Big Pharma and Investment Arbitration

Investment Arbitration in the pharmaceutical sector raises some specificities. Regarding jurisdiction of arbitral tribunals, it is questionable whether the registration of a patent abroad or a patent license granted to a foreign partner constitutes an investment. Similarly, as health products are not ordinary goods, arguments according to which marketing authorizations or monopolies granted constitute an investment are real issues. On the merits, the invalidation of a patent, the refusal or withdrawal of a marketing authorization or the decision of a state authority to end a monopoly can be analyzed as a violation of some of the commitments made by States in the treaties they conclude. The aim of this study is to address these questions thanks to the awards already rendered, making it a useful tool for countries -like Vietnam- that wish to develop their pharmaceutical sector by attracting foreign investors.

Constitutional Theories of Emergency Powers and their Limits: Perspectives from Vietnam, India and Canada

This paper seeks to examine the available constitutional models of theories of emergency powers. Part I of the paper traces the historical origins and the subsequent development of emergency states, drawing lessons from the works of Machiavelli, Schmitt, Rossiter, Rousseau... Part II presents and discusses some of the most important contemporary theories of emergency powers that propose different views and perspectives on the central issue of the attribution and exercise of State powers in times of emergency, i.e., either in the hands of the executive, the legislative or the judicial branch of the state, and why. Part III illustrates the concerns pertaining to emergency powers by looking at examples of three specific countries, namely Vietnam, India and Canada.

Jurisdiction Limitation of National Courts with Respect to Civil Cases or Matters Involving Foreign Elements in Accordance with United States Laws and Vietnamese Law

Determination of limitation of jurisdiction of national courts with respect to civil cases or matters involving foreign elements has become an important aspect of judicial practice around the world as with the growing cross-border cooperation. The study on the subject matter helps to promote the efficiency in the civil procedure. On the one hand, it provides legal ground for national courts to determine their jurisdiction over the related civil cases or matters, and helps the plaintiff to initiate the legal action in the national court with competent to accept the case on the other. This article will analyse the U.S. laws as well as judicial experience in U.S. national courts on limitation of their jurisdiction in civil cases or matters involving foreign elements. It will focus on the cases in which the jurisdiction of the court is granted by mutual agreements of the relevant parties, frauds, force, immunities, forum non conveniens, limits imposed by the forum or the laws of the states where the transactions have been conducted. It will be followed by the critical assessments on the status of relevant laws and regulations of Vietnam and some recommendations for future development.

Analysis of the Recent Commercial Arbitration Development Plan of the Korean Government – Some Suggestions for Vietnam’s Arbitration Law and Policy

The settlement of commercial disputes by commercial arbitration is gradually becoming popular in the business community. In the course of economic integration, Vietnam has acknowledged the role of arbitration and attempted to develop its arbitration legal framework in compliance with international practices. However, Vietnam’s arbitration system still faces various issues and thus, has required further reform. There are often cancellations of the referee’s decision, the procedure to cancel the award often lacks clarity, and the venue for the arbitration center’s dispute to be resolved is limited. In addition, the management, quality assessment and training of arbitrators is one of Vietnam’s problems. In Asia, Korea is known as one of the most pro-arbitration jurisdictions in the region. Since the adoption of the Arbitration Act in 1966 that governs both domestic and international proceedings, the Korean arbitration legal framework has always been kept consistent with generally accepted international practices. Recently, the Korean government has introduced an action plan to further promote the robust development of the commercial arbitration industry over the five-year period, from 2019 to 2023, and the goal is to turn Korea into one of five countries that have the world’s best arbitration system. Given the close cultural background and integration strategy of Vietnam and Korea, it is believed that the Korean experience can serve as a good reference for Vietnam in developing commercial arbitration law and policy. This paper begins with analyzing the background of the Vietnamese arbitration system and highlighting some limitations of Vietnamese arbitration. It then switches to the Korean arbitration system and development plan on promotion of dispute settlement by arbitration. The paper focuses on analyzing four main strategies that would: (1) strengthen the foundation of the arbitration industry; (2) activate domestic arbitration; (3) secure competitiveness in the arbitration industry; (4) expand the attraction of international arbitration. The Korean action plan can suggest some interesting strategies for Vietnam to further strengthen its commercial arbitration system.

The Interpretations of Exceptions and Limitations Under Vietnamese Copyright Law in Case of Quotation of a Work

The exceptions and limitations in copyright law have been firmly established by the Berne Convention. Indeed, these foundations consolidate and facilitate the unification in protecting copyrights of member states’ domestic laws. Nevertheless, the understanding and interpretations of each member are notably different and inadvertently maintain the inconsistency in international law. On that basis, the article analyzes the practice of Berne Convention’s codification and application in Vietnamese laws and judicial practice. Thereafter, the article emphasizes that Vietnamese intellectual property law has attempted to internalize the Berne Convention’s provisions on the limitations and exceptions of copyright law and proposes solutions to ameliorate such attempts. The article then shows the practice in Vietnamese judgment in order to show how Vietnamese intellectual property law receive the provision of limitations and exceptions in copyright law.

Asean is in the Movement of Combating Corruption: Should New - Generation Ftas Be a Promising Forum for Anti-Corruption Enforcement of Asean in International Business?

For a long time, corruption has been a shrilling concern for ASEAN member states for the reason of being one of the primary causes restricting the integration of these nations into international trade and efforts at globalization. In fact, over the last few years, ASEAN has undertaken a myriad of policies and improved the regional legal framework to combat corruption such as the signing of UNCAC and new free trade agreements and the establishment of the ASEAN Economic Community. Notwithstanding this, according to the statistics of global organizations, the levels of anti-corruption in ASEAN countries, except Singapore and Brunei, are relatively low. This mainly derives from the fact that the national legal framework in each of the member states has not satisfied fully when the political regime lacks democracy, governmental authority is insufficiently impartial and the awareness of citizens about corruption is still moderate. Simultaneously, the international agreements to which ASEAN member states signed are only the model for domestic enforcement mechanisms, and seem to be silent on international enforcement of anti-corruption. To date, the WTO is known as a global agency for international business, to which all ASEAN countries have acceded. Under the WTO, there is no official mechanism for enforcement of anti-corruption; nevertheless, this organization acknowledges, encourages and states indirectly this issue via transparency, accountability or governance in their agreements (Government Procurement Agreement and Trade Facilitation Agreement). Under the Doha negotiation round, WTO member states failed to gain consensus to dismantle tariffs, resulting in the emergence of a myriad of bilateral and regional trade agreements out of the scope of the WTO. These have gradually developed to be so-called new-generation free trade agreements in the hope of mitigating the traditional trade barriers as well as lessening non-tariff ones, such as governance and transparency. The recent development of new-generation FTAs between ASEAN and/or ASEAN member(s) and the external trading partners that pay high attention to anti-corruption issues, i.e., EU, Australia, Canada, Japan, US, may create a promising forum for anti-corruption enforcement of ASEAN in international business in the future. This article will elaborate on all aforementioned issues before a reasonable conclusion is delivered.

Offsprings Conceived Via Assisted Reproductive Technology By a Single Woman: A Matter of Father Identification

This article sets out the matter of the sperm donor’s identification as the father of the offspring conceived via assisted reproductive technology (ART) by a single woman. Through the lens of current regulations that are used for comparison with some other countries, the author lays out some proposals relevant to the mentioned matter.

The Free Trade Agreement and Investment Dispute Settlement Between the European Union and Vietnam: A Critical Assessment

The European Union (EU) is an open market economy, and against the rise of protectionism globally, the ‘Global Europe: Competing in the world’ communication of European Commission in 2006 reflected the EU perspective that Free Trade Agreements as alternatives can go further and faster in promoting openness and integration, by tackling issues which are not readily available for multilateral negotiations and by preparing the stepping stones for the next level of multilateral liberalization. After the prolonged negotiations and the EU’s legislative processes, the European Parliament gave its consent to both agreements of European Union – Vietnam Free Trade Agreement and Investment Protection Agreement on 12 February 2020. Those bilateral instruments promote enhanced transparency and regulatory best practices that are consistent with existing international norms or standards, also an important stepping stone and a show-case for the EU’s longer-term goal of a region-to-region (EU - Southeast Asia) trade deal. Those agreements have established a new two-level judicial structure with the strong judicial character (Investment Tribunal System – ITS) which Vietnam has accepted via legally binding commitments. It is important for Vietnam to follow the good governance standards and the rule of law principles. If the ITS works well, it will provide additional safeguards and guarantees to investors whereby FDI flows to Vietnam are likely to increase. Finally, the ITS regime provides a powerful incentive or a catalyst to review and modernize the domestic legal system of Vietnam not only to improve the investment eco-system in Vietnam but to pave the way for optimization of its economic potential and competitive power in the region (i.e. in the ASEAN).

The EU and China in International Negotiations on Trade-Related Intellectual Property Rights – Cooperation and Challenges

In the multilateral forum of the WTO, trade-related intellectual property issues constitute one of the reasons for the dilemma in Doha negotiations. It is interesting to note, however, an increasing convergence between the EU and China’s policies in supporting the improvement of international intellectual property (IP) protection, and these two actors have even formed an alliance to promote stronger protection for the geographical indications. In order to understand the EU’s and China’s standpoint in international IP regulatory cooperation, it is necessary to examine their interaction and proposals in the WTO framework. This examination will provide insight into the issues on which these two major actors are readily able to reach agreement. It will also reveal the issues on which their differences still remain or have gradually narrowed to facilitate a rapprochement of views; accordingly, this paper reviews cooperation between the EU and China in multilateral negotiations on genetic resources and protection of geographical indications. The study will further examine the challenges leading to obstruction of the Doha negotiations.

The Rules Applicable to Conflicts of Interests for Canadian State Representatives

Conflicts of interest among public officials and public servants have long been an issue of public concern. This paper discusses the various legal instruments implemented by Canada as well as the legal principles that directly address the different aspects of this issue in Canada