Law Commons^™

No Refills: The Intellectual Property High Court Decision In Canon V. Recycle Assist Will Negatively Impact The Printer Ink Cartridge Recycling Industry In Japan, Scott M. Tobias

Washington International Law Journal

In its decision in Canon v. Recycle Assist, the Japanese Intellectual Property High Court held that Recycle Assist had infringed on Canon’s patent for a printer ink cartridge by importing used Canon cartridges that had been cleaned and refilled with ink by a third party. The court found that the third party had modified essential elements of Canon’s patented ink cartridge, and therefore the modifications constituted not permissible repair, but infringing and impermissible remanufacture. The court defined essential elements as those intended to solve the technical problems present in similar, prior inventions. Unfortunately, the court failed to define clearly …

Bortz V. Suzuki, Judgment Of October 12, 1999, Hamamatsu Branch, Shizuoka District Court, Timothy Webster

Washington International Law Journal

The Bortz case links a series of truly comparative moments. In the first, the unsuspecting foreigner crosses into another culture’s blind spot, and emerges a very different person. Ana Bortz was shopping for a necklace in a Japanese jewelry store when the owner asked her where she was from. A westerner in Japan, Bortz likely thought little of the question, having answered it many times. She answered first in Japanese, and then in English, “from Brazil.” Neither response pleased the storeowner. Foreigners, or perhaps just Brazilians, were not allowed in the store. Their ensuing argument revealed other comparative moments. Enraged …

In The Wake Of Sakhalin Ii: How Non-Governmental Administration Of Natural Resources Could Strengthn Russia's Enery Sector, Nowell David Beckett Bamberger

Washington International Law Journal

Russia’s economically vital oil and gas industry is at a crossroads. Although foreign investment favored European nations in the wake of the Soviet collapse, in recent years American and European oil and gas companies have invested billions of dollars in Russia’s energy development and export distribution sectors. However, the 2006 restructuring of the $20 billion Sakhalin II project demonstrates that Russia’s energy sector has still not stabilized from the turbulent privatization of the 1990s. This comment explores the legal structures and Government policies affecting Russia’s oil and gas industry for evidence of the causes of institutional instability. It argues that …

Intellectual Property Rights And The Public Sector: Why Compulsory Licensing Of Protected Technologies Critical For Food Security Might Just Work In China, Gregory C. Ellis

Washington International Law Journal

The majority of people in the developed world have the luxury of never having to address food shortages and malnutrition. In developing countries, however, ensuring food security presents greater challenges. Agricultural biotechnology has the potential to alleviate many of the food crises occurring in developing countries. Unlike private sector corporations, public sector entities are creating genetically modified (“GM”) crops to ensure food security. However, the intellectual property rights (“IPRs”) to the many technologies required to create a single GM crop are often fragmented across the private and public sectors. Fragmentation of IPRs creates a “patent thicket” that increases the challenges …

The Applicability Of The Consumer Protection Law In Medical Malpractice Disputes In Taiwan, Ya-Ling Wu

Washington International Law Journal

The issue of whether or not no-fault liability under the Consumer Protection Law (“CPL”) applies in medical malpractice disputes has been a contentious battle in Taiwan. In Bo-Li Li v. Mackay Memorial Hospital, the Taipei District Court interpreted medical care as “services” under Article 7 of the CPL. Under this interpretation, patient services must meet “reasonably expected safety standards,” while health care providers are subject to no-fault liability. This interpretation was strenuously opposed by the medical profession and invoked much debate over its validity in the legal field. After the Bo-Li case, the lower courts expressed different views on …

A Condom Versus The Philippine Aids Prevention And Control Act Of 1998: Which Has Holes Leaving Filipinos Unprotected?, David M. Iseminger

Washington International Law Journal

In 1998, the Philippine legislature passed pioneering HIV/AIDS legislation in Southeast Asia called the AIDS Prevention and Control Act (“APCA” or “Act”). This comprehensive legislation sought, in part, to ensure access to health care information and to stop the spread of diseases like HIV/AIDS. Regulations were promulgated by the Philippine National AIDS Council in 1999 to implement the Act. APCA effectively addresses several important HIV/AIDS issues, including prohibiting discrimination and mandatory HIV testing, while ensuring access to basic health care. However, both the regulations and the Act fail to ensure that all scientifically accurate information regarding HIV/AIDS prevention reaches Filipinos. …

Extending The Reach Of The Chinese Labor Law: How Does The Supreme People's Court's 2006 Interpretation Transform Labor Dispute Resolution, Jill E. Monnin

Washington International Law Journal

Chinese workers are taking advantage of the dispute resolution tools that legal reform has provided in the past decade, including mediation, arbitration, and litigation. Despite a history of resolving disputes through informal mediation, more and more workers are relying on the new pathways of arbitration and civil suits in local courts. The 1993 Regulations on the Resolution of Enterprise Labor Disputes and the 1994 Labor Law facilitated workers’ access to formal legal forums. Then, in 2006, a Supreme People’s Court (“SPC”) interpretation made a number of important changes to the application of the Labor Law and workers’ access to dispute …

The Nireco Poison Pill: The Impact Of A Court Injunction, Toshihiko Shimizu, Toshihiro Igi, Christopher J. Kodama

Washington International Law Journal

The emergence of a market for corporate control in Japan is a phenomenon that many commentators on Japan’s business and legal environs had been anticipating since the turn of the new millennium. A gradual decline in corporate crossshareholding and stable shareholding by financial institutions along with a concomitant increase in foreign and individual shareholders, a significant number of inefficient firms still being affected by Japan’s prolonged recession until recent years and trading at prices below their market value, and Commercial Code revisions making the legal environment more conducive to merger and acquisition activity and providing for more flexible restructuring mechanisms, …

What Impact Will The Revised Trade Union Law Of China Have On Foreign Business?, Zana Z. Bugaighis

Washington International Law Journal

Cheap labor. Minimal regulations. Bribable officials. Foreign corporations attracted to China because of its low cost of business have avoided the unionization desired by the Chinese Communist Party (“CCP”) despite China’s history of weak trade union laws and inconsistent enforcement of union mandates. However, recent concerns of social unrest have forced the CCP to consider reforming the political tools used to control Chinese society. The CCP wants to create social stability, avoid independent unionization, and prevent the westernization of China. Foreign Investment Enterprises (“FIEs”) present new challenges for labor market regulation in China with their large number of non-unionized workers …

Comparing Foreign Investment In China, Post-Wto Accession, With Foreign Investment In The United States, Post-9/11, Jordan Brandt

Washington International Law Journal

Ever since China instituted its “open-door policy” (gai ge kai fang) in 1978, the historically autarkic and largely mysterious country has morphed through external interactions with foreign countries and corporations into a hotbed for foreign investment activity. This foreign investment activity has forever changed China’s standing in the global community; today, China stands firm and elevated amongst the ranks of the globalized community as one of the leaders in attracting foreign investment. This article examines China’s rise as an economic power through the use of its foreign investment laws. It then compares the experience of China, a communist …

When Are There More Laws? When Do They Matter? Using Game Theory To Compare Laws, Power Distribution, And Legal Environments In The United States And China, Ji Li

Washington International Law Journal

In several recent cases, the Supreme People’s Court of China ruled that local police owe a positive duty to protect individual members of the general public. In strong contrast, the United States Supreme Court declared in two police nonfeasance cases that such duty did not exist under the Federal Constitution. This is counterintuitive, because one would expect that in a liberal democracy where the judiciary is independent and powerful, judges would impose higher standard on local law enforcement officers. One possible explanation is that law does not matter in a developing country such as China, so laws are drafted and …

China's Practice Of Procuring Organs From Executed Prisoners: Human Rights Groups Must Narrowly Tailor Their Criticism And Endorse The Chinese Constitution To End Abuses, Joan E. Hemphill

Washington International Law Journal

For the past two decades, human rights groups, medical organizations, and the international media have excoriated China for procuring transplant organs from executed prisoners. This practice was first authorized under China’s 1984 “Temporary Rules Concerning the Utilization of Corpses or Organs from the Corpses of Executed Criminals” and it is widely used by the Chinese government. Reports from Chinese doctors and media sources reveal significant deficiencies both in the text and application of China’s current organ-procurement laws. The lack of clear legal parameters and the absence of enforcement measures have opened the door to problems of interpretation and misapplication, resulting …

Korea's New Prostitution Policy: Overcoming Challenges To Effectuate The Legislature's Intent To Protect Prostitutes From Abuse, Ji Hye Kim

Washington International Law Journal

Prostitution has been rampant in South Korea, exposing tens of thousands of women to abuse and violence. Beginning in 2000, however, women’s rights organizations spearheaded a legal reform campaign to change the nation’s prostitution policy. They drafted and proposed two bills to the National Assembly, which subsequently enacted them as laws. In passing the new legislation, the South Korean government vowed to eliminate prostitution as well as protect victims of exploitation and violence in the sex industry. However, the legislation fails to achieve these goals due to inherent inadequacies in the language and structure of the laws. This shortfall arises …

When The Price Is Too High: Rethinking China's Deterrence Strategy For Robbery, Peter D. Nestor

Washington International Law Journal

Economic property crime in China has soared since the country enacted market reforms in the early 1980s. Robbery rates are rising faster than most economic property crimes, such as larceny and fraud, and violent crimes, such as rape, murder, and assault. China’s strategy for deterrence is to raise the “price” of the crime by increasing the severity of the penalty. Since 1979, China’s criminal law has permitted the use of the death penalty for robbers in nearly all cases, and courts have applied it regularly and in many different types of robbery cases. Since 1983, China has formally engaged in …

The 2006 Revisions To Japan's Equal Opportunity Employment Law: An Narrow Approach To A Pervasive Probem, Megan L. Starich

Washington International Law Journal

In June 2006, Japan changed its approach to employment discrimination by amending the Equal Employment Opportunity Law (“EEOL”). The change was prompted by increased gender discrimination litigation, domestic economic pressures relating to the low birth rate, a stagnant economy and declining labor force, and criticism from the United Nations. The revised law attempts to address several of the shortcomings of the old law. First, Japan has made the law applicable to all workers rather than just to women workers. Second, the revisions expand the scope of the law by including a section on indirect discrimination. Third, the revisions provide greater …

Perverse Main Bank Rescue In The Lost Decade: Proof That Unique Institutional Incentives Drive Japanese Corporate Governance, Dan W. Puchniak

Washington International Law Journal

Two of the most prominent Japanese corporate governance scholars, Professors Miwa and Ramseyer (“M&R”), have recently published numerous articles and a book setting out their contrarian free-market theory of Japanese corporate governance. According to their theory, contemporary Japanese corporate governance is, and always has been, driven by free-market forces and not government incentives. M&R’s theory is enchanting in its simplicity and universality, as it uses standard economic theory to provide a single, and seemingly logical, solution to a myriad of complex legal, institutional, historical and cultural conundrums that have challenged observers of Japanese corporate governance for decades. Unfortunately, M&R’s theory …

The Marriage Amendment Act: Can Australia Prohibit Same-Sex Marriage?, Katy A. King

Washington International Law Journal

Both the United States and Australia have federal legislation, the Defense of Marriage Act and the Marriage Amendment Act 2004, that defines marriage as a union between a man and a woman. Australia has an express provision in its constitution granting Parliament the authority to pass laws on the subject of marriage. The United States, however, has no such constitutional provision. Consequently, Australia’s express constitutional provision may lead the High Court of Australia to rule that the Marriage Amendment Act 2004 is constitutional, which would likely preclude Australia’s states and territories from passing local same-sex marriage acts. This is fundamentally …

Establishing Secondary Liability With A Higher Degree Of Culpability: Redefining Chinese Internet Copyright Law To Encourage Technology Development, Yiman Zhang

Washington International Law Journal

While enjoying the tremendous economic benefit brought by the Internet to the nation, China has been attempting to update its intellectual property law to address online copyright infringement issues. The current legal framework, which premises copyright liability upon a direct infringement and joint liability theory, unfortunately has produced considerable ambiguity both within the judiciary and the affected industries. As shown in recent cases, the theory of joint liability, in addition to the broad scope of Chinese copyright law, has been particularly troublesome for China’s technology industry. Given China’s priority in technology innovation, its current copyright law has too low a …

Introduction To The New Company Law Of The People's Republic Of China, Steven M. Dickinson

Washington International Law Journal

This article briefly analyzes the new Company Law and its effects on doing business in China. After a brief history of the previous version of the law, this article examines the many changes to management and articles of association, capital requirements, limited liability companies, access to corporate information, piercing the corporate veil, third party loans, and legal remedies for improper actions. It goes on to look at the impact on the structure of foreign investments and discusses the likely effects of the new law in actual practice.

Judgment On Unfair Competition Dispute Between Baidu Online Network Technology (Beijing) Ltd. Co. And Beijing 3721 Technology Ltd. Co., Pengyue Li

Washington International Law Journal

On October 20, 2003, Baidu Online Network Technology (Beijing) Ltd., Co. (“Baidu”), a Nasdaq-listed company known as the “Google of China,” filed a suit against its competitor Beijing 3721 Technology Ltd. Co. (“3721”) in Beijing Chaoyang District Court for copyright infringement and unfair competition. The case is regarded as China’s first copyright-infringement dispute involving website search-engine technology. Legal experts, the Chinese media, and the Supreme Court of China have paid close attention to the case, especially as it is related to China’s ongoing legislative effort to improve protection of intellectual property. The translation below is the appellate opinion in this …

Controlling Business Method Patents: How The Japanese Standard For Patenting Software Could Bring Reasonable Limitations To Business Method Patents In The United States, James S. Sfekas

Washington International Law Journal

In recent years, the United States has expanded the scope of subject matter that can be patented. The Court of Appeals for the Federal Circuit has evolved a standard that allows inventors to patent software as long as it produces a useful and tangible result. Japan has also expanded the scope of patentable subject matter, but in a more limited fashion. Under the Japanese standard, the Japan Patent Office will only grant a patent to software inventions that apply a law of nature. The U.S. standard is too generous in allowing patents on software and business methods. Business method patents, …

Customary International Humanitarian Law And Multinational Military Operations In Malaysia, Drew R. Atkins

Washington International Law Journal

The International Committee of the Red Cross published a study in 2005 identifying rules of customary international law applicable to armed conflict and theoretically binding on all nations. This study found that customary state practice has come to encompass and in some cases exceed protections contained in the Additional Protocols of 1977 to the Geneva Conventions of 1949, regardless of their applicability to a given conflict. These findings may impact the domestic law enforcement practices of states not parties to Additional Protocol II, which regulates non-international armed conflict. Furthermore, the study may have indirect effects on military cooperation and legal …

Islamic Law In The Jurisprudence Of The International Court Of Justice: An Analysis, Clark B. Lombardi

Articles

This Article asks whether ICJ opinions to date suggest that judicial consideration of Islamic legal norms has played, can play, or should play a role in the ICJ's resolution of international legal disputes or in establishing the legitimacy of the results that it has reached. It is structured as follows. Part II gives an initial overview of the ICJ to help us understand how and why judges on the ICJ have reached the answers they have. Part III describes how the ICJ's enabling statute permits the Court, at least in theory, to look at Islamic legal norms. As I will …

Recent Reforms To The Japanese Judiciary: Real Change Or Mere Appearance?, Daniel H. Foote

Articles

In June 2001, the Justice System Reform Council ("Reform Council" or "Council") issued its final report. The Council's recommendations included several proposed reforms to the judiciary, intended to insure the judiciary would "meet the expectations of the people." This essay examines a number of those recommendations and the resulting reforms.

The single reform to the judiciary that has received the most publicity is the introduction of the saiban'in system, through which ordinary citizens will participate directly in judging serious crim:inal cases and thus will have the opportunity to express their views directly in the deliberation of those cases. That system, …