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The Vietnam-EU Free Trade Agreement

Published on 07 Jan 2019 | 2 minute read

2019 should see the Vietnam Europe Free Trade Agreement come into effect.

The final text was agreed and the EC Commission approved then it was sent to the EU council for signature (during which time each Member State reviews it) and finally it will be submitted to the European Parliament for adoption probably by mid 2019.  The EU Singapore FTA is slightly more advanced and due to adoption in early 2019 too.

The Agreement contains a so called TRIPs+ IP chapter. That means the provisions go beyond the WTO TRIPS agreements. Whilst this is sometimes criticized as being to much for developing countries to bear (e.g. in enforcement), in many cases it provides more useful detail on existing TRIPS obligations.

Key provisions include the following:

a. A large number of provisions mirror TRIPS, restating obligations sometimes with a little more detail. In other cases, it covers areas where TRIPS is silent (such as freedom to choose parallel import regimes)
b. Performers, phonogram/sound recording and broadcast copyright is strengthened. Vietnam's own music industry will welcome this.
c. Anti circumvention and rights management provisions are included. This is intended to prevent music and film piracy.
d. Artists' resale rights are provided.
e. Trademark non-use is extended to 5 years 
f. Extensive GI provisions are set out. Vietnam is a relatively active proponent of GI protection and registers many GIs. A large scale reciprocal registration system will occur under the FTA. There are transitional provisions for certain contentious GIs like Feta and Champagne.
g. Designs provisions require Vietnam to join the Hague Agreement (generally felt to be helpful in SEA by reducing cost) and allows dual copyright protection for designs.
h. Patent term extensions where marketing delays occur are permitted (a provision that access to medicines advocates dislike).
j. Regulatory test data protection is required (again disapproved by access to medicines advocates), to protect innovator test data submitted in the marketing approval process. (Technically TRIPS intended to cover this but its provisions never worked.)
k. Extensive provisions to improve civil IP litigation are included. These are likely to be helpful in an emerging IP system such as Vietnam's where court system weakness is often cited as a problem. Important additional remedies include right to information, proper damages, legal costs and published decisions.
l. Clearer internet ISP liability, injunction and safe harbour provisions should improve online enforcement - often cited as a concern.
m. Border enforcement improvements are mandated. In fact Vietnam has a functioning IP border protection system, its problems are more a scale problem due to proximity to China (especially the problematic northern land border).

Whilst criminal provisions are not covered (as criminal provisions are not harmonized in the EU), the parties are required to follow TRIPS.  There are also an array of cooperation and technical assistance mechanisms which will likely lead to the EU spending a great deal of time and resources working with Vietnam to improve its IP system from 2020 on.

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Principal, Global Head of Enforcement
+62 811 870 2616
Principal, Global Head of Enforcement
+62 811 870 2616