How Does TRIPS Transform Chinese Administrative Law?
Global Jurist, 8(1Topics): Article 6
Posted: 21 Mar 2013
Date Written: March 21, 2013
This paper argues that, after its accession to the WTO, Chinese administrative law has been transformed. Four elements are of great importance in this transformation process: the domestic constitutional function of the WTO law; the constitutional significance of China’s Accession Protocol where the right to trade and the obligation to provide independent judicial review are explicitly referred to; China’s perception as an impetus to widen and deepen its economic reforms, and subsequent legal reforms; and political pressures from other members of the WTO. Besides, owing to special features of the TRIPS agreement where detailed procedural and substantial requirements are included, the discretionary power of domestic administrative agencies is greatly narrowed down and thus controlled. This paper argues that detailed procedural and substantial rules provided in the TRIPS agreement can effectively act as a body of Global Administrative Law, which further controls the discretion of domestic governmental agencies. After the theoretical analysis of this “inevitable” transformation, this paper examines existent practices in Chinese administrative law. It starts with a general evaluation, and goes further to examine some case-laws in Chinese courts so as to evidence this transformation.
Keywords: Global Administrative Law, TRIPS, individual economic actor, independent judicial review, right to trade
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