Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Look up keyword
Like this
1Activity
0 of .
Results for:
No results containing your search query
P. 1
SSRN-Id953247- Role of Lawyers in VN

SSRN-Id953247- Role of Lawyers in VN

Ratings: (0)|Views: 68|Likes:
Published by Wong Hoang

More info:

Categories:Types, Research, Law
Published by: Wong Hoang on Oct 20, 2009
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

07/13/2011

pdf

text

original

 
 
 Arizona Legal Studies
Discussion Paper No. 06-46
Doi Moi, the VBTA and WTO Accession: TheRole of Lawyers in Vietnam’s No LongerCautious Embrace of Globalization
David A. GantzThe University of Arizona James E. Rogers College of LawDecember 2006
This paper can be downloaded without charge from theSocial Science Research Network electronic library at:http://ssrn.com/abstract=953247
 
Doi Moi, the VBTA and WTO Accession:The Role of Lawyers in Vietnam’s No Longer Cautious Embrace of Globalization
David A. Gantz
 The enthusiastically Communist/socialist state that was Vietnam from thedepartureof U.S. troops in 1974 to about 1985 — what Carol Rose terms a “commandeconomy”
1
— had no use and little respect for attorneys, whether in the very limiteddomestic private sector, in government or from overseas. A few United States andFrench-trained attorneys remained after 1974, mostly in the Saigon area, but mostVietnamese who had been trained in the law left after the Communist takeover in 1975.During this more than twenty-year period, few lawyers were educated at law schools inVietnam—probably no more than 200 - 500 per year. A limited number were sentoverseas, usually to the U.S.S.R., where it has been argued that the “legal” education wasin fact far more focused on socialist ideology.
2
 However, by the early 1980s, first in the agricultural sector, and then morebroadly, it was becoming painfully obvious that the collectivization of agriculturalproduction, and the virtualprohibitions on private business, were damaging what was leftof the post-war economy,
3
and making it virtually impossible for the nation to generatefrom foreign or domestic investment jobs for the estimated one million Vietnameseentering the work force each year.
4
(Other causes of severe economic problems,including disastrous wars with Cambodia’s Pol Pot regime beginning in 1978
5
and Chinain 1979
6
, were important but are beyond the scope of this essay.)The end result of these challenges was the so-called “Doi Moi” (“renovation”)policy officially adopted by the Vietnamese Communist Party in 1986, after several yearsof debate, discussion and more than a little dissent from those in the government thatfeared an economic opening would threaten the stability of the regime.
7
The essence of Doi Moi as originally enacted was political and social renewal through rapid industrialgrowth and development.
8
Doi Moi was the beginning of a twenty year period thatbrought normalization of political and economic relations with the United States throughthe U.S. – Vietnam Bilateral Trade Agreement (“VBTA”) in 1995 and 2001,
Samuel M. Fegtly Professor of Law and Director, International Trade Law Program, University of Arizona, Rogers College of Law. Copyright ©2006, David A. Gantz
1
Carol V. Rose,
The “New” Law and Development Movement in the Post-Cold War Era: A Vietnam CaseStudy,
32 L
AW
&
 
S
OC
Y
R
EV
. 93, 97 (1998) [hereinafter “Rose”]
2
 
 Id.,
at 97-99.
3
R
OBERT
T
EMPLER
,
 
S
HADOWS AND
W
IND
:
 
A
 
V
IEW OF
M
ODERN
V
IETNAM
57-59 (Penguin, 1999)[hereinafter “Templer”]
4
 
 Id.,
at 342 (1998-1999 estimates).
5
S
TANLEY
K
ARNOW
,
 
V
IETNAM
:
 
A
 
H
ISTORY
54-56 (Penguin, 1997) [hereinafter “Karnow”]
6
Templer
 , supra
note
 
3
 ,
at 114, 285
.
 
7
 
 Id.,
at 3-4.
8
Luke Aloysius Mcgrath,
Vietnam’s Struggle to Balance Sovereignty, Centralization and Foreign Investment Under Doi Moi
, 18 Fordham Int’l L. J. 2095, 2096 (1995) [hereinafter “Mcgrath”].
WORKING DRAFT: NOT TO BE QUOTED ORCITED WITHOUT AUTHOR’S PERMISSION1
 
respectively,
9
and five years later saw Vietnam become a member of the World TradeOrganization
in January 2007, after approval of the WTO General Council inNovember 2006.
For purposes of this essay, the most important aspects of Doi Moiwere the initiation of policies aimed at encouraging foreign investment, stimulatingexports and increasing the competitiveness of the local economic structure (both state-owned and private), which meant legal reform (much more slowly than in retrospect wasdesirable and with more than a little backsliding), which in turn necessarily meant aresurgence of the legal profession and legal education.Part I of this essay briefly summarizes the economic (and to a much more limitedextent) political developments from 1974 to 1986. Part II views the development of theDoi Moi policies from 1986 to about 1995. Part III discusses developments in the 1995-2000 period, focusing on the negotiation and conclusion of the U.S. – Vietnam BilateralTrade Agreement “VBTA”). Part IV discusses the WTO accession process, completedwith Vietnam’s formal accession to membership in January 2007. Finally, Part Vdiscusses some recent developments in Vietnam indicating awareness by Vietnameseofficials that the legal system continues to have shortcomings, and plans for far-reachingreforms in the legislative process and the functions of the judiciary, as well as the role of lawyers in society.In each section, much of the emphasis is on the growing role and importance of the legal profession. The profession consists first of indigenous Vietnamese attorneysstaffing the Trade, Justice and other ministries responsible for negotiating and draftingthe trade agreements, preparing the implementing legislation and presenting those lawsfor enactment to the National Assembly, and assuring that the implementing process(including myriad regulations) continues at the ministry and sub-ministry levels.However, at least three other groups of attorneys played a significant role, the Australian,French, British, American and other foreign attorneys who staffed branch offices inSaigon and/or Hanoi beginning in the late 1980s, and the even larger number of “legalconsultants” from those nations, Canada, Singapore, Sweden and other European Unionnations (usually funded by bilateral aid agencies or the international financial institutions)who provided technical assistance (no doubt of varying quality and relevance) togovernment ministries, the National Assembly and various law faculties, among others.
 Finally, one should not underestimate the legal “education” provided to a very bright,
9
Agreement Between the United States of America and the Socialist Republic of Vietnam on TradeRelations, Jul. 13, 2000,
available at 
10
 
See
Marrakech Agreement Establishing the World Trade Organization [hereinafter “WTO Agreement”],April 14, 1994,
available at 
http://www.wto.org(creating the World Trade Organization in April 1994).
11
WTO Press Release,
General Council Approves Viet Nam’s
Membership, Nov. 7, 2006,
available at 
http://www.wto.org/english/news_e/pres06_e/pr455_e.htm (visited Dec. 11, 2006); WTO,
Vietnam to joinWTO on 11 January 2007 
, Dec. 12, 2006,
available at 
12
By way of example, the author has made six trips to Vietnam, to consult with the Ministry of Justice, theNational Assembly and a large group of actual or hopeful international trade law professors, supported atvarious times by the United Nations Development Programme, the Swedish International DevelopmentAgency, the World Bank and the U.S. – Vietnam Trade Council.
WORKING DRAFT: NOT TO BE QUOTED ORCITED WITHOUT AUTHOR’S PERMISSION2

You're Reading a Free Preview

Download
scribd
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->