Nacional

The word „flexibility‟ is used in TRIPs several times. Initially, it appears in the statement that the Agreement recognizes:

the special needs of the least developed country Members in respect of ma ximu m fle xib ility in the domestic imp le mentation of laws and regulations in order to enable the m to create a sound and viable technological base.284

This provision can be narrowly understood as referring to the least-developed country members only. This context could be given to some other provisions, including those in Articles 66 and 67.

282 _{A view on the world‟s legal fa milies inc luding Ro manistic, Ge rmanic , Nordic, Co mmon Law or Anglo -}

American, and other lega l cultures and traditions including Ch inese, Japanese, Islamic, and Hindu see Konrad Zweigert and Hein Kotz, Introduction to Comparative Law (Clarendon Press, 1998) 66-315. Another view o f legal trad itions of the world with Chthonic, Ta lmudic , Civilian, Scandinavian, Russian, Isla mic , Co mmon, Hindu, Buddhist, Chinese, and Japanese Laws see Patrick H Glenn, Legal Traditions of the World (Oxford University Press, 2nd ed, 2004) rev iewed by Nicholas HD Foster „A Fresh Start for Co mparative Legal Studies? A Collective Review of Patrick Glenn‟s Legal Traditions of the World, 2nd Edit ion‟ (2006) 1 Journal of Comparative Law 100-199.

283

TRIPs Agree ment art 1(1). A lso, Article 4 of the Washington Treaty permits me mbe rs to decide the protection of integrated circuits either by a specific la w or any other laws or a co mb ination o f any of those laws such as copyright, patents, utility models, industrial designs, unfair co mpetit ion, etc.

Nonetheless, TRIPs flexibility can be understood in a more extensive sense as the

Agreement produces choices and alternatives without mentioning „flexibility‟.285 In respect of this, the application of TRIPs‟ flexibilities can be widened to all WTO members,

including the less-developed country members, whether they are developed or developing nations, under civil law or common law traditions. Flexibility can also be conceived from the language of TRIPs and its interpretation leaving members with choice, room, space, gap, freedom, liberty, latitude, leeway, discretion, allowance, and permission in its implementation.

From this perspective, TRIPs‟ flexibilities are often marked by the modal auxiliary, „may‟.286

Other markers include the use of the adjective „free‟287 or the phrases „at least‟ or „no less than‟.288

In some cases they might be more difficult in locating or using because of the complexity of the language used in the relevant provisions. Under TRIPs Article 40:2, for example, the word „may‟ is repeated three times in a long and complex structure detracting from its general facilitative meaning. Flexibility is also a significant concept in the 2001 Doha Declaration on the TRIPs Agreement and Public Health. This is further considered in Chapter 5 in the context of patents and the protection of plant varieties in Vietnam under TRIPs‟ flexibilities.

This thesis also uses the concept of flexibility but in a wider sense. As observed in the preceding paragraphs flexibility is explicitly used in a number of places in TRIPs and by implication in other places. While the use of flexibility in this thesis is used to described the

285 _{This meets the dictionary definition of the word. Co mmon ly, „fle xibility‟ is defined as „the quality of being}

flexib le‟, „p liancy‟, „adaptability‟, „freedom fro m stiffness or rigid ity‟ while „flexible‟ is defined as „capable of being bent, admitting of change in figure without breaking‟, „capable of modification or adaptation, pliant, supple‟ according to The Shorter Oxford English Dictionary (Oxfo rd Un iversity Press, 1973) 768.

286

See TRIPs Agreement, eg, arts 1(1) the second sentence; 3(2); 8; 14(4) the second sentence, (6) the first sentence; 15 (1) the third and fourth sentences, (3) the first sentence, (5) the second sentence; 17; 19(1) the first sentence; 21; 24(7); 25(1) the second and third sentences; 26(2); 27(2)-(3); 29; 30; 31(b) the first and second sentences, (k) the second sentence; 37(1) the second sentence; 38(3); 40(2); 43(2); 44(2) the first sentence; 45(2); 47; 48(1) the second sentence; 50(5); 51; 57 the third sentence; 58(a ); 60; 61 the fourth sentence; 62(1); 65(3)-(4); and, 70(4) the first sentence.

287

See TRIPs Agreement, eg, a rts 1(1) the third sentence, 25(2) the second sentence, and 34(2).

288 _{See TRIPs Agree ment, eg, arts 11 the first sentence; 12; 14(5); 18; 19(1) the first sentence; 26(3), 34(1) the}

language used in TRIPs it is also used to describe the processes for its implementation in national law, its interpretation and its enforcement. In this context its meaning extends to synonyms which are associated with flexibility such as pliable or supple or even soft. „Soft‟ as in „soft law‟ has been used in the last decade to describe some features of law‟s impact on regulation.289 These concepts can be used to describe the role or activities undertaken by a relevant actor in relation to TRIPs in different contexts and circumstances. It is

impossible to understand Vietnam‟s strategic flexibility in the decisions it made in the process of acceding to the WTO and coming under obligations to implement the TRIPs Agreement to suit its own purposes as having the same meaning as „flexibility‟ when

specifically used in the provisions of TRIPs or Vietnam‟s corresponding laws, for example.

In this thesis TRIPs‟ flexibilities are separated into those found in general provisions, or Part I – General Provisions and Basic Principles, and others in Parts II and III, or standards concerning the availability, scope, use, and enforcement of intellectual property rights.290 The latter are discussed in Chapters 4, 5, 6, and 7 while some of the former are examined within the next chapter, or Chapter 3.

289 _{See, eg, Robert Ba ldwin, „Regulat ion: After Co mmand and Control‟ in Ke ith Hawkins (ed), The Human} Face of Law (Oxford University Press, 1997) 113-22. „Soft la w‟ is used to describe self regulat ion including the collective arrangements which may be non-lega l, and/or involve no government intervention, unilateral adoption of standards, the involvement of industry in rule -formu lation, neo-corporatist arrange ments where the collective shares authority with the state to make dec isions regarding standards, monitoring, and enforcement, but where the relat ionship with government may be diffe rent, and/or where others apart fro m those being regulated may play a role (editors, stakeholders). „So ft‟ is also used in a less technical sense by Konstantinas K Athanasakou in „China IPR En forcement: Hard as Steel or Soft as Tofu? Bring ing the Questions to the WTO under TRIPs‟ (2007) 39 Georgetown Journal of International Law 217-245.

290

A classification of TRIPs‟ fle xib ilities, presenting in a report on the protection of patents in particular, into four classes is seen from W IPO‟s. They are: the appropriate method of imp lementing TRIPs‟ provisions; the design of members‟ intellectual property system behind certain issues under TRIPs which are not addressed such as the ownership of patents; or not defined such as the definition of invention; and, those which are prescribed as alternative choices for the me mbe rs such as „whether the best mode require ment be required or not‟: WIPO Standing Co mmittee on the Laws of Patents (Twelfth Session 23-27 June 2008), Report on the International Patent System, WIPO Doc SCP/ 12/ 3 (15 April 2008) 43 [146].