CHINA Law and Practice Contributed by: Chuanhong Long, Ji Liu and Xiao Jin, CCPIT Patent and Trademark Law Office
• mediation is simple, fast and flexible; • the general cost of mediation is low; and • mediation can resolve disputes in a relatively mild way, while also reflecting fairness and justice. However, mediation also has cons, including: • the limitations of mediation cases – ie, it is only suitable for cases with a clear legal rela - tionship and minor disputes; • mediation cases may make the parties lose the best time to litigate; and • poor execution of non-court mediation. Due to the difficulty in proving evidence and the low success rate in trade secret cases, the plaintiff may consider mediation to achieve the purpose of protecting trade secrets to a certain extent for cases with pessimistic prospects for litigation. Usually, the mediation process can guarantee confidentiality to avoid further dis - closure of trade secrets.
In addition, as another ADR mechanism, if “con- tract” has been signed between the right-holder and the alleged infringer and both parties vol - untarily reach an arbitration agreement, they can apply for arbitration to the local arbitration institution or the arbitration institution agreed in the arbitration agreement in accordance with the Arbitration Law of the PRC. ADR mechanisms can be used as a pre-proce - dure to litigation and are not inconsistent with litigation proceedings, so interim measures can be obtained from the courts. In addition, a mediation statement issued by the court according to the mediation agreement of the parties is enforceable, and the parties may apply for enforcement to the court of first instance or the court at the same level where the property subject to enforcement is located. An arbitration award issued by an arbitration insti- tution is also enforceable, and the parties may apply for enforcement to the intermediate peo - ple’s court in the place where the person subject to enforcement has their domicile or where the property subject to enforcement is located.
57
CHAMBERS.COM
Powered by FlippingBook