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Translation - English Demurrer Regarding “Objection to Jurisdiction”
(Case No: [200X] Guangdong Province _____ No.4)
Claimant (Pleader): XXXX Co., Ltd.
Address: XXnd Floor, Tower X, XX Road, Guangzhou
Legal Representative: Wang XX, Chairman
Respondent (Pleadee): XX Insurance Company of China (Guangdong Subsidiary)
Address: XX Road, Guangzhou
Legal Representative: XX, General Manager
The case cited has already been accepted for hearing by the High People’s Court of Guangdong; however, the Respondent, in an attempt to evade impartial hearing of this dispute by the People’s Court, has raised objection to the jurisdiction of the High People’s Court of Guangdong over this case, and deems that the High People’s Court of Guangdong has no authority to hear the dispute. The Claimant deems that the arbitration clauses contained in the insurance policy under dispute neither conform to the basic requirements for an arbitration agreement as determined by current conventions on international commercial arbitration, nor conform to relevant regulations in PRC law on the basic content of an arbitration agreement; and therefore should constitute an invalid arbitration agreement. The specific reasons for which the High People’s Court of Guangdong should legally have rightful jurisdiction over this dispute are as follows:
I. The arbitration clauses stipulated in the insurance policy currently under dispute do not conform to the basic requirements for an arbitration agreement as determined by current conventions on international commercial arbitration.
Arbitration agreement refers to a written agreement between two parties regarding the referral to an arbitrator of any dispute that may occur or have already occurred between them in the course of the international or domestic commercial exchange they have undertaken. Although the legislation of individual countries and relevant international treaties do not concur completely on the definition of an arbitration agreement, they put forward the same basic requirements regarding the content a valid arbitration agreement should possess. According to current international customs and usage, a valid arbitration agreement at the minimum should indicate:
1. Matters for arbitration;
2. A location for arbitration and an arbitrating agency;
3. Prescribed arbitration procedure;
4. The binding nature of the arbitration judgement.
For example, Article 1 of “The Arbitration Rules of the United Nations Commission on International Trade Law” provides the following as “a model arbitration clause”:
“Any dispute, controversy or claim arising out of or relating to this contract, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force.
Note - Parties may wish to consider adding:
i. The appointing authority shall be ... (name of institution or person);
ii. The number of arbitrators shall be ... (one or three);
iii. The place of arbitration shall be ... (town or country);
iv. The language(s) to be used in the arbitral proceedings shall be ...”
Similarly, the China International Economic and Trade Arbitration Commission has provided the following “model arbitration clause”:
"Any dispute arising from or in connection with this Contract shall be submitted to China International Economic and Trade Arbitration Commission for arbitration which shall be conducted in accordance with the Commission's arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties."
When contrasted with the preceding examples of a “model arbitration clause”, the insurance policy under dispute, while containing a formulation on arbitration, is found to lack any reference to the actual and specific name of an arbitration agency and a prescribed arbitration procedure; likewise, it does not refer to a specific arbitration location, nor does it refer to the binding nature of the arbitrated judgement. For these reasons, the arbitration clauses contained in the insurance policy under dispute should be considered an invalid arbitration agreement that is not contractually binding to either party of the contract.
II. The arbitration clauses contained in the insurance policy currently under dispute also do not conform to relevant regulations in PRC law on arbitration agreement.
The clauses on judicial jurisdiction in the “Detailed List” of the insurance policy currently under dispute all stipulate: the present insurance policy shall be interpreted in accordance to PRC law.
Article 65 of the PRC Arbitration Law provides: “The provisions in this chapter apply to arbitration of disputes arising from foreign economic cooperation and trade, transportation and maritime matters. Matters not covered by this chapter shall be handled according to other relevant provisions of this law.” According to this regulation, with regard to the validity of an arbitration agreement, where the chapter on “Arbitration Involving Foreign Interests” does not contain a relevant stipulation, other relevant provisions of the Arbitration Law should be used.
Article 16, Clause 2 of the Arbitration Law provides:
“An arbitration agreement shall contain the following:
1. The expression of application for arbitration.
2. Matters for arbitration.
3. The arbitration commission chosen.
Article 18 of the Arbitration Law also provides:
“Whereas an agreement for arbitration fails to specify or specify clearly matters concerning arbitration or the choice of arbitration commission, parties concerned may conclude a supplementary agreement. If a supplementary agreement cannot be reached, the agreement for arbitration is invalid.”
According to the aforementioned regulations, PRC law establishes clear and explicit arbitration details and a specified arbitration agency as the basic requirements of a legal and binding arbitration agreement.
According to the provisions of Article 146 of “Opinions on Several Questions Related to the Application of ” by the Supreme People’s Court, when the arbitration agency chosen by the parties in the arbitration clauses or in the agreement does not exist, the People’s Court has the authority to legally hear one party’s claim. Furthermore, in the arbitration clauses contained in the insurance policy currently under dispute, both parties have clearly not chosen or designated an arbitration commission to which disputes shall be submitted for arbitrated judgement; nor have the parties in this dispute ever completed any supplementary agreement regarding the designation of an arbitration agency. For this reason, the arbitration clauses contained in the insurance policy currently under dispute cannot in practice be applied, and do not constitute a legal and binding arbitration agreement as defined by law. Therefore, the High People’s Court of Guangdong, on the basis of “The Arbitration Law” and the aforementioned legal interpretations of the Supreme People’s Court, has just jurisdiction over this dispute and has the authority to hear this dispute in accordance to law.
In consideration of the fact that the arbitration clauses contained in the insurance policy currently under dispute fail to stipulate items such as arbitration agency, arbitration procedures and arbitration location, it does not possess the basic essential elements of a binding arbitration agreement. The Claimant requests that the court reject the Respondent’s unreasonable request regarding objection to jurisdiction, and in accordance to law exercise its legitimate jurisdiction with regard to this case.
Hereby submitted to:
The High People’s Court of Guangdong
Claimant: XXXX Co., Ltd.
Guardian ad litem: ______________________
Date: June X 200X
Chinese to English: Types of patent licenses and the relevant regulations Detailed field: Law: Patents, Trademarks, Copyright
Source text - Chinese 中国专利实施许可制度，是中国专利制度的一个重要组成部分。但是，目前中国并无一个专门的部门法来统一规范这一制度，对其规定、要求以及相应的各种规范，散落于中国专利法、合同法以及相关的司法解释中。
Translation - English China’s patent licensing system is a key component of the country’s patent system. However, at present there is no special departmental law that unifies or standardizes the licensing system. Instead, the various regulations, requirements and standards governing patent licensing are found scattered within the PRC Patent Law, the PRC Contract Law and various judicial interpretations.
According to Article 12 of the Patent Law, any entity or individual exercising the patent rights of another party shall conclude a written patent license contract with the patentee and pay the patentee a fee for the use of the patent. The licensee may not authorize any entity or individual other than those designated in the contract to use the patent.
The earliest provisions regarding the types of patent license contracts are found in the PRC Technical Contract Implementing Regulations issued by the State Science and Technology Commission on March 15, 1989. Article 69 of the Implementing Regulations stipulates that patent license contracts can adopt various forms of licensing, including exclusive licensing, sole licensing and simple licensing. However, that stipulation is not included in the Contract Law promulgated in 1999, nor is it referred to in the Patent Law promulgated in 2000. It finally reappears in a judicial interpretation by the Supreme People’s Court issued November 30, 2004—Several Interpretations Regarding Applicable Law in the Examination of Technical Contract Disputes. . According to Article 25 of the Interpretations, patent license contracts include the following types: (1) exclusive license contracts, under which the assignor assigns the right to use the patent within the scope of the prescribed patent license exclusively to the assignee and the assignor itself is not entitled to use the patent; (2) sole licensing, under which the assignor assigns the right to use the patent within the scope of the prescribed patent license exclusively to the assignee, except that the assignor itself can continue to use the patent in accordance with the provisions of the contract; (3) simple licensing, under which the licensor and the licensee agree that other licensees, including the licensor, shall also be entitled to use the patent.
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