A MODO DE CONCLUSIONES

Related to the issue of legislators not being able to foresee everything which will happen is the issue of change in technology and business practices. Law may get out of date, or tend to guess after the event. It may anticipate the immediate future but not be able to predict the long term future with any accuracy. Codified legal systems represent what Hayek called the „synoptic delusion‟ and which was one of his reasons for preferring judge made law over legislative codes.148 It assumes that it is possible to survey all the available information

143 _{WTO News, Speeches – DG Mik e Moore: Ministerial Trade Conference for Central and South East} Europe (Zagreb - Croatia , 11-12 June 2002) <http://www.wto.org/english/news_e/spmm_e/spmm87_e.ht m>.

144 _{WTO Trade Policy Revie w, First Press Release - Secretariat and Government Summaries: Romania} September 1999 <http://www.wto.org/english/tratop_e/tpr_e/tp115_e.ht m>.

145 _{The detailed trac ing of how Vietna m met its obligations, and how it used the fle xibilities open to it, is}

taken up in Chapters 3 to 7 of this thesis.

146

One re lates to Vietna m‟s obligations to permit 100 pe r cent fore ign owned joint stock companies to establish themselves in Vietnam: M inistry of Trade, Báo cáo tóm tắt kết quả đàm phán gia nhập Tổ chức

thương mại thế giới và phê chuẩn Nghị định thư gia nhập Hiệp định thành lập Tổ chức thương mại thế giới

[The Brief Report to the National Assembly on the Negotiating Results to Accede to the World Trade Organization and Approve the Accession Protocol] 1, 5 < www.ch inhphu.vn> (visited 17 April 2007).

147

On 12 August 2008, eg, according to the National Office of Intellectual Property (NOIP)

<www.noip.gov.vn> (visited 9 March 2009) the Office and the Vietna m Intellectual Property Association did hold a seminar with the ma in theme o f trade mark protection.

148 _{Friedrich A Von Haye k, Law, Legislation and Liberty (Volu me 1 Ru les and Order) (Chicago Un iversity}

which may be relevant.149 This must always fail to take adequate account of the „dispersed knowledge‟ of a large community.150

It is even more problematic if that knowledge changes rapidly.

In general, law is created sometime after the technological development it seeks to control or regulate. This seems contrary to notions that law on intellectual property is often made together with new advances in technologies. This is shown by copyright protection. It commenced in Europe 200 years after the mid-15th century invention of the machinery printing process. International law can take even longer to catch up. The first national legislation protecting copyright in printed material was in 1709.151 It was not until 1883 that the Berne Convention sought to harmonize national laws in protecting literary and artistic works. The Rome Convention 1961 and the Washington Treaty 1989 were signed relatively long after the development of technologies in the fields of radio and television broadcast and semiconductor products or chips.152 Technology changes so rapidly that even the national laws of developed states with well-resourced legal systems may be out of step.153

In the case of Vietnam‟s accession to the WTO, which brought it under the obligation to implement TRIPs in its national laws, changes were occurring in respect of technology but also in major foundational principles on which its national economic life was based and, consequently, in economic transactions. The country was in transition from a system of state or collective ownership to a mixed economy with private ownership.

149 _Ibid. 150

Ibid.

151

The Statute of Anne, 1710 <http://www.copyrighthistory.com/anne.html> (visited 29 March 2010).

152

See, respectively, M Stephen Stewart and Ha mish Sandison, International Copyright and Neighbouring Rights (Butterworths, 1989) 221; Yinghua Min and Charles Stroud, „Introduction‟ in Laung -Terng Wang, Cheng-Wen Wu and Xiaoquing Wen (eds), Very Large Scale Integration Test Principles and Architectures: Design for Te stability (Elsevier Morgan Kaufmann Publishers, 2006) 1, 1.

153

In the United Kingdom the 1990 Hu man Fe rtilization and Emb ryology Act has been found to be defective in screening emb ryos to find suitable donor matters for siblings with life threatening illness, „The IVF La w is out of Date‟ The Independent (2002). But see also „Most Exc iting Breakthrough in IVF Treat ment in 30 Yea rs Could Trip le Nu mber of Births‟ by Steve Corner (17 May 2013) (following the 2008 Hu man Fertilization and Emb ryology Act) <www.independent.co.uk> (visited 9 March 2009 and 28 September 2014 respectively).

This has required dramatic change to the laws and legal systems of states in transition, including China.154 Vietnam undertook a time-consuming and costly program of reviewing its legislation.155 It led to the removal of both laws and other instruments.156

The program is on-going. There are considerable complaints about business licenses by business people but their abolition is practically difficult because of the local administration or bureaucracy.157 The Government is committed to reduce them but the system is often used to extend beyond licensing to the management of enterprises.158 In addition, the administrative system of enforcement, discussed in Chapter 7, is employed to levy fines which are difficult to review in the Administrative Courts.159 The Courts refer to inconsistencies between the 1998 Law on Complaints and Denunciations and the 1996 Ordinance on Procedures for the Settlement of Administrative Cases to give themselves the flexibility to reject complaints.160

International law is also not easily changed to respond to changed circumstances. A review of a treaty is a very time-consuming and uncertain process, especially where there are over

154

In China, legal reform progra ms had led to the re moval of appro ximately 532 statutes up to May 2002: Shan Hailing, The Protection of Trade Secrets in China (Kluwe r La w International, 2008) 13. A lso, over 2000 laws, regulations, and rules on trade in goods and in services, and trade -related intellectual property rights were adopted, revised, and abolished during the period fro m 1999 to 2005: WTO Trade Policy Review,

Report by the People’s Republic of China, WTO Doc WT/TPR/ G/ 161 (17 March 2006) [45].

155

This was in itiated with Direct ive 166/CT of 1 January 1989 on Rev iewin g Laws and Regulat ions System [Ch ỉ thị của Chủ tịch Hội đồng Bộ trưởng về việc rà soát hệ thống văn bản pháp luật] and continued with Decision 355/TTg of 28 May 1997 on Establishing the Govern ment Co mmission for Entirely Revie wing and Codify ing Normative Legal Docu ments [Quyết định của Thủ tướng Chính phủ về việc thành lập Ban chỉ đạo của Chính phủ về tổng rà soát và hệ thống hóa văn bản quy phạm pháp luật]: Online Information Agency of the Socialist Republic o f Vietna m Govern ment < www.ch inhphu.vn> (visited 11 Ma rch 2009).

156 _{„Of an estimated 270 licenses controlling market access, eighty -four were abolished by the Prime M inister}

in Dec ision No.19-2000-QĐ-TTg on the Revocation of all Types of Licenses Inconsistent with the Provisions of the La w on Enterprises (2000)‟: Australian Govern ment‟s Overseas Aid Progra m, Vietnam: Legal and Judicial Development (2000) 8 <http://aid.dfat.gov.au/publications/Documents/vietnam_wp3.pdf>.

157

See, eg, Tuổi Trẻ Online, „Khổ vì g iấy phép‟ [Miseries with Business Licenses] (9 June 2007)

<www.tuoitre.co m.vn>; Hội Máy Tính Thành Phố Hồ Chí Minh [Ho Chi M inh City Co mputer Association], „Nóng bỏng… giấy phép‟ [Totally Hot... Business Licenses] (15 October 2005) <www.hca.org.vn>;

VietNamNet, „Giấy phép kinh doanh: “Đủ tốt” và “Đủ xấu” để cải cách‟ [Business Licenses: “Good Enough” and “Bad Enough” to Reform] (7 January 2006) < www.v ietnamnet.vn> (v isited 12 March 2009).

158

Gillespie, above n 12, 181-2.

159 _{Gillespie, ibid, 196-7.} 160 _Ibid.

100 contracting states.161 The Washington Treaty, dealing with the protection of layout- designs (topographies) of integrated circuits, exemplifies the failure to agree which has led to its never coming into force.162 Parts of it are drawn on to constitute TRIPs.

The international agreements constituting the WTO are no different. Opposing opinions are unavoidable in the WTO with more than 150 members, especially over sensitive but vital national issues relating to trade. Progress on filling gaps proceeds slowly.163 Where the gaps are not filled members are left without mutual obligations about how they will be dealt with. Some members may be bound by free trade agreements between themselves. This can be seen in the United States-Vietnam Bilateral Trade Agreement.164 Others are left free to deal with them as they wish in their own national laws.