Vietnam's Membership of the WTO: An Analysis of the Transformation of a Socialist Economy Into an Open Economy with Special Reference to the TRIPS Regime and the Patent Law Ir ", Thi Lan Anh Tran Submitted in accordancewith the requirementsfor the degreeof Doctor of Philosophy The University of Leeds School of Law July, 2009 The candidateconfirms that the work submitted is her own and that appropriate credit has been given where referencehas been made to the work of others. This copy has been supplied on the understandingthat it is copyright material and that no quotation from the thesis may be published without proper acknowledgement. -11- Acknowledgements I would like to express my extreme appreciation for the opportunity to work with my supervisor, Professor Surya P. Subedi, and thank him for his advice and support. His inspiration and guidance have not only kept my research on track but have also provided a great motivation for my further research and legal career. I also would like to acknowledge the guidance of Professor Peter Vincent-Jones especially in the area of research methodology. Their supervision and advice have assisted me greatly in developing my thesis, and will always be remembered with a deep sense of gratitude. I also would like to thank the Ministry of Education and Training of Vietnam for their financial support for my doctoral research. Great thanks also due to the University of Leeds,the School of Law and all lecturers, staffs and friends here who have helped me in so many ways. A special thank to my best friend in Leeds, Ms Jaynee Moon and her family, including her loving and caring mother, for their numerous act of kindness extended to me and to my daughter during my stay in Leeds. Without their support and friendship, this work could not have been accomplished. Finally, I would like to thank my family, especially my daughter, Ha Linh, who has been like my friend, for their unconditional support in everything that I have done, and everything I wish to do in the years to come. Words can not expresshow much their care and support meansto me. Their great love is "the gift of life" and helps me to fulfil my aspiration, and for this I will always be grateful. - 111 - Abstract This study is designed to examine Vietnam's attempts to reform its economic and legal system in order to accelerateits economic developmentand the challengesit is facing as a result of its membership of the WTO. The thesis revolves around the following central research question: How has the Vietnamese legal system respondedto the challengesbrought about by modernisation driven by this country's membership of the WTO and what improvements are neededin its legal system to ensurethat this agendaof modernisationis reconciled with the needsof its people as well as with the demands of the international trade and the intellectual property protection agenda. After a long period of negotiations Vietnam became the 150th WTO member on 11th January 2007. Like China, Vietnam has also been pursuing. a policy of economic liberalization since 1986 while maintaining a socialist political system.On the road to economic development and prosperity for the people, Vietnam accepted many new obligations resulting from its WTO membership. Consequently, the country is now going through a period of breathtaking changes not only in transforming the economybut also all aspectsof its legal system. By joining the WTO, Vietnam representsa unique case of an attempt to reform a centrally planned economy in order to transform itself into a system which was supposedto be compliant with the multi-lateral trading system led by the WTO, and based on the values of capitalism. The economic and legal transformation that Vietnam is going through as a result of membershipto the WTO, and the nature and scopeof obligations that Vietnam was required to undertaketo become a member of this world trade body, makes a fascinating case for study. While still maintaining a single party political system, a huge transformation has been carried out in the legal framework of Vietnam in the past 20 to 25 years to bring the Vietnamese legal system up to the international legal standards expected by foreign trades and investors interestedin doing businesswith and in Vietnam. iv- - Vietnam has finished its first few years with the WTO "machine" in operation and this country is now trying to progress with the same speed as with other WTO members. In order to deal with the challenges and to gain from the opportunities arising from its WTO membership appropriately, Vietnam is launching plenty of new initiatives in socio-economicpolicies and in the national legal system as well. However, the country is still facing many challengesconcerning the integration of the main principles of international trade and economic law into a socialist legal system. It is in this context that this thesis examines the process of reform, its weaknessesand strengths,the merits and demerits of Vietnam's membershipof the WTO with particular reference to the obligations arising from the international intellectual property regime, and proposes a set of recommendationsdesigned to better equip Vietnam to deal with the challengesahead. The focus is on the strengths and weaknessesof various reform programmesundertaken by the country and the lacunaethat still exist in its legal system. -V- Table of Contents Acknowledgements ii .................................................................................................... Abstract iii ........................................ ............................................................................. iii Table Contents of ...................................................................................................... v Tables ....................................................................................................................... xii Table Cases of ......................................................................................................... xiii Table Treaties of ..................................................................................................... xiv Abbreviations ......................................................................................................... xvi Chapter One: Introduction 1 ...................................................................................... I. 1 Background Study Current Research 1 of and ................................................ I. 1.1 The Socialist Republic of Vietnam and the WTO's membership..................................................................................... .1 1.1.2 The TRIPS Agreement its Application in Vietnam and ................. .4 1.1.3 Using Piracy IP Bankruptcy? 5 products or ........................................ 1.1.4 Special Effect of the Cultural Norms and Social Attitudes of Asian History 7 .................................................................................... 1.1.5 The Interaction Patent Law Public Health in Vietnam 7 of and ......... 1.1.6 Current Research 10 ............................................................................ 1.2 ResearchQuestions 11 .................................................................................... 1.3 Research Approaches Data Collection Methods 13 and ................................. 1.3.1 ResearchApproaches 13 ..................................................................... I. 3.2 Data Collection Methods 17 ............................................................... 1.4 Organization Thesis 19 of ............................................................................... Chapter Two: The World Trade Organization Developing Countries 22 and ...... Introduction 22 ...................................................................................................... II. 1 History the WTO its Current Issues 23 of and ............................................. 11.2 The WTO Legal Regime 27 ......................................................................... 11.2.1 The Negotiating Principles the WTO Agreements 27 and ................ 11.2.2Main Functions the WTO 29 of ......................................................... 11.2.3The WTO 32 structure....................................................................... - vi - 11.2.4Basic Principles WTO 33 of the ........................................................ 11.2.5The WTO Economic Globalization 36 and ....................................... 11.3 The WTO Legal System And International Economic Law 38 ................... 11.3.1A SystemBased on Rules for Global Economic Development 38 .................................................................................. 11.3.2 An Effective Trade Dispute Mechanism 39 ...................................... 11.4 Developing Countries in the WTO Legal Regime 42 .................................... II. 4.1 The Definition Developing Countries 42 of ...................................... 11.4.2Special and Differential Treatment for Developing Countries.....44 11.5 The WTO's Role in Global Economic Development and the ChallengesAhead 48 .................................................................................... 1.5.1 The Rights to Develop for Developing Nations 49 ............................. 11.5.2 The Doha Development Agenda and the Meaning of a "Development Round" 50 ................................................................... 11.5.3 Free Trade in Agriculture Poverty Reduction 54 and ........................ 11.5.4 Expanding of Imported