Archive for the 'justice' Category

The Story of a Chain Resturant

There is a big chain restaurant company who named itself Eatool. Based in Amilina (a country allowing people eat almost everything except small chicken), Eatool provides delicious meats, including pork, beef and adult chicken. At the same time, it also sells dishware and other stuffs in each of its restaurants.
Few years ago, Eatool opened a new restaurant in Cinet, a country where the king forbid selling pork, as well as chicken.
Personally, Eatool’s boss loves pork, but he knows that selling pork in their Cinet restaurant means shut down the business including the dishware. So they hired Cinet people run the restaurant in Cinet, and restricted themselves from selling pork. At the same time, Eatool sells dishware to Cinetizens.
In Amilina, many gourmets criticized Eatool for years: “Hey, pork is delicious. You should provide pork in Cinet. People in Cinet need pork!”
In the mean time, some people in Cinet also claimed: “Hey, we love pork. Why Eatool, the leader of the world restaurants, compromise to the evil regulation of forbidding pork?”
More profoundly, some thinkers either in Cinet or in Amilina said: “It’s not the matter of pork; it’s the matter of choice. No government should restrict the choice of eating. It’s a natural right to eat anything that a human being wants to!”
The prince of the Cinet asked his father, “Dad, they are criticizing us not allowing pork…”
“Amilina forbid eating the small chicken. Tell me, why?” The King did not answer the question but asked his son.
“Small chicken should be protected because they are young.”
“Yes, but attention, it’s a moral reason, not a logic one. Eating small chicken is sick and lousy, so they prohibited it. They need a moral legitimacy for ruling the country. We need too. So we prohibit chicken. The different is just the level of moral standards.”
“Oh, OK, Dad. But … how do we distinguish youth chicken and adult chicken?”
Moral reasons are mostly not steady, and that uncertainty always good for us. You will know that.”
“Then we prohibit the pork for the moral reason too? “
“You are too young, sometimes naive, my son!” Said the king, “It’s not the matter of choice; it’s the matter of interests. Remember: we are good at cooking beef, not pork. If we approve the pork before prepared, you may not be the next king of Cinet, my dear son! If you want to eat pork, just go Amilina, silently. But back to Cinet, we still cannot approve it. You understood?”
“So we prohibit chicken for the moral reason, but prohibit pork for the interests?”
“Not that simple. People used to reasoning their interests with moral argument. Not only us. You will see it. Anyway, pay attention to the guys who bought Eatool’s dishware specific for cooking the pork.”
The next day, Eatool was criticized in Cinet. The state central TV station blames Eatool providing the chicken, and saying chicken endangered the youth’s health. Under the heavy pressure, Eatool revised its menu, deleted all dishes made by chicken.  
A month later, Eatool suddenly sticked a notice at its shop window:
“we decide to sell the pork in Cinet now! We will discuss this with the king of Cinet. We recognize that this may well mean having to shut down Eatool at Cinet. But we have decided to do that.”
This is a big news. Journalists throng to the office of Eatool’s headquarter.
– “Why do you sell the pork now?”
“Because someone tried to break our dishware!” The CEO of Eatool said with angry.
– “who?”
“Someone, not sure. They tried to break our dishware! Not only our products, but also many other Amilinan companies’. The attackers are organized!”
– “Government based?”
“Not sure, but the attacks are aiming at the dishware that we made for the clients who argue for the freedom of eating, either in Amilina or in Cinet!”
“Em … what’s the relationship between dishware and pork?”
“Well, they attack the dishware, its violation of human right! We have principle.”
“Sir, I mean, why didn’t you provide pork before, but now change the mind? Can the pork protect the dishware from attacking?”
“Uh … I guess so … attackers may be busy in ~~ eating pork … em … yes, human rights! They are both the matter of human rights, the matter of freedom of Choice.”
– “When you are saying the dishware, what freedom of choice is about to?”
“Uh… uh…, security! The security of dishware! Without security of dishware, how can we eat pork, beef and even chicken? So as I said, the dishware is highly relevant to the pork. We decide to sell pork because they break our dishware!”
Reading Eatool’s notice, a client of Eatool’s Cinet shop cried, “Watch it! It’s the principle! The moral of a company! They decided to provide pork! I love Eatool! I will cross the wall and visit Eatool even it’s Cinet restaurant closed! I will not eat in the King’s restaurant, even beef!”
“How did you get the pork before?” Her mama asked, washing the dishware bought from Eatool.
“Cross the wall and visit Eatool’s restaurant in Amilina.”
“So … there is no difference … By the way, where did you buy and repair this dishware?”
“Eatool’s shop in Cinet of course! They don’t prohibit selling dishware! How dare the King prohibit that!”
“OK, after Eatool closes its restaurant in our country. Where can we repair this dishware?”
“Em… cross the wall. It’s all because of the King! I hate the King!”
“Fine, I am old and poor. I cannot afford such long journey for either pork or beef in Eatool’s restaurant in Amilina. Before you fight the King for the Eatool, can you tell Eatool not to change its principle next time? That’s just like the king.
“No mama, Eatool has principle; it was forced not selling pork!”
“Wash your dishware, dear. Eatool sold you it in Cinet. By the way, I suggest you marry the prince, which makes you eating the pork.”
“NO! I don’t like the prince!”
“OK, OK. Anyway, if you don’t marry the prince nor Eatool, then fight for yourself, for me, for those who cannot afford having diner in Eatool’s restaurant.

Judicial Mediation – A Deprofessionalization?

ON 15 AND 16 APRIL 2009, CityU of HK Law School held an international conference on the mediation. Experts from China, Hong Kong, Australia and Macau presented their latest academic outputs in the meeting.

The interesting thing is: Most Chinese experts are focusing on the judicial mediation, which is the mediation coordinated, and in many circumstances initiated, by judges during the litigations. Experts in other jurisdictions, by contrary, tends to discuss the mediation out of the court.

China’s judiciary system is actually now experiencing a new wave of transformation. Contrary to the trend before 2007, the current path of the “judicial reform” is to make the judiciary more “close to people”. One of the core measures is to enhance the “judicial mediation”. In my view, if the “profesionalization is a world trend for the mediation” (stated by Professor Nadja Alexander, a prominent expert in the arena of mediation), then the emphasizing of the “judicial mediation” in Chinese courts can be named a trend of de-professionalization for the judcial practice.

In a lunch seminar a week later from the conference, Mr. WU Zhi, an Asso. professor from Hunan Normal University brought his interesating talk about the “the mediation in Chinese IP litigations” in CityU. His presentation proved again my assumption. In resent three years, Chinese judiciary system has issued a good many of documents on the policies of the mediation. Now the Supreme People’s Courts seems stressed the mediation as the preference in the dispute resolution.

The most interesting thing in prof. Wu’s seminar is the discussion among auditors. Most of auditors are the students who registered in CityU’s creative LLM program for mainland judges. Because they are judges on the mainland China, they have many experiences in those judcial mediation. This makes the discussion being exciting. As a real auditor, I do obtain many useful knowledges and inpirations.

VS ?

One of the most impressive inspiration is: why the Chinese courts eager to be mediation centers? Two judges answered this question respectively (one was in the seminar and the other was on his way back to the dorm together with me, and their answers are amazingly identical!): because the China’s courts are aiming at providing dispute solutions rather than the justice. This reminds me a precedent post in this blog on the “mission of the Supreme People’s Courts” (in Chinese). Yes, the Chinese courts are not set as a seperation of sovereignty powers but the institution for dispute resolution authorized by the people’s congress (at least in the Constitution literarily). The Constitution and Laws are just one of the “three supremacies” (the slogan of the supreme court – and a question in 2008 China Bar exam).

As a layman either in the mediation or in the procedure law. I cannot figure out whether this “deprofessionalization” is good or bad in an acedemic way. The only thing raised in my mind is: the conflict among dispute resolution mechanisms. Mediation is a more efficient way in resolving the disputes than litigation, while the feature of the litigation is it’s formal procedure which may be costly but guarantted the rule of law. When the judicary simplified its procedure and compete to the unformal (or less-formal) mechanism of dispute resolution, it actually retreated itself from the position of “transporting justice”. And its status will be conflict to the existing mediation institutions. How many cost will be paid in this institutional competition?

Another interesting topic in is: whether the IP litigation can really be deprofessionlized in the judicial mediation – even if we narrow the aim of the courts only at efficient dispute resolution? Let’s leave this question in the next thread.