WTO disputes settlement

How to understand China’s policies and practices on the WTO dispute settlement since its accession to WTO and conduct objective and reasonable assessment on its performance and achievements in WTO dispute settlement is currently an important issue of concerns. By analyzing China’s performance in the WTO dispute settlement in the broad environment of the WTO dispute settlement activities over the past thirteen years, this paper holds that the WTO dispute settlement mechanism has made remarkable achievements over the past 13 years, strongly promoted the trade relationship of the WTO members and settled tough and complicated trade disputes in a timely, effective and proper manner; and over the past seven years after China’s accession to WTO, China’s practice in WTO dispute settlement mechanism has rendered the following initial impression: High-profile positive policies and low-profile moderate acts; not hesitate to file complaints but be good at responding to complaints in participating in the WTO dispute settlement activities; more consultations should be made with less litigations; diligent in participation and strict in implementation; and handling trade disputes related to the WTO rules in a reasonable, effective and moderate manner.     

Mediation of Intellectual Property disputes

Legal and practical context. Mediation can bring real benefitsin avoiding protracted and costly IP litigation and is suitablefor most IP disputes except where a matter of principle, suchas construction of patent claims, requires resolution. Key points. Mediation may be used at any time to resolve a dispute.The courts can give robust encouragement by means of costs sanctionsand ADR orders but cannot compel the use of mediation. The Proceedsof Crime Act 2002 may apply to some mediated settlements, particularlythose involving trade mark and copyright infringement disputes. Practical significance. The courts and the Patent Office areactively seeking ways to encourage mediation of IP disputesand the Patent Office has announced the setting up of a mediationscheme.     

医疗纠纷的法医临床学鉴定

目的：剖析医疗纠纷产生的原因;介绍法医介入鉴定的法律依据,法医学鉴定的特点,赔偿的方法,存在的问题等;在最终减少案件发生的前提下,妥善地处理此类诉讼案件。方法：对46例医疗纠纷案件进行回顾性研究,将其按案件的性质、涉及的器官、引起的后果等归类。分析。结果：80％的案例其医疗行为与最终的不良后果之间存在着因果关系,原因包括手术医师对手术区域局部解剖结构分辨不清等技术性因素以及医护人员粗心大意、责任心不强等责任性因素;20％无因果关系。结论：临床医师应与其他行业一样为其所实施的医疗行为承担一定的法律责任。医疗纠纷作为一种特殊的民事侵权行为,在进行民事诉讼赔偿时,法医有必要对其中的因果关系进行评定,以保护双方当事人的合法权益。     

船舶优先权纠纷案评析

本案解决的是因侵权行为造成的纯经济损失是否属于船舶优先权范围的问题,即原告代位求偿的侵权利润损失是否应享受船舶优先权。     

Sexual Entitlement: Rights and AIDS,The Early Years*

While traditionally social scientists saw politics as an independent force acting on law, today it seems appropriate to also view law as an agent in the construction of political identities, aspirations and tactics. Here, the AIDS epidemic illuminates this relationship. Soon after AIDS was identified, the cities of San Francisco and San Diego moved to close the gay baths as breeding grounds for the disease. The struggle over that policy reveals how law enters into the debates within the homosexual community, and at least partially constitutes individual identity in that community.     

Talking Law in Times of Reform: Paradoxes of Legal Entitlement in Cameroon

Based on ethnographic fieldwork carried out between 2003 and 2005, this article examines how legality is constructed in present‐day Adamaoua Province, Cameroon. Focusing on an instance of a process locally referred to as la concertation, I analyze how state officials and cattle traders gather to discuss the practical fate of law. As a heightened moment of suspended enforcement, la concertation is productive for both officials, who work out the limits of their respective spheres of authority and imagine a trade based on business norms and practices that severely limit the scope of regulatory action, and traders, who manage to stave off the increased scrutiny that income tax law presupposes, while asserting their concern for the integrity and consistency of the law.     

Reducing the cost of resolving intellectual property disputes

An important reason why intellectual property is far less effective for generating innovation than it could be is the excessively high cost of resolving disputes. This largely reflects the use of ordinary court arrangements to determine what are essentially technical issues. Compulsory expert arbitration, with legal aid for the party that doesnot appeal to the court from a ruling, is proposed as an alternative. A full-scale working model of such a system is shown to exist in the interference procedure of the United States Patent and Trademark Office. That no more than 4 percent of court appeals from decisions in this are even partially successful augurs well for the potential value of the arrangements proposed.     

从医疗纠纷案例反思医学人文关怀

近年来,我国的医疗纠纷呈不断上升趋势,暴力伤医事件愈演愈烈,究其原因有各种各样的因素,其中对病人的人文关怀缺乏是主要原因之一。本文试图从一些典型医疗纠纷案例入手,从医学人文关怀视角剖析其纠纷发生的原因,提出在当前医疗环境中只有重视人文关怀才能改善医患关系,减少医疗纠纷,构建和谐社会。     

医疗纠纷可仲裁性之法律思考

无论是学术界还是实务界在研究、探索通过仲裁处理医疗纠纷的过程中,都要依据我国法律思考医疗纠纷的可仲裁性问题。医疗纠纷的可仲裁性不仅决定了仲裁协议是否具有法律效力,而且关系到仲裁裁决会被国内法院撤销或者不被外国法院承认和执行,最终导致仲裁无效。笔者认为,根据我国仲裁法的规定,营利性医疗机构发生的医疗服务合同纠纷具有可仲裁性,除此之外的医疗纠纷则不具有。     

Explaining energy disputes at the World Trade Organization

The international trade regime has seen an explosion of challenges to government support for renewable energy in recent years, yet fossil fuel subsidies, which dwarf renewable energy subsidies, have remained unchallenged. Existing explanations for this puzzling discrepancy have focused on four rationales: major fossil fuel exporters have not historically been members of the General Agreement on Tariffs and Trade/World Trade Organization (WTO); WTO subsidies rules are inadequate to deal with the specifics of the fossil fuel trade; nations have developed separate institutions to govern energy; and all states have fossil fuel subsidies, so a challenge to one country’s subsidies will prompt a reciprocal challenge. This article makes two contributions. First, it uses a survey of existing renewable energy trade disputes to critique the existing explanations. Most importantly, the article shows that the threat of reciprocal litigation exists in the renewable energy sector, and that WTO subsidies rules are rarely used to challenge renewable energy subsidies. Hence, neither the threat of reciprocal litigation nor the relative ease of applying WTO subsidies rules explains the discrepancy in the number of disputes. Second, the article hypothesizes that the economic diversification of energy-producing countries is correlated with and may drive whether energy-producing countries face WTO challenges to their energy support policies. Most major fossil fuel producers lack significant non-fossil fuel exports that could be restricted in order to induce them to reform their fossil fuel policies, the usual mechanism for enforcing a WTO judgment. States may also be more likely to challenge new, rather than long-standing, trade restrictions. This suggests that trade challenges will arise more frequently where innovation leads to competition and a demand for new trade restrictions (as in renewable energy), as opposed to in mature sectors of the economy (i.e., the fossil fuel industry). Economic diversification, in turn, is a good predictor of innovation.     

Overview of alternative dispute resolution in healthcare disputes

Various methods of alternative dispute resolution have gained wide acceptance in general commercial disputes. With the ever-increasing commercialization of the healthcare industry, many participants are examining ADR as a means of resolving disputes in this area as well. This Commentary provides an overview of the two most prevalent forms of ADR (arbitration and mediation), and discusses ongoing legislative, judicial, and industry activities that will guide the application of ADR in the healthcare arena.     

论调解与医疗纠纷的解决

调解由于其所具有的尊重当事人意愿、程序灵活等特点,在解决医疗纠纷方面具有兼顾医患双方利益保护、促进医患关系和谐、降低纠纷解决成本等独特优势。分析我国现行的调解解决医疗纠纷新探索的几种代表性模式将有助于我国医疗纠纷解决机制的进一步完善,并推动整个社会医疗服务水平的提高。     

试论中国社会中非常规纠纷的解决机制

Irregular disputes involving a certain community presented in the form of special maneuver and confrontation are noticeable social phenomena in China today. The issues related to irregular disputes and their settlement mechanism have transcended the professional and technical categories of regular judicial settlement, typically reflecting the profound background of political, legal and social development in China. To achieve the goal of social harmony, an extensive mobilization and utilization of political, judicial and various social resources in effectively dealing with this kind of social disputes is the key to enhancing China’s capability in controlling and resolving social disputes. Gu Peidong is a professor and doctoral supervisor, devoted to researches on the relationship of law and economy, judicial reform and judicial practice. His publications include over 20 monographs on law and economics independently or in collaboration with other authors, among which the Social Conflicts and Mechanism of Lawsuits is most popular in the Chinese academic circle, and his more than 100 thesis were released in the first-class law journals. In addition, Professor Gu was listed to the Top 10 Young Jurists in China (1995).