, 1980 to set up the PLAC with defined function “not to interfere with the actual judicial work”.302 Hence, the SPC has led its way over actual judicial work, with a reasonable level of defined autonomy for its actual judicial work, i.e., adjudication work in the ordinary course of events, particularly with regard to professional, technical, civil (including intellectual property) matters.  In 1991, the Party issued Several Opinions on Strengthening the Work to Lead the State’s Legislation, which provides that amendment to the Constitution, draft law on                                                                                                                                             to exercise leadership over legislative work and control the political direction of the legal process, but it requires the PLAC “not to interfere into the actual judicial work”. This Notice arguably puts in place the interdependence relationship between the PLAC and the court in terms of actual judical work, with the latter to be handled by the judges as professional adjudication work).  298   The leading role of CCP over legislative work appears to be rooted in Confucian teaching of Ren (仁) (benevolence). The Chinese character “仁” (Ren) depicts a two men in benevolent co-existence structure, which seems to echo with the “Party-State” or “Party-Government” structure discussed in the literature. It should well be noted that such leadership is to be done and the CCP’s activities are to be within the published laws and justice. As Rawls observes in relation to the morality of authority: “[t]hus the morality of authority has but a restricted role in fundamental social arrangements and can be justified only when the unusual demands of the practice in question make it essential to give certain individuals the prerogatives of leadership and command. In all cases, the scope of this morality is governed by the principles of justice.” See Rawls, A Theory of Justice, supra footnote 85, p. 409.  299   Susan Finder, “The Supreme People’s Court of the People’s Republic of China”, in Tahiril V. Lee ed., Contract, Guanxi, and Dispute Resolution in China, Garland Publishing, Inc. New York and London, 1997, p. 293.  300    Ibid. p. 293. 301    Ibid. p. 333. 302    Nathan Lee, supra note 297. 	   118 major political aspect, draft laws on extraordinary economic and administrative aspects, must be first examined and approved by the Central Committee (or the Standing Committee) of the Political Bureau of the Party and the Central Plenary Meeting of the Central Committee.  Accordingly the Party has political influence on the new law and changes to the important aspects of the law in China. Further, the Party has effective power to recommend and appoint key personnel to the NPC and other state organs. The Deputy President of the Supreme People’s Court, the deputy president of the Supreme People’s Procuratorate, and the leading members of the internal organizations of these institutions, and the president of the courts at or above the county level will need to be appointed in accordance with the Working Regulations of the Party on the Selection and Appointment Leading Members to the Party and Government (2002).303 On the other hand, the Party relies on the proper law enforcement and administration of justice by the court to maintain its legitimacy in governance and leadership.  The CCP has members all across the country in government agencies, social organization and non-governmental organizations. It works with other political parties on consultative basis. 304 If law enforcement is not satisfactory to the eyes of the people, or if the “actual judicial work” (i.e., administration of justice) is not properly conducted, the Party’s legitimacy in leadership will be more likely to be drawn into question.                                                  303    Ye Haibo, Study on the Constitutionalization of the Political Party, Xiamen: Xiamen University Press, 2009. P. 206. 304    As leading party in China, CCP influence is wide spread as principal part of political life in China. There are other political parties in the country. They include Democratic Construction Union Party, Nine Three Society, Guoming Dang, China Democratic Party, etc.. These parties, however, work under the leadership of the CCP, while they also have their own party policies and cooperate with each other. The idea of other parties surrounding the CCP seems to echo with the traditional view of rule of virture. “The Master said, ‘The rule of virtue can be compared to the Pole Star which commands the homage of the multitude of stars without leaving its place.’” See Confucius, The Analects, Book II, 1, supra footnote 1. 	   119 (2) Influences from the Legislature   As noted above, the PRC Constitution does not cover the institutional concept of judicial independence in well-drafted language, but the concept of “independent trial”. The court shall try cases and adjudicate independently.305 However, in addition to the role of the CCP in leading the new law and legislations, the legislature itself exerts institutional influences over the courts.   The Constitution only authorizes the court to deal with “law” when exercising the power of trial and adjudication. It does not expressly authorize the court to interpret the Constitution judicially. Instead, the Constitution has express provisions for the NPC to supervise the enforcement of the Constitution, and the NPC’s Standing Committee to interpret “law”. Article 67 of the Constitution states that the NPC has the authority to interpret the Constitution and supervise the enforcement of the Constitution. The power to supervise the enforcement of the Constitution is therefore retained by the NPC, resulting in the supremacy of the power of the NPC under Chinese law.   The NPC has the power to amend the Constitution and supervise the enforcement of the Constitution.306 The NPC’s Standing Committee has the power to interpret the Constitution and the law and supervise the enforcement of the Constitution.307  The Organization Law of the People’s Court provides that the Supreme People’s Court shall have the power to interpret questions of application of law or orders in trial or                                                 305    Article 126, PRC Constitution. 306    Article 62, PRC Constitution. 307    Article 67, PRC Constitution. 	   120 adjudication.308  Accordingly what the court has from the express authorization of the Constitution and the Organization Law of the People’s Court is the power to interpret laws at the time of applying the law in trial and adjudication matters. It does not seem to have the power to apply the Constitution or interpret the Constitution in specific cases. The court has limited judicial interpretative power in application of law, and the NPC’s Standing Committee reserves the power to interpret law at the legislative level. In practice, the NPC’s Standing Committee has used this power in several occasions, including its interpretation of the Basic Law of the Hong Kong Special Administrative Regions. In relation to the selection of the Chief Executive Officer of the Hong Kong Special Administrative Region subsequent to 2007, the Hong Kong Government sought an interpretation of the annexes to the Basic Law, the Standing Committee of the NPC, in accordance with the Article 67 (4) of the PRC Constitution and Article 158 (1) of the Basic Law of the Hong Kong SAR, made an interpretation on April 6, 2004 at the Eight Session of the Standing Committee of the 10th National People’s Congress, to the effect that “if there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the Legislative Council and the consent of the Chief Executive, and they shall be reported to the Standing Committee of the National People’s Congress for approval”.309                                                   308    Article 32, PRC Constitution. 309    See The Interpretation by the Standing Committee of the National People’s Congress of Article 7 of Annex I and Article III of Annex II to the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (Adopted at the Eighth Session of the Standing Committee of the Tenth National People’s Congress on 6 April 2004.)  	   121 Back in 1981, the Standing Committee of the NPC had a resolution regarding the improvement on interpretation of law.310 This resolution directed that the questions of law in application of law shall be interpreted by the Supreme People’s Court;311 question of law regarding prosecution will be interpreted by the People’s Procuratorate; questions other than of application of law or prosecution shall be interpreted by the State Council and its respective departments; questions of law from the local regulations shall be interpreted by the Standing Committee of the local People’s Congress. This division of interpretative power on interpretation of law shows that the court is only one institution that has been vested with the power of interpretation of law in adjudication matters. The ultimate power of interpretation of law is reserved with the Standing Committee of the NPC.   The Organization Law of the People’s Court also specifies the task of the court. Under the Organization Law, the court is to try criminal cases, civil cases, punish all criminals, and resolve civil disputes through trial and adjudication. There is no mention of administrative cases, including administration litigations against the government based on the violation of the Constitution. Article 4 of the Organization Law reiterates the provision of the Constitution that the court conducts trial and adjudication according to law and no interference from government agencies, social organizations and individuals                                                 310    See Resolution of the Standing Committee of the National People’s Congress Providing an Improved Interpretation of the Law (adopted at the 19th Meeting of the Standing Committee of the Fifth National People’s Congress on June 10, 1981). 311    The SPC’s power to interprete the law comes in parallel with the power to interpret the law with the Supreme People’s Procuratorate. Both have the same legal status under the Constitution and are directly responsible to the NPC and Standing Committee. They follow the meachnism of mutual supervision. Note that the Public Security Ministry does not have the parallel power to interpret the law, as granted from the NPC Standing Committee. See Nanping Liu, Judicial Interpretation in China, Hong Kong: Sweet & Maxwell Asia, 1997, p. 28.  	   122 are permitted. The legislative intent of this provision clearly limits the court’s interpretative power to interpret laws when they apply the  laws in practice in criminal and civil cases, but not to interpret the Constitution or the laws as to whether they comply with the Constitution. The discussion of the awareness of rights and the judiciary’s role to enforce such rights, subject to the supremacy of the NPC in China, illustrates the need to have more individualistic approaches to responsibility, independence and accountability for institutions as well as individual citizens. While individual citizens are given broader rights in intellectual property, they need to exercise their rights in their individual capacity, unrelated to the traditional class concept. This requires the renovation of the Party theory on class struggle and consider new theories in support of the Constitution to reduce the level of involvement of the revolutionary vestiges of class struggle and introduce more modern concept of individual freedom as well as individual responsibility toward society, which could be structured according to equality of members of society under the social contract theory.   (3)  Government Agencies’ Influences  Courts aim to resolve disputes, including criminal offenses, civil disputes and administrative disputes. This goal is set out clearly in the three procedure laws, the Criminal Procedure Law312, the Civil Procedure Law and the Administrative Procedure Law.                                                   312    Note criminal procedure is not included in this dissertation. 	   123 The civil jurisdiction of the court deals with such matters as civil disputes, commercial disputes, IP disputes and maritime disputes. All these dispute resolution processes are governed by the Civil Procedure Law. As the subject matters are civil matters between citizens, legal persons or other organizations of equal legal status,313 the courts are less sensitive to influences from the government agencies than matters under the administrative procedure law.  The Administrative Procedure Law allows the court to accept complaints by the citizens or legal persons against government agencies on specific matters, such as granting of license or cancellation of licenses, as provided under the law. The actions are targeted at the government agencies and the remedies may require the government agencies to do or refrain from doing certain things. The administrative procedure law therefore sets out the judicial review scheme in the Chinese context to have the judiciary examine the conduct of the government agencies in specific situations. This administrative procedure law is largely seen as implanted from foreign jurisprudence on judicial review.314  It is observed that the local people’s courts in China are considered in fact to be part of the local government. Courts are dependent on local government at the same level for their financing, and their personnel serve de jure upon nomination of the local                                                 313     Article 2, General Principles of Civil Law (GPCL). 314     See Pitman B. Potter, The Chinese Legal System, Globalization and Local Legal Culture, New York: Routledge, 2001, p. 35. 	   124 People's Congress and de facto at the pleasure of the local Party” political and legal committee.315  In the IP field, before the TRIPS Agreement which requires judicial review of the government acts in the IP sector, the Administrative Litigation Law was already in implementation in practice, although the door is not open to judicial review of IP decisions issued by the Patent Office, the Trademark Office or the TRAB or the Copyright Office in the country, until the IP laws were amended to permit these actions prior to or after the accession to the WTO and TRIPS Agreement.   Government influences include some influences driven from complaints filed according to the letter-visit system in China. This complaint system may be limited to addressing complaints regarding government officials’ conduct only (excluding judicial personnel’s conduct which shall be subject to judicial immunity for their office actions).    4. Controlling Non-Judicial Influences Internally  Institutional independence is to be achieved under legal mechanism for recognition and protection purposes. For example, a legal person entity has separate legal personality and undertakes civil liabilities independently – independent from the shareholders of the company. Its independence is protected by law vis-à-vis other legal                                                 315     Donald Clarke, “Dispute Resolution in China”, Journal of Chinese Law, 1991, 5:245, p. 266. 	   125 persons. Natural persons who achieve the legal age of 18 years old also are legally independent in terms of legal capacity to undertake civil and criminal liability. Institutions like the court enjoy the right to try cases independently but do not have the concept of legal independence in terms of accountability for their public function services. It has been argued that the more individualistic a society is, the more attention is paid to each person and the more accountable its judges will be in taking up accountability.316  Definition of independence internally – judges who form a collegiate bench will act independently, without interference from other judges and internal administrative bodies within the People’s Court. In this regard, we need to be aware of two characteristics in China: (I) collegiate bench; and (2) the adjudication Committee, from institutional perspective.  The analysis of independence may also be had from the internal mind of the judges who make the decisions, as expressed in their judgments. The Civil Procedure Law (as amended on August 31, 2013) requires reasons to be given in each judgment. In the next chapter, I will examine a few cases in IP law to see how the reasoning of the judgment helps to establish the independence of the judges required in the judicial process.                                                      316    Antoine Garapon, “A New Approach for Promoting Judicial Independence”, in Randall Peerenboom, ed., Judicial Independence in China Lessons for Global Rule of Law Promotion, Cambridge [England]; New York: Cambridge University Press, 2010, p. 44. 	   126 (1)    Collegiate Bench   In practice, the Court will usually determine the composition of the collegiate bench following acceptance of the case. The Civil Procedure Law provides that the court shall, within three days after the composition of the collegiate bench, notify the parties of the names of the members of the bench.317  There is no jury trial similar to jury trial in Canada or other common law jurisdictions. There is however the possibility of having a people’s jury member to be participating in the trial process as one member of the collegiate bench in first instance cases. This is increasingly used in the trial of civil claims in the basic level people’s court. In Fuyuan County, Yunnan Province, there are 100 people’s jury members who are called to act as jurors to participate in civil trial cases on alternate random selection basis. Eleven towns and 70 villages in the county are covered by the services of these jurors, together with 50 judges in the country’s first instance court. In 2013, 1065 cases took place with participating jurors, making a juror participating rate of 90.41% of all the cases.318  There usually requires one jury member in a three member collegiate bench.319  Officials of the Standing Committee of the NPC, and judicial administrative agencies, and practicing lawyers etc cannot be selected as jury members.320 Arguably, the people’s                                                 317    Article 128, Civil Procedure Law. 318    See “Testing Juror Reform in Fuyuan” [Peishenyuan Gaige Shidian Zai Fuyuan], People’s Court Daily [Renmin Fayuan Bao], January 11, 2014, p. 8. 319    Art. 3, Decision of the Standing Committee of the National People’s Congress on the Perfection of the People’s Jury System (passed on August 28, 2004 at the 10th Plenary Session of Standing Committee of the Eleventh National People’s Congress and effective from May 1, 2005).  320    Art. 5, ibid. 	   127 juror system should be improved to allow more representation from the local people in terms of concerns of access to justice, transparency and fairness of proceedings.  The Civil Procedure Law allows the tribunal to be composed of three judges or one sole judge as the tribunal.321 In the case of three judges, like in arbitration proceedings, the panel will be deliberating in a collegiate bench. The views will be adopted on the basis of majority vote of the decision-making process.322 If there is no majority vote, in arbitration the presiding arbitrator will count as the view of the award,323 while in civil litigation, the rules are silent on this issue. In practice, presumably, the chief judge’s view will count as the view of the judgment.    (2)Adjudication Committee  Adjudication Committee is a unique form of adjudication body with Chinese characteristics. It is said that this committee was uniquely created to fit into the Chinese context. 324     It is argued that the judges may have to use their discretion to “stretch” the law so as to reach a fair solution to the dispute. Collective decision-making is some times called upon in order to achieve a consensus of the judgment.                                                 321    Art. 39, Civil Procedure Law. 322    Art. 42, Civil Procedure Law. 323    See Art. 49 6), CIETAC Arbitration Rules (Effective from January 1, 2015).  324    Zhang Min and Jiang Huiling, Fayuan shenpan duli wenti yuanjiu [Judicial Independent Trial Question and its Research], [法院独立审判问题研究], Beijing: People’s Court Publishing House, 1998, p. 258. 	   128  “An essential function of law, called the "settlement function", is to provide a generally accepted, authoritative method of settling disputes that might otherwise be intractable. These include disputes about morality. People often have disagreements about what is morally right or wrong that will never be resolved. We need, as a community, to make collective decisions about these contested issues, and so we need decision-making procedures whose outcomes will be accepted as binding even by those who continue to disagree about their merits. If these procedures are democratic, they provide the fairest method of decision-making, which reinforces the obligation to respect their outcomes. If those outcomes are not generally respected-if those who disagree with their merits refuse to comply with them then we remain where we started, in a predicament of perpetual disagreement and potential if not actual conflict.”325  The Adjudication Committee326 will stand in some times in China to deal with complicated cases where the collective wisdom is called for in granting appropriate remedies to the parties.327  The Adjudication Committee is to be set up in each People’s                                                 325    See Jeffrey Goldworthy, “The Limits of Judicial Fidelity to the Law: Coxford Lecture”, Canadian Journal of Law and Jurisprudence, Vol. XXIV No. 2 (2011), p. 321.  326    Another translation of the term “审判委员会” (Shen Pan Wei Yuan Hui) is “Judicial Committee”. 327    A recent study of the Adjudication Committee shows that the Adjudication Committee has more a role to play in criminal cases than civil cases. The author observes that it becomes a “device for both individual judges and committee members to shelter responsibility”. The study is based on data drawn from revew of archival minutes of the adjudication committee in only one lower level court in Shaanxi province for one year 2009, and interview notes with relevant judges and secondary literature. The article itself qualifies not to “lead to comprehensive and accurate picture of the committee”. Perhaps it raises more questions than it aims to settle, given the level of disparity of development in different parts of China. It, however, provides a useful pespective for thought process on further reforms towards more autonomy of judicial decision-making. See Xin He, “Black Hole of Responsibility: The Adjudication Committee’s Role in a Chinese Court”, Law & Society Review, Volume 46, Number 4 (2012), 681-712.   	   129 Court under the principle of collective democratic system.328  The task of the Adjudication Committee is to summarize the trial experience of the court and discuss and consider important or complicated cases and other related issues arising from adjudication work. 329  Members of the Adjudication Committee will be nominated by the president of the court for the approval by the Standing Committee of the Local People’s Congress at the same level. Members of the Adjudication Committee of the Supreme People’s Court will be approved by the Standing Committee of the National People’s Congress.330  The meetings of the Adjudication Committee will be chaired by the president of the people’s court. The attorney general of the People’s Procuratorate at the same level will be entitled to attend the meeting.331   It should be noted that the Adjudication Committee only operates to deal with complicated cases or cases involving important policy issues at the court in respect of trial matters.332 Most cases are dealt with through the trial tribunal in collegiate bench.  The Adjudication Committee of the Supreme People’s Court also operates to consider                                                 328    Article 10, PRC Organizational Law of Peoples’ Courts (adopted on July 1, 1979 and effective from January 1, 1980, as amended the third time on October 31, 2006). 329    Ibid. 330    Ibid. 331    Ibid. 332     Whether the matter is complicated or otherwise involves important policy issue is presumably subject to the discretion of the handling judges. Analysis of case study is usually to be placed on the case merits. The argument that there was corrupted “control” by the president of the court who changed the views of the panel judges in the Property Case discussed by He Xin does not seem to be based on discussion of the merits of the case. Interestingly, at the time of the review of the Case (2009), invalidating a contract is a serious legal matter subject to judicial interpretation, as directed by the Supreme People’s Court in its Interpretation of Several Questions Concerning Application of the Contract Law (I) (dated December 1, 1999) (Invalidation of contracts should be based on mandatory provisions of laws promulgated by the National People’s Congress and administrative regulations issued by the State Council, but not on local regulations or departmental rules). It seems to be reasonable for the president of that court to take control of these adjudication matters at the level of the adjudication committee, when a contract that was valuntorily entered into by both parties in 2000 and a decade later one party wanted to renege the contract simply because the property market had sharply changed. The Property Case seems to show, on the contrary, the cautious approach towards adjudicative decision-making at the court when certain outcome obviously would go against the policy of judicial interpretation. The court’s submission for feedback from the higher-level court in that case seems to be a practically prudent approach prior to adjudication. It would be more convincing if the Property Case were analysed from its merits, rather than relying on the author’s interviews (i.e., hearsays). For description of the Property Case, see He Xin, supra footnote 327, p. 695. 	   130 and approve judicial interpretations to be published by the Supreme People’s Court on the Gazette of the Supreme People’s Court of the PRC.333 Such judicial interpretations have the effect of binding force as far as the lower courts are concerned.   The Adjudication Committee is composed of president, deputy president, head of tribunal and certain judges in a court. It is a combination of senior judges and junior judges to form a collective pool. The operating method of the Adjudication Committee is not by way of conducting hearings of the parties directly, but by meeting with the Collegiate Bench which has three members who hear the case, and then discuss and make decisions for the Collegiate Bench. As a result, the downside of the Adjudication Committee includes (i) those who hear the case have to make the decision by having consented to or approved by the Adjudication Committee; (ii) the process is not entirely transparent to the parties; (iii) the rules about disclosure and challenge of judges may not apply to the members of the adjudication committee and hence, there might be situations of potential bias existing in the adjudication process; (iv) it goes against the principle of open hearing; and the adversarial debate process may be put at risks due to the administrative nature of the Adjudication Committee. 334  Many problems exist due to the existence of the Adjudication Committee. Some cases were seriously delayed as a result of the different views from members of the Adjudication Committee. Delay