Completing the WTO Implementation Process: Using the Omnibus Bill Approach David A. Gantz Professor of Law University of Arizona National Assembly, Dec. 19-20, 2005 1
Introduction During the past several years, more than 200 laws and laws and decrees have been submitted to the NA. During the most recent session some 14 bills were passed, including key laws relating to enterprises, investment, bidding, intellectual property, housing and taxes. National Assembly, Dec. 19-20, 2005 2
The NA has approved a law-making program for its 2006 sessions that includes 26 additional law and 37 ordinances and resolutions, many designed to make Vietnam s s legal system compatible with international standards, and to assure compliance with WTO rules. National Assembly, Dec. 19-20, 2005 3
This recent action will also be useful in convincing WTO Members that the NA, as well as the Vietnamese government, remains fully committed to WTO accession, and to the continuing process of modernizing Vietnam s s economy and legal structure, as soon as possible. National Assembly, Dec. 19-20, 2005 4
With the extensive legislative program in recent years, the government and NA thus already have extensive experience in translating WTO requirements into national legislation, and assuring that these actions comply with Vietnamese legislative practices. National Assembly, Dec. 19-20, 2005 5
Complexities of WTO Accession As all now realize, acceding to the WTO has become a very complex and difficult process: the number of new obligations, including WTO Plus obligations, has increased in recent years, particularly for major trading powers such as Vietnam, Russia and Saudi Arabia National Assembly, Dec. 19-20, 2005 6
WTO Members are no longer satisfied with a commitment by a new Member to enact implementing legislation; they want to see the legislation in place before they will admit the new Member In many cases, Members demand to see and review implementing regulations as well as the laws themselves. National Assembly, Dec. 19-20, 2005 7
Members expect a commitment on the part of new Members and their legislatures to continue full implementation beyond the date of accession, as is now being demanded of China Implementation is likely to provide enormous benefit for Vietnam s s economy and workers in the future, but may cause significant disruptions in the near term. National Assembly, Dec. 19-20, 2005 8
Success in meeting WTO obligations depends not only on the prospective Member s s continued determination to move forward, but also on the willingness of Member governments and the World Bank to provide continuing technical assistance and support, particularly in areas such as TBT/SPS and TRIPs.Full compliance for Vietnam, as with other developing nations, will likely require a decade or more. National Assembly, Dec. 19-20, 2005 9
An Omnibus Law? Given the success of Vietnam in adopting new laws and ordinances, why should Vietnam try the omnibus approach? After all, while the omnibus law approach is apparently legal in Vietnam, it has not been used in the past, at least in the area of implementing trade agreements. National Assembly, Dec. 19-20, 2005 10
Legality The spirit and general principles of the Law on Promulgation of Legal Documents appears to give the NA and it s s Standing Committee power to promote an omnibus law, and resolutions on enforcement of the Civil Code and Code of Civil Procedure have annulled various separate ordinances in the same bill. National Assembly, Dec. 19-20, 2005 11
The Prime Minister s s Directive No. 8 seemed to resolve any doubts about the legality of an omnibus bill in Vietnam, by directing the MOJ to coordinate a a document that can amend, supplement a number of provisions in many current laws and annexes..... National Assembly, Dec. 19-20, 2005 12
China did not use the omnibus approach, but perhaps they should have done so. It could have simplified the WTO implementation process both before and after November 2001. China s s spotty and incomplete implementation experience has made WTO accession more difficult for Vietnam. National Assembly, Dec. 19-20, 2005 13
Most other nations that use omnibus legislation for WTO compliance and for other trade agreements do so from the outset. Thus, when the governments of the U.S., Australia and Canada prepared omnibus legislation for submission to their congresses, it was a complete package of all necessary domestic law changes. National Assembly, Dec. 19-20, 2005 14
Using the Omnibus Approach in Vietnam For Vietnam, such an approach would makes little sense. By now, Vietnam has enacted most of the laws required to assure Vietnamese compliance with WTO obligations, and the remainder are being prepared for submission to the NA in May 2006. National Assembly, Dec. 19-20, 2005 15
However, there is still a strong rationale for consideration of a more limited use of the omnibus bill approach. It will help to assure that Vietnam is prepared for WTO accession as soon as possible, and convince WTO Members that Vietnam remains serious about early accession. National Assembly, Dec. 19-20, 2005 16
Despite the best efforts of the government and the NA assembly, it is likely that some of the laws and ordinances enacted to be compliant with WTO rules will not be considered fully consistent by the WTO Working Group. National Assembly, Dec. 19-20, 2005 17
There are several possible reasons: draft laws were not translated into English and submitted to the WTO in time for comments to be received before enactment the legislative process may have resulted in changes in the laws which will be considered unacceptable by the Working Party National Assembly, Dec. 19-20, 2005 18
Also, the accession process is still underway. Vietnam s s bilateral negotiations with the United States, Australia, New Zealand, Mexico, the Dominican Republic and Honduras (with the most difficult being the U.S. and Australia) are continuing. National Assembly, Dec. 19-20, 2005 19
It is likely, therefore, that in reaching bilateral agreements with the remaining WTO Members Vietnam will make commitments that require additional legislation, or changes probably minor in some of the laws and regulations that have recently been enacted. Some of these WTO- Plus obligations are difficult to anticipate. National Assembly, Dec. 19-20, 2005 20
Moreover, in maximizing Vietnam s negotiating strength, it would be foolish for the government to include in draft laws provisions implementing obligations to which Vietnam ultimately may avoid in the negotiations. Final legislation can be thus sought only after these negotiations are concluded. National Assembly, Dec. 19-20, 2005 21
The omnibus bill approach is a near ideal vehicle for a single piece of legislation that is required to make modification in a number of earlier laws. For example, if the WTO accession agreement ultimately requires a few changes in the recently enacted Investment Law and Companies Law, or laws affecting the telecom sector, the changes could be part of a single bill. National Assembly, Dec. 19-20, 2005 22
As in most other nations, the Vietnamese legislative process is complex and time-consuming. If, for example, Vietnam completes the bilaterals during the first quarter of 2006, any new obligations or changes in existing bills might still be wrapped up in a single bill in time for the May 2006 NA session. National Assembly, Dec. 19-20, 2005 23
Procedures A major objective of an omnibus bill is to avoid duplicating earlier efforts. Thus, instead of creating a new drafting committee, MOJ would likely continue the coordinating process that was created several years ago for WTO implementation laws and ordinances. National Assembly, Dec. 19-20, 2005 24
MOJ would also be responsible for assuring that any new WTO-Plus obligations from the remaining WTO bilateral accession agreements would be properly incorporated in the omnibus bill. National Assembly, Dec. 19-20, 2005 25
In the NA, since the Finance Committee has been responsible for most individual implementing bills, it could also assume primary responsibility for the omnibus bill. Other responsible NA committees and subcommittees, including but not limited to foreign affairs, would participate as advisable. National Assembly, Dec. 19-20, 2005 26
U.S. Experience In the U.S., the omnibus bill to implement trade agreements is drafted initially by an inter-agency committee managed by USTR. Since the U.S. has a bicameral congress, the Senate Finance Committee and House Ways and Means Committee have primary responsibility, with input from others such as the Commerce Committees. National Assembly, Dec. 19-20, 2005 27
Canada s s Experience In Canada, with its parliamentary system, the bill is drafted by a group of Ministry of Justice attorneys, who coordinate provisions with individual ministries (tax issues with the Finance Ministry, for example). There is also full consultation with the relevant parliamentary committees. National Assembly, Dec. 19-20, 2005 28
Transparency One risk of using the omnibus law approach is possible confusion. If there is a section of the omnibus bill that modifies the Law on Intellectual Property,, ministries and the public must be aware that this change has been made. In Vietnam, publication of the omnibus bill in the Gazette should be helpful, but further publicity may also be appropriate. National Assembly, Dec. 19-20, 2005 29
Type of Legal Instrument A law is apparently the strongest form of expression by the NA; it has a higher level of legal validity than a resolution. If matters subject to enactment in different forms law, resolution or ordinance are combined in one document, it should probably be as a law, to assure that earlier inconsistent provisions would be legally modified. National Assembly, Dec. 19-20, 2005 30
Effective Dates The various provisions of an omnibus bill do not necessarily have to take effect on the same date. Some may become effective immediately upon enactment (or publication in the Gazette). Others may be deferred until the date of formal WTO accession. National Assembly, Dec. 19-20, 2005 31