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刚开始研究中国法律时，孔宏德(Peter Corne)得出的结论是：在中国的律师，无论是本土的还是外来的，“都抱有一种幻想”。孔宏德是一位在澳大利亚接受教育的律师，如今是英国律师事务所安 永实(Eversheds)上海代表处负责人。他表示：“像我一样的西方律师，以及留美归来的中国律师，都试图推动一种建立在西方教育基础上的法律体 系。”中国的法律体系仍与西方多数国家不同。虽然许多外国律师都在中国设立了代表处，但他们在中国不能正式执业，必须通过当地律所进行代理。
但孔宏德及其他驻上海的律师们表示，情况已有所改善。法官们接受了更好的培训。外国投资者起诉中国公司仿冒产品有时也能胜诉，尽管赔偿金额不大。
许多投资者和外交官表示，上海必须在这方面取得更大进步，才有望实现在2020年前成为国际金融中心的目标。
孔宏德表示，如今，中国私人企业之间的官司通常能够得到公正地解决。“假如另一方当事人也是私人，你就有理由预计，裁决将会在公正评判的基础上做出。”他表示，针对政府或国有企业的官司则要难打得多。
律师们表示，规模很大的外国投资者不太可能遇到非常糟糕的问题。美国律所富理达(Foley & Lardner)上海代表处负责人孙嘉鸿(Catherine Sun)表示，对于进行了大笔投资的公司，中国当局通常会确保它们得到很好的关照。规模较小的公司则要困难一些。
尽管如此，专接知识产权案件的孙嘉鸿表示：“客观地说，上海乃至中国的知识产权状况已有所改善。”她举了几个案例。其中之一是英国酒业公司帝亚吉欧 (Diageo)在2006年发现，Polonius威士忌的包装装潢与自己的Johnnie Walker黑牌威士忌极其相似，于是起诉Polonius威士忌的批发经销商蓝樽（上海）酒业公司(Blueblood (Shanghai) Wine Company)。中国当局在2006和2007年对蓝樽处以罚款，但该公司仍继续销售Polonius威士忌。
帝亚吉欧上诉到上海第二中级人民法院，索赔200万元人民币。法院判处帝亚吉欧胜诉，命令蓝樽赔偿这家英国公司125万元人民币。
在另一个案例中，Gucci发现上海某百货店销售带有Gucci为消费者所熟悉的“双G”相扣图样的鞋，由中国公司森达(Senda)出品。
森达向上海浦东新区上民法院辩称，森达是中国知名品牌，而且鞋是在百货商店的森达专柜销售，不会使消费者误以为是Gucci的产品。法院认为，消费者可能因此误以为森达的鞋与Gucci有关系，命令这家中国企业赔偿18万元人民币。
孔宏德表示，在中国打官司，赔偿金额相对较小，因为法院只考虑受损害方所遭受的直接损失。法院会考虑原告公司原本可能获得的利润，但不会处以惩罚性赔偿。
上海新创意中心“1933老场坊”的开发者及管理者刘恩沛(Paul Liu)也认为，中国法律体系的某些环节如今运行得相当好。“在上海，我从未遇到合同方面的问题，”他表示，“上海是中国最守法的城市。（中国）一些小城 镇如同拓荒前的美国西部。而在上海，人们遵纪守法。”
但他同时表示，关系十分重要。“在中国，你要搞清楚自己是在跟谁打官司，否则你就败了。你必须依靠关系。”
上海的许多律师和投资者都认为，有些时候，你必须也有政府的朋友。“在中国历史上，法律不如政治关系重要，”孙嘉鸿表示。孔宏德也赞同这种观点。 “我1995年起在这里开业，目睹了很多进步。社会风气变得更认可通过法律途径行事。”他补充称：“我发现自己的工作有意义多了，但为客户代理时，我会限 制自己的预期。我知道，当无法再依靠法律时，我必须去打通关系。”
这是否与世界上的其它地方不同？“某种程度上，不管在哪个国家，要想办事，你都必须有关系。在这里，你必须更加用心。”他表示。
译者/岱嵩
Legal services: The importance of friends
By Michael Skapinker
When he first began studying Chinese law, Peter Corne concluded that lawyers in China, both domestic and expatriate, “were perpetrating a kind of illusion”. Mr Corne, an Australian-trained lawyer who today heads the Shanghai office of Eversheds, the UK firm, says: “Western lawyers, like me, and Chinese lawyers who had been to the States and come back were trying to promote a system of law based on western training.” China still does not have a legal system that matches those of most western countries. While many foreign lawyers have offices in China, they cannot officially practise law in the country and have to act through local firms.
But Mr Corne and other lawyers based in Shanghai say there have been improvements. Judges are better trained. Foreign investors sometimes win cases against Chinese companies that have copied their products, although damages are not huge.
Many investors and diplomats say that more of this progress is vital if Shanghai is to have any chance of meeting its goal of becoming an international financial centre by 2020.
Mr Corne says that cases between private companies in China are, today, usually settled fairly. “If you're dealing with another private party, you have a reasonable expectation of getting a decision that could be based on an impartial judgment of the problem.” Cases against the government or state-owned companies are far harder, he says.
Lawyers say the largest foreign investors are unlikely to experience the worst problems. Catherine Sun, head of the Shanghai office of Foley & Lardner, a US firm, says the authorities will ensure that companies that have invested large sums are generally well cared for. It is harder for smaller companies.
All the same, Ms Sun, who specialises in intellectual property cases, says: “An objective observation of the IP situation in Shanghai and China is that it has progressed.” She points to several cases. In one, Diageo, the UK drinks company, found in 2006 that the packaging and decoration on Polonius whisky was substantially similar to that on its Johnnie Walker Black Label whisky. Diageo filed complaints against the Blueblood (Shanghai) Wine Company, a dealer and wholesaler of Polonius whisky. The Chinese authorities fined Blueblood in 2006 and in 2007 but the company continued to sell Polonius whisky.
Diageo took the case to the Shanghai No 2 Intermediate People's Court, demanding Rmb2m (£201,000, $293,000) in compensation. The court found for Diageo and ordered Blueblood to pay the UK company Rmb1.25m in damages.
In another case, Gucci successfully took action when it saw shoes on sale in a Shanghai department store that had Gucci's familiar double-G interlock pattern. The similar-looking shoes were made by Senda, a Chinese company.
Senda defended its shoes in the District People's Court in Shanghai's Pudong district, saying its brand was well-known in China and, as its shoes were sold from a Senda-franchised counter in the department store, there was no danger of customers confusing them with Gucci's products. The court held that there was a danger customers might believe Senda's shoes had a connection with Gucci and ordered the Chinese company to pay Rmb180,000 in damages.
Mr Corne of Eversheds says the relatively small awards in Chinese cases are because courts limit themselves to the direct damages the aggrieved party suffers. Courts will look at the profits the plaintiff company might have made, but will not award punitive damages.
Paul Liu, who is developing and managing 1933, a new Shanghai creative centre, agrees that parts of the legal system now work reasonably well. “I've never had a problem in Shanghai in terms of a contract,” he says. “Shanghai is the most legalistic city in the country. Small towns [in China] are the wild west. In Shanghai, they follow the rules.”
But he too says that connections are important. “In China, if you've got to the point where you have a legal case, you've failed. You have to rely on relationships.”
Many lawyers and investors in Shanghai agree that at some point you will need government friends too. “In Chinese history, legal issues are not as significant as political connections,” Ms Sun says. It is a point Mr Corne emphasises too. “I started practising here in 1995 and have seen a lot of improvements. The culture has evolved to be more accepting of legal ways of doing things.” He adds: “I find my work a lot more meaningful but I temper my expectations on behalf of my clients. I know when I can't rely on the law any more and beyond that I need to hobnob.”
Is that different from anywhere else? “To an extent you have to have connections in any country to get things done. Here you have to work a lot harder,” he says.
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