What's the Connection? Vietnam, the Rule of Law, Human Rights and Antitrust
Ben-Asher, Dror, Houston Journal of International Law
Foreign attempts to support advancing the rule of law(1) in Vietnam have taken many forms. In addition to focusing almost exclusively on economic law, existing legal assistance projects tend to concentrate on obvious targets such as the National Assembly, the courts, and human rights in general.(2) This essay proposes taking a different direction through the involvement of the United States in a somewhat unique domain for foreign legal aid: the introduction of an antitrust regime.
This article aims to create a specific model demonstrating the potential social benefits that adherence to the rule of law may deliver. It introduces a project design that with U.S. help will provide an antitrust system to Vietnam. The example proposed here requires, among other things, the drafting of country-specific antitrust legislation and the establishment of adequate enforcement mechanisms. The overall hope is that successful implementation of the outlined project will significantly promote the advancement of the rule of law and human rights in Vietnam. Possible improvements in U.S.-Vietnamese relations, as well as the enhancement of U.S. commercial interests in Vietnam, are also envisaged.
Part II briefly outlines the relevant political and legal background. Part III, forming the bulk of this essay, discusses the rationale for a U.S.-backed antitrust project. Part IV considers in some detail the project's strategy and proposed implementation, and Part V describes a number of possible risks arising from it.
The general approach taken here is that utilization of extensive U.S. experience in the antitrust field can produce noticeable gains that will be felt by the Vietnamese society as a whole. At the same time, an antitrust project is not overly ambitious and avoids antagonizing the Vietnamese leadership.
A. General Background
Vietnam(3) has two main historical features. The first feature is constant wars.(4) The second feature is strong political influence by various foreign powers, including China, France, the former Soviet Union, and the United States.(5) Indeed, the effects of Confucianism, Colonialism, Communism, and local traditions are manifested in the legal system of today's Socialist Republic of Vietnam.(6) In 1986, pursuing economic prosperity, Vietnam embarked on a course of economic reform called doi moi, meaning renovation.? Despite many obstacles, the policy of doi moi continues today largely because the Vietnamese Communist Party (VCP) appears to assume that its future is firmly pinned to continuing economic growth.(8)
B. Political and Legal Reforms
Vietnam's movement toward a market-oriented economy is accompanied by economic legislation considered necessary for that purpose.(9) While the VCP seems determined to adapt the legal system to the needs of the changing economy,(l0) Vietnam remains a one-party state under their leadership.(11)
Stemming from this political and economic state of affairs are a number of contentious issues including the suitability of the separation of powers doctrine, the need to restructure the central state apparatus, and the protection of human rights.(12) More specifically, legal reforms raise serious concerns about the independence of the judiciary, the legislative struggle for power, the role of the executive within the legal system, and the fundamental problem of conflicting legal construction models.(13) In summary, the role of the VCP and the related issue of the rule of law are sources of continuing tension within Vietnam.
III. PROJECT RATIONALE
The objective of the scheme outlined here is to actively support the evolution of the rule of law in Vietnam while remaining aware of the interests of U.S. businesses and others.
1. Primary Objective: Establishing the "Rule of Law."
Relying on the "Western" model as a yardstick for evaluation, the significant elements of the rule of law opposing governmental arbitrariness existed in traditional Vietnam. …