Implications of the Study

Implications for Theories of Compliance

There is an obvious need to move beyond traditional competing theories of compliance which focus on one aspect to the exclusion of other significant factors. For example, following Franck’s concept of compliance as arising from legitimacy and fairness in the rules would lead to the conclusion that China chooses whether or not to comply with the TRIPS Agreement on the basis of TRIPS obligations alone (Franck 1995). Equally, taking a more neo-realist stance would lead to the conclusion that China chooses whether or not to comply based primarily on any possible sanctions that may be imposed for noncompliance (Neuhold 1999). Clearly, these limited approaches are insufficient to fully explain TRIPS compliance in China, and thus a more comprehensive approach is necessary. Such a comprehensive approach would move beyond the role of the state, which is the preoccupation of traditional theories of compliance, but without discounting the state as a key actor altogether in favour of a more bottom-up approach, as recent liberal theory does (Slaughter 2000). The state still plays a major role in compliance with international obligations, particularly in China, and in the field of IP, the role of the state is considerably more important than that of individuals or NGOs. Consequently, an inclusive model of compliance should incorporate features from several pre-existing theories of compliance to offer a more complete tool with which to analyse compliance with international obligations. This has proved to be the most useful approach to follow in assessing TRIPS compliance in contemporary China and it is proposed that this approach is also applicable to other international agreements and in other states.

Equally, this study has implications for the study of the development of law in China. Previous studies of law in China have tended to focus on one key concept of legal development to the exclusion of other concepts and theories. Concepts such as legal legitimation and transplantation, and selective adaptation alone, are insufficient to fully appreciate the complex and dynamic processes of legal development in China. It is undeniable that China’s development of modern IP laws has not been solely “a passive process of accepting Western rules; rather it is a dynamic process” (Bruun and Zhang 2016, p. 44). Thus, one could argue that an approach solely focused on the reception of legal transplants into Chinese law is limited and needs to be expanded to incorporate consideration of the other categories of influential factors used in this study. Consequently, it is proposed that the revised and dynamic model of compliance outlined in the previous section is applicable not only to compliance with other areas of international law, but also to other aspects of law within China.