{"title":"Precedential Value of Judicial Decisions in Increasingly Hybridised Civil Law Systems: Chinese Choreographies at the WTO","authors":"Riccardo Vecellio Segate","doi":"10.1017/asjcl.2023.38","DOIUrl":null,"url":null,"abstract":"\n Pursuant to Article 63 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a state may require other treaty parties to disclose their intellectual property case law ‘of general application’. While most domestic judgments in common law are indeed of general application, civil law systems theoretically employ judgments as reference only. Nevertheless, to value consistency and predictability, the hybridisation of civil law jurisdictions is increasingly leading them to devise special lists of judgments that acquire formal or factual binding status on lower-ranked courts. This trend is particularly evident in China, whose Supreme People's Court's ‘Guiding Cases’ join other specific categories of holdings within ‘Judicial Interpretations’ and further guideline documents that are factually binding domestically. When the United States and the European Union requested, through the World Trade Organization, that China disclose the full range of its case law of general application, China responded that civil law jurisdictions do not issue judgments that are binding beyond the parties. This article examines the limitations and merits of the Chinese stance.","PeriodicalId":39405,"journal":{"name":"Asian Journal of Comparative Law","volume":"108 1","pages":""},"PeriodicalIF":0.0000,"publicationDate":"2024-01-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":"0","resultStr":null,"platform":"Semanticscholar","paperid":null,"PeriodicalName":"Asian Journal of Comparative Law","FirstCategoryId":"1085","ListUrlMain":"https://doi.org/10.1017/asjcl.2023.38","RegionNum":0,"RegionCategory":null,"ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":null,"EPubDate":"","PubModel":"","JCR":"Q3","JCRName":"Social Sciences","Score":null,"Total":0}
引用次数: 0
Abstract
Pursuant to Article 63 of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), a state may require other treaty parties to disclose their intellectual property case law ‘of general application’. While most domestic judgments in common law are indeed of general application, civil law systems theoretically employ judgments as reference only. Nevertheless, to value consistency and predictability, the hybridisation of civil law jurisdictions is increasingly leading them to devise special lists of judgments that acquire formal or factual binding status on lower-ranked courts. This trend is particularly evident in China, whose Supreme People's Court's ‘Guiding Cases’ join other specific categories of holdings within ‘Judicial Interpretations’ and further guideline documents that are factually binding domestically. When the United States and the European Union requested, through the World Trade Organization, that China disclose the full range of its case law of general application, China responded that civil law jurisdictions do not issue judgments that are binding beyond the parties. This article examines the limitations and merits of the Chinese stance.
期刊介绍:
The Asian Journal of Comparative Law (AsJCL) is the leading forum for research and discussion of the law and legal systems of Asia. It embraces work that is theoretical, empirical, socio-legal, doctrinal or comparative that relates to one or more Asian legal systems, as well as work that compares one or more Asian legal systems with non-Asian systems. The Journal seeks articles which display an intimate knowledge of Asian legal systems, and thus provide a window into the way they work in practice. The AsJCL is an initiative of the Asian Law Institute (ASLI), an association established by thirteen leading law schools in Asia and with a rapidly expanding membership base across Asia and in other regions around the world.