LERAP – Comparative Law Component Report 2003
LERAP – Comparative Law Component June 9-13, 2003 Mission Outputs Report
Prepared by Professor William Neilson and Ms Caron Rollins
1. Current Comparative Law Research Staffing and Organization
Note: the Institute for Legal Research (ILR) is now known as the Institute of Legal Science by reason of Decree #62 (6 June 2003).
Decision No. 447/2001 of the Minister of Justice prescribed the duties and rights of the ILS and, in addition, identified the complementary responsibilities of the Centre for Comparative and International Law within the ILS to “cooperate with other departments inside and outside the MOJ in conducting research and training on comparative law”. The Centre is usually referred to as the “Comparative Law Group” within the ILS and its staff complement is composed of ILS, other MOJ and also HLU faculty researchers.
The professional researchers work in four research units:
1. civil, economic and trade law,
2. administrative and state law,
3. criminal law and the judiciary
4. international and comparative law.
Two or more of the units will, in fact, often work on the same research assignment. In these cases, one unit will be appointed the supervisor of the project and will manage the mobilization of resources (researchers and reporting responsibilities). This is understandable as many law reform research problems cannot be compartmentalized into one of the four designated research units.
As noted, the Comparative Law group also includes three researchers from elsewhere in the MOJ and four HLU faculty. Depending upon the particular research project, one or more of these researchers will work with the core group from the ILS. As well, outside assistance might be sought from elsewhere in the GoV, sometimes from other research institutes, and perhaps the Vietnam Lawyers Association or other consulting groups.
The ILS has 30 staff in total. Included in the figure of 30 staff are three in general affairs and accounting and 8 staff in the information and library centre. Most of the library staff are HLU LLB graduates supplemented by support clerical support and data management staff. There are additional staff concerned with the development of the national legal database who are not involved in any research activities.
For each research unit, there is an average of four to five staff researchers who, in turn, are often assisted by three to four outside researchers from elsewhere in the MOJ or GoV or other research institutes and the private sector, depending upon the research assignment involved.
Fifteen legal researchers were identified as belonging to the “Comparative Law Group of the HLU and ILS”. In particular, the list of staff members provided identified eight staff with the ILS, three with other departments of the MOJ and four HLU faculty.
Each research unit also has four to five contract researchers most of whom are apparently recent HLU graduates. They are so-called temporary employees who are referred to as junior researchers, but they work full time in the ILS. The ILS has had a hiring freeze for the past five years, meaning that any new staff are hired on contract.
In summary, the ILS has four research groups, each with four to five staff researchers, complemented by an equal number of non-ILS researchers and often an equal number of junior contract researchers. Each research unit can be composed of up to three types of researchers
Under the MOJ human resources development policy, the ILS is required to have 30% of its staff researchers obtain their PhD by 2007 and the remaining 70% their LLM by 2007. It is understood that this number includes current temporary junior researchers. Within the comparative law group, of eight permanent researchers at present, two have PhD’s and the remaining six hold LLM’s. Three are women, including the ILS Acting Director, and five are men. Six of these permanent researchers have foreign law degrees. One LLM researcher has just enrolled in the PhD program at the University of Sydney and another LLM researcher is a candidate in the HLU PhD program. Within the same Comparative Law group, in addition to the eight researchers just identified, there are seven other researchers, three of whom have their PhD, three of whom who have LLM and one has an LLB. Two are women and five are men. It is believed that five of these other researchers have foreign degrees, not counting the member with an LLM from the USSR. These seven researchers are full time employees of either the MOJ (3) or the HLU (4).
2. Areas for Building Research Staff Capacity Development through Canadian Study / Graduate Degree Placements
The Project has three access points for overseas staff development.
First, the proposed study placement program (4 months duration) can be used in part to satisfy research credit requirements of the HLU PhD program. Under the HLU program, a PhD candidate must write three major papers and one of these could be completed in the Project’s study placement program. According to Dr. Mai, between 2004-2007 there could be up to 7 PhD candidate researchers who would be available for the four month study placements. Some are current staff members, some will be recruited in the interim, and some may come from other MOJ departments.
The second access point is the Project’s year-long placement program in common law and civil law systems, with the University of Victoria, the University of Ottawa and possibly other Canadian law faculties.
The third access point, yet to be approved by CIDA as supplementary funding would be required, refers to the maximum three LLM scholarships for study in Canada. It has not been decided, if the three scholarships are created, what number will go to the ILS and what number will go to the WTO Working Group.
3. Current Information and Library Centre Staffing and Organization
The Information and Library Centre is a department of the ILS. The Library assists the MOJ in its responsibility for developing the Legal part of the National Information Program under the overall direction of the Office of Government. Work on the National Legal Database to date has concentrated on the compilation of current legal normative documents. There are no comparative law implications.
The Centre has five staff, headed by Ms Phuong. Four staff have domestic LLB degrees. One of these staff also has an English degree and another has a library degree from the University of Culture. In addition, there are 3 student apprentices from the University of Culture. One staff (Mr. Tam) is a specialist in IT with particular responsibilities for assisting in the development of the National Legal Database and the development (with Ms Phuong) of the ILS website. We are told that the initial version (In Vietnamese) of the website will be available by the end of June.
Unfortunately the Library and Information Centre is not able to provide significant assistance to comparative law researchers. The reasons are several, including: a dated, ad hoc and sparse collection of foreign law materials; no Internet access capacity; limited budget and difficult ordering procedures; and a lack of comparative law library skills.
It should be noted that the existing collection of the library will be stored in the very near future as the current premises are being vacated and staff will soon move to temporary facilities in the main MOJ building. The new premises for the ILS library will not be available until some date later in 2004.
The comparative law group has six computers, located outside the library. Sometime after August, the ADB will provide under the DIAL project two PC’s for the comparative law group with paid Internet access for two years. The location of these computers is not clear. They may be located in the temporary library facilities in the main MOJ building.
4. Present Comparative Teaching Program and Resources at HLU
Recently, the HLU established its first comparative law course. This is an optional course for third and fourth year students, 45 hours in duration, offered by the Department of Economic Law and Department of International Law. The principal chapter headings in the course syllabus are:
(1) the status of comparative law in the system of legal science courses
(2) some issues regarding the study of foreign law
(3) the diversification of legal systems
(4) the legal systems of
(i) Continental Europe
(ii) the United Kingdom and the United States
(iii) Islamic countries
(iv) Socialist and transitional states
(v) ASEAN legal systems.
The syllabus specifically notes “when studying a provision of foreign law, it is necessary to place it in a certain legal context, and to have sufficient knowledge of the foreign legal system”. The issue here is a familiar one – does the course incorporate a contextual appreciation of foreign legal cultures, including institutional, political and social considerations or is the study of foreign legal systems more concerned with the preparation of descriptive inventories of law and regulations? This Project is very much concerned with the former approach. Four HLU faculty who are affiliated with the ILS Comparative Law Group are involved in the delivery of the course.
The HLU library has two parts, one for students and one for faculty. Unfortunately, due to administrative complications, we were not able to make a site visit to HLU. In respect of the library itself, we were advised that the relevant foreign and comparative law holdings of the HLU faculty library are fewer than those of the ILS library. ILS researchers are unlikely to find books in the HLU collection that can be used for an ILS research project.
5. Description of the Practices Governing the Working Relationships Between the ILS and Other Legal Bodies.
See Part 1.
6. A Description of the 2003-2005 Comparative Law Research Agenda of the ILS. and
An Assessment of the Linkages between the 2003-2005 Research Agenda and the MOJ GoV Law Reform Priorities.
In March 2001, the former director of the ILS, Dr. Hoang The Lien, now the Vice-Minister of Justice, set out the “main orientations” for the ILS research agenda for 2001-2005. In terms of its comparative law elements, the agenda highlighted a number of topics including the perfection of the domestic legal system to accommodate the market economy, the effective implementation of legislation, and the provision of legal information to the population.
In particular, Dr. Lien identified the need to review the Civil Code and its relationship with commercial and economic law, and the revision of laws and procedures in light of the demands of regional and international economic integration. As well, research should contribute to the development of improved judgment enforcement legislation; the study of legal information mechanisms designed to further protect disadvantaged and vulnerable persons, and the continuing development of the legal education development framework for all levels of society. The ongoing research agenda of the ILS is affected principally by the legislative agenda of the GoV and the concurrent responsibilities of the MOJ in supervising, drafting, and vetting the preparation of government legislation for the its eventual consideration by the National Assembly.
In the case of research projects which require analysis of foreign legal experience, the ILS practice is to investigate, where resources permit, the law and practice in selected jurisdictions, usually in the following descending order:
(i) relevant civil law countries
(ii) ASEAN
(iii) transitional economies, particularly Russia and China and
(iv) other countries with parallel legal developments in the subject field.
The Research Work Plan of the ILS is developed on an annual basis, starting in July with meetings of MOJ research staff. As well, ILS researchers consult with other legal organizations, including the Supreme People’s Court (SPC), to identify priority areas of research interest. These meetings produce written requests for research projects and, after several months, the ILS, as the coordinating unit, submits its list of priorized research projects to the MOJ’s Research Assessment Council. The Council, after deliberation and further consultation, submits its final list of research recommendations to the Minister of Justice who, in turn, determines the final research agenda of the MoJ for the attention of MOSTE.
MOSTE has overall GoV responsibility for managing and coordinating all research outputs of the various ministries and state level agencies. For example, in the case of legal research, MOSTE will minimize conflict or overlap amongst research topics between the various legal research bodies, such as the ILS, the SPC, and the SPP. At the end of the day, MOSTE then prepares a Research Master Plan for the GoV. This Plan authorizes and allocates designated research projects to the various legal research bodies, subject to the MOF’s approval of the research budgets set for the GoV. At this point, with both MOSTE and MOF approval, the ILS is authorized to formally commence its approved research projects.
The first step in each case is the preparation of a Research Outline by the particular staff who are in charge of the particular project. It may take, on average, two months for the Research Outline to be completed. If it is envisaged that the particular project has international or comparative law elements, then the researchers must identify, with reasons, any required expenditures for foreign materials, Internet access costs, etc.
In overall terms, the ILS may be working on 15 to 20 research projects at any one time, with each project averaging one to two years in duration.
In the case of research projects that are connected to the legislative agenda of the GoV, a number of current projects were identified, including:
(i) unification of judgment and arbitration enforcement project
(ii) state restitution law and compensation liability project
(iii) particular responsibility for the Judiciary Project in the GoV Rule of Law program under the overall direction of the National Centre for Social and Scientific Research (NCSSR); and
(iv) compensation principles for the victims of environmental damage (hereafter the CED Research Project).
7. ILS Research Project as Legislative Case Study for October 2003 Introductory Comparative Law Training Program.
The CED Research Project has been chosen as the legislative case study for the introductory training program scheduled for early October 2003 (Activity 3113).
The ILS has completed three stages of research to date on the CED Project, namely:
(i) a review of the current legal situation in Vietnam, including all relevant normative legal documents
(ii) an analysis of the theory of compensation principles in force in Vietnam and other selected legal systems; and
(iii) field research assessing the legal implementation and compensation experience in selected urban and rural communities in Vietnam.
The October training program will concentrate on locating and interpreting foreign law experience in the subject area, primarily using Internet sources and analyzing our findings for contextual relevance for possible Vietnamese legal reforms.
8. An Assessment of the Extent to which the Existing System for Evaluation ILS Comparative Research Reports Considers and Contributes to Increasing their Usefulness to the MOJ/GoV in it Legal Reform Efforts
As noted earlier, each Research Outline for an ILS research project must specifically refer to any international or comparative law considerations that are relevant to researching the subject area. If the Outline is approved, then these so-called foreign elements will be investigated and analyzed by the research team.
Completed Research Reports are evaluated by the MOJ Research Assessment Council. Based on a sample evaluation report provided by the ILS, we can report that Council members will address the adequacy of the comparative law research in the report under review. However, we are not sufficiently familiar with current Council evaluation practices to identify whether they place value on contextual comparative law analysis. Such analysis would measure the practical relevance of foreign legal experience to GoV/MOJ legal reform needs.
In the circumstances, we are not prepared to assess the extent to which the existing system for evaluating ILS comparative research reports considers and contributes to increasing their usefulness to the MOJ in its performance of its advisory responsibilities. The project will require more experience with the existing report writing and evaluation practices and procedures before making such an assessment.
9. Assessment of ILS and Other Comparative Law Resources.
The comparative / foreign legal collection is very limited, consisting mainly of volumes received on an ad hoc basis under various legal assistance projects or from other donors. Researchers who go on study tours or graduate study placements overseas are required to bring back some books in their study area. Foreign journals are limited to 7 low cost subscriptions – Germany (1) China (4) and Russia (3). Limited budget and difficult ordering procedures have combined to prevent the acquisition of leading English language journals (as well as monographs / books). While ILS researchers will check for relevant publications in their library to assist in their current research, they are unlikely to find books in the collection that can be used for an ILS research project.
During the first stage of a research project, ILS researchers are required to review the current legal situation in Vietnam and are able to do thisusing Vietnamese newspapers, magazines and books available in the ILS library. The library provides a bi-weekly abstracting service for these materials entitled, “Diem Bao”.
At this time, the library has some PhD dissertations and study leave reports. A recent decree will allow the transfer of copies of 200 PhD dissertations from the National Library to the ILS library. There are also plans to make available in the ILS library copies of study leave reports that have been deposited with the MOJ Scientific Board by researchers who go abroad on study placements. Researchers who have completed a study placement in a foreign jurisdiction are expected to be an expert resource person for the particular jurisdiction.
The library has created a PC based library catalog. Records in the catalog consist of author, title, keyword and classification entries for books (including foreign books) and “leading” magazine articles are entered daily. Abstracts for newspapers and magazines are prepared but are not included in the library catalog but rather in Diem Bao. The catalogue is not accessible outside of the library. The classification system is an accession number system. Keywords are assigned and developed by the library. The library catalog is not accessible off-site, however a print catalog has been prepared in the past and shared with other libraries in Vietnam, such as the HLU, NLV, and the NA. There are plans to add library catalog records to the National Legal Database.
Recognizing the need for access to current foreign and comparative law materials, ILS researchers use the Internet, but usually outside of office hours on their own computers and, it appears, they pay for Internet time personally. The MOJ has no budget for Internet fees. In any event, low speed connections hamper the ability to quickly locate and download relevant primary and, if available, without password or subscription, the full text of relevant secondary material.
The comparative law group has six computers, connected via a LAN, located outside the library. Sometime after August, the ADB will provide under the DIAL (Development of the Internet for Asian Law) project two PC’s for the comparative law group with paid Internet access for two years. The proposed location of these computers is not clear. They may be located in the temporary library facilities in the main MOJ building.
The first DIAL training session was held in May 2002 in Hanoi using the National University computer lab. Fifteen MOJ researchers attended the session including the library IT specialist. Prerequisites for attendance were English skills and an LLB. An ILS researcher was one of the principal instructors. Information about these sessions can be found at
http://www.worldlii.org/catalog/dial/training/2002/6/According to the DIAL website
http://www.worldlii.org/catalog/publications/brochures/english.htmln:DIAL is a project funded by the Asian Development Bank (ADB) which aims to make it easier to find and use legislation-related materials from this growing Internet Law Library. DIAL is a free access one-stop starting point to the world of legal information on the Internet. DIAL is a catalog and search facility of legal materials on the Internet from all countries world-wide. DIAL does not add new legal materials to the Internet - it provides better access to what is already there.
Materials available on DIAL are primarily legislation- related provided by governments and other public agencies. DIAL does not provide access to the full text of commentary as found in legal journals or books. Access to these materials is normally fee-based by either annual subscription or pay-per-use.
Despite its limitations with respect to secondary foreign and comparative legal materials, DIAL is a valuable resource for ILS researchers and will be used in the October workshops. It is also a reflection of the reality in Vietnam that most comparative law research will of necessity be Internet-based due to the lack of access to suitable foreign and comparative law materials in print.
In addition to the ILS and HLU libraries, other libraries (SPC, VNU) may also be used by researchers, but they must visit in person with a letter of introduction. Three months ago the ILS hosted a meeting that discussed the foreign resources of four libraries, ILS, HLU, SPC and VNU, to analyze the number and currency of foreign legal resources in these libraries. It was found that the total number of foreign books in these collections is low, they are all outdated, no resources are available for updating foreign legal materials, and almost all foreign books have been acquired from donor projects. The US Embassy has a mobile law library comprised of some 60 current volumes on US law. The mobile library is assigned to the ILS for six months at a time. Prior to the 1990’s there was some support from socialist countries through bilateral cooperative agreements for the exchange of materials.
10) Staff Capacity for Comparative Law/Program Implications Research
Several program implications were identified, namely:
(1) increasing research staff capacity for Internet based, non-fee paying, comparative law research, specifically in exploiting DIAL resources;
(2) increasing research staff capacity for Internet based, fee paying, comparative law research by providing the means, within the project’s terms of reference and resources, to readily access primary and secondary foreign and comparative law resources on the Internet;
Fee-based Internet resources are preferable because the annual research agenda of the ILS is so varied in its subject matter that it is too difficult and costly to acquire more than a minimal survey collection of print materials to cover the topics being researched. Moreover, as will be argued below, the diversity and currency of Internet resources are improving by leaps and bounds, making the search for internet-based Comparative Law experience increasingly practicable and cost-efficient;
(3) increasing research staff capacity for contextually assessing foreign legal experience for appropriate adaptation to Vietnam’s law reform requirements, and
(4) The immediate need for high speed Internet Access in a location accessible to ILS researchers during working hours.
11) Suggested Internet-based Legal Source Needs
There are two different procurement packages that need to be investigated in order to access the basic legal sources:
a) High-speed Internet Connection: High-speed Internet connection (broadband connection) is a necessary first step. A broadband connection allows for unlimited access to the Internet for those computers hooked up to the system. Once this system is in place, it could be extended throughout the Ministry. There is no limit to the number of computers that can be connected to the line, but rather how much each computer uses the connection. Overuse by a particular user would slow down the connection.
b) Basic Internet Based Research Materials:
Free Sites: There are a number of free Internet sites available through a broadband connection that provide links to potential sources of foreign legal information such as:
DIAL
http://www.worldlii.org/catalog/2026.html Law Gateway prepared by the Institute of Advanced Legal Studies at
http://www.sosig.ac.uk/law Insite - prepared by Cornell University
http://www.lawschool.cornell.edu/library/Finding_the_Law/insite.htmLLRX.com – Foreign law guides at
http://www.llrx.comLegislation and official gazettes of foreign governments are often available on the Internet, though not necessarily current or consolidated. An example is France’s Official Gazette
http://www.journal-officiel.gouv.fr/ and LegiFrance
http://www.legifrance.gouv.fr/sites, and sites of other North American and Western European governments. Current laws decrees, ordinances, parliamentary debates, reports and opinions of committees examining a bill, case reports and codes are available at these sites. Governments, academic institutions and international organizations often compile collections of foreign legislation and treaties on a particular topic. One such example is the FAOLEX database at
http://faolex.fao.org/faolex/Commentary from authoritative sources is not freely available in full text on the Internet with the exception of a small number of law reviews published by law schools or by research institutes. Lists such as “Legal journals on the web” prepared by York University at
http://library.osgoode.yorku.ca/linksjournalyork.htm are useful for locating free, full text law reviews. Legal encyclopaedias and legal books are not available free on the Internet. Legal encyclopaedias covering specific jurisdictions or topics, from Canada, the USA, the UK, France and Germany are only available on the Internet for a fee from commercial online publishers. The situation is the same for legal books and dissertations from Canada, the USA, the UK, France, Germany, China, Russia, and Asia.
Fee Paying Sites:
There is no single fee-based Internet resource that can satisfy a varied comparative law research agenda. The selection for procurement of fee-based Internet resources, whether government, academic or commercial must take into consideration both the basic legal sources required for comparative law research and the jurisdictions usually investigated in ILS research projects.
There is no set price for fee-based Internet resources as each licence or procurement agreement is based on a negotiated settlement. (The prices quoted below are realistic based on anticipated use by the MoJ). Fee-based Internet resources require payment of annual fees and an agreement to specific terms of use and amount of use, either by a subscription agreement or licence agreement. Access would be either by IP authentication or personal password. Developing country subsidies may be offered; the prices listed below are unsubsidized prices.
To recommend/select the most cost efficient and effective fee-based Internet services for the Project, formal requests for trial access would need to be undertaken followed by formal price negotiations. Preliminary inquiries have been made. A sustainability strategy for continued funding after the life of the project should be developed.
We list below some useful Internet based Comparative Law sources. Taken together, they meet the need for access to commentary and primary materials from Civil, ASEAN, Socialist and Common Law western systems. One year, unlimited access subscriptions/licences may be purchased for:
(Listed according to priority)
Hein-On-Line USD 995.00, (US, Commonwealth and Int’l law reviews full-text)
AGIS Plus Text USD 4000.00 per annual subscription (Asia-Pacific journals, full text)
United Nations Treaty Series* - $0.00 (Member States price);USD 500.00 if not subsidized.
Oxford Legal Journals* $0.00 (Developing Countries Offer); USD 3550.00 if not subsidized.
Commercial Online Service fees (one of Quicklaw, Westlaw, Lexis)USD 5000.00
Eastview Russian journals or Kodeks USD 1000.00
CNKI China Academic Journals USD 2570.00 (Politics Economics and Law)
LawInfoChina or SinoLaw or Isinolaw USD1500.00 (China law and regulations)
*Subscriptions to some sites may be offered at reduced rates if Vietnam qualifies for developing country subsidies; such a subsidy can reduce the price to $00.00.
To provide access to legislation, judicial decisions, and legal encyclopaedias, fees for pay-per-use access to commercial online services such as Quicklaw, Westlaw, or Lexis, are required. $5000.00 per year (based on commercial rates of $200.00 per hour) would be needed unless a developing country subsidy can be negotiated.
Process Roadmap for acquiring Internet based fee-paying resources
a) Identify potential resources;
b) Select one or more databases from the list of potential resources. Select based on user needs, budget available, search engine, ease of use, current and retrospective coverage, jurisdiction, and type of legal information (primary or secondary).
c) Contact the vendor(s).
d) Arrange trial access to the db to test for ease of use, scope and comprehensiveness, downloading capabilities, search engine sophistication.
e) Negotiate a price, based upon type of institution, number of users, number of simultaneous sign-on’s,
f) Pay the invoice
g) Provide IP address range to the vendor / publisher (plus IP of Lerap office) or provide names of individual users (for password logon)
h) Set up a link on the institution’s (ILR) website.
i) Prepare search guides.
j) Provide training.
12. Conclusion
Preparations are now underway (mid July 2003) to prepare the suggested materials and Workshop format for the first Training Program scheduled for the week of October 6th. These materials will be forwarded as soon as possible to the Acting Director of the ILS for the Institute’s review and, hopefully, adoption for use in the Workshop.