On June 15, 2020, China’s Supreme Court released an exposure draft on several provisions concerning evidence specifically related to civil litigations involving intellectual property matters.

The Draft contains five chapters and 53 provisions, encompassing aspects from adducing evidence by the parties, to evidence investigation, collection and preservation, evidence exchanging and cross-examination, as well as evidence assessment and admissibility.

The Draft attempts to codify some customary practices. Article 5 enumerates admissible evidence in ascertaining damages for intellectual property infringement, which includes account books, accounting vouchers, annual reports of listed companies, assertions made in the company websites or brochures, industry margin, appraisal reports, IP licensing contracts, as well as the dossiers of the market regulation , taxation and financial authorities. Article 7 exempts the parties’ burden of proof in proving the primary facts that have been ascertained by administrative decisions, provided that either no administrative proceeding has been initiated to challenge such decision or the said decision has been upheld by effective court judgments, unless there is counter-evidence to prove otherwise. Article 45 establishes the principle in ascertaining the authenticity of electronic data: courts may acknowledge the authenticity of electronic data, inter alia, those originating from the authorities, legalized by a public notary or provided/confirmed by a neutral third-party evidence depository platform, unless there is counter-evidence to prove otherwise. These are just a few examples.

We will continue monitoring the progress of the Draft.

Contributed by: Cindy Zhen