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Pham Duy Nghia

(Draft paper provided for WIPO)

Historical background

Emerging from an agricultural nation, dominated by Confucianism, the traditional Vietnam and its people, though rich at customary tradition, professional experiences, know how and secrets, did not know IP law and law teaching as have they developed for centuries in the West [
[2]]. The reception of Western IP Law into Vietnam only occurred during the period of colonization. French ruler declared the application of their civil and commercial law, including the Law on Patent of French dated June 23, 1893 and others IP law and regulation in French territories and protectorates [[3]].
Much later, as the reception of Western commercial and IP law, the law teaching for Vietnamese nationals could only started in the early of 20th century. Following primary law courses as provided in the Ecole de Droit et d’Administration, established in Oct 15, 1917, the first law college (Ecole Supre’srieure de Droit) was established in Sept 11, 1931. This law college provided its first law courses in fall 1933, was then integrated into a Faculty of Law of University of Indochina in 1941 and was closed in March 1945 following the invasion of the Japanese military.
Law teaching at university level in Vietnam, therefore could only started in 1941 and was interrupted in 1945 because of war condition. Among 500 law students enrolled in this period 1941-1945, only 220 Vietnamese nationals were graduated with the degree “bachelor of law”. IP law as part of civil law was taught by French professors during this only 04 years relative continued curriculum [
After 1945 and following the Anti French and Anti American resistant wars, no law school at university level with regular training courses existed in the North for a long period. In opposite, in the Republic of Vietnam, IP law were promulgated and taught at Saigon Law School until country unification in 1975.
Following the creation of Faculty of Law of Hanoi University in 1976, teaching of Soviet-style innovation law, patent law and trade mark law were introduced to Hanoi students in the 80th of the 20 century. Equipped with trained knowledge from the former Soviet Union and Eastern Germany (GDR), training courses for patent law, trade mark and innovation law were designed with a focus on protection of socialist ownership, granting personal property rights and motivations for the innovators and proceedings to register industrial property.
Thank to Doi-moi Policy as implemented during the last two decades, IP law and IP teaching at law schools in Vietnam have changed substantially over the last 20 years. From the only one Faculty of Law, now exist in Vietnam at least 11 law schools and faculties with the number of graduated bachelors of law increase to 9.000 annually in regular courses [
[5]]. As the Vietnamese population increased remarkable to 86 millions in 2007, with more than one million of young applicants to higher education annually, the number of college and universities in Vietnam will certainly increase to several hundreds in the coming years, thus adding more legal education institutions in place. This trend reflects not only the demand side, but also the increasing need of law professionals (judges, legal clerks, lawyers, paralegals, etc.); IP law and practice is one of the many professional majors in legal field which witnessed rapid development in recent years.
The following example may demonstrate this development: as I joined the lawyer profession 15 years ago, the Hanoi Lawyers Association has only a meeting room at Trang Thi Street, reserve enough place for its 20 members. Now the Hanoi Lawyers Association has more than 1000 licensed lawyers with several hundreds law firms and IP attorney offices. A dynamic market for IP lawyers has been developed, but mostly unnoted by the academics and law trainers.

IP Law Training at universities and colleges

Based on a survey conducted in all of 11 law schools in Vietnam in 2005 (Ministry of Justice-MOJ) as updated in November 2007, the undergraduate program leading to bachelor degree in law last in Vietnam in all law school for at least 4 or 4 and a half of years. The curriculum is currently divided into annual program, with a numbers of credits to be collected no less than 190 and no more than 210. The curriculum of each law school may differ slightly from another school, but basically they have to meet the minimum requirements as provided jointly by an inter-ministerial circular issued by the Ministry of Justice and Ministry of Education in 2003. Accordingly, Copy Right and IP law are designed as two separate compulsory courses, each take at least for two credits. Additional, some law schools also provide selective courses, such as IP in international transaction, Law on Technology Transfer, Disputes Settlement in IP Law, etc. The selective courses vary from school to school and from time to time.
Organizationally, copy right and IP law is basically taught by professors of departments for civil law, but IP related issues also may be provided by departments of international law. The criminal law professors may also provide, but rarely, selective courses in legal sanctions to fake goods and imitation products.
One major obstacle to IP law teachers in Vietnam is usually the large number of students in each class. According to MOJ 2005, at best one law teacher is in charge for 62 students, at worst one law teacher is in charge of 101 students. Limited facilities, limitation in references books, and others make IP law teaching sometime more than a theoretical introduction, rather than an applicable science [
Practical internship for undergraduate students wishing to work in IP law is not organized by law school, but students may find out the change by private initiatives. The idea of law clinics is debated among law professors, but so far there has been no or little progress to be reported. Supported by CIDA (Canadian) and some partners from the Philippines, one pilot is being tested by LERES, a legal research center subordinated under the Faculty of Law of Hanoi National University. The pilot covered only limited range of citizen disputes in land law, in law on claims and petitions, but not yet in issues related to IP. In generally, at regular law courses in law school, IP courses are provided as inter-grated civil law program or separate special courses. They provide legal concept, basic rules and application of IP law, also with a focus on further economic integration into the world economy. IP text books remain more or less theoretical, explaining the IP law in a systematic way. But practical impacts of IP practice are still weak. Case analysis as a modern teaching style is till hesitated by teacher and students.
NOIP has organized as a forum for IP disputes hundreds of cases, but till now there is no case book on IP disputes published. The publication of such practical materials not only increase transparency in law enforcement, but certainly will help the IP teaching and learning at universities immense.
Beside regular law courses leading to bachelor degrees, law schools in Vietnam are currently burden with the overloaded on-job training in evening classes, mostly for State officials wishing to have a degree in law, and those the have failed the formal entrance examination into the regular law courses. The number of on-job law students in evening classes sometime reaches more than 20.000 annually. IP law courses are not compulsory for these classes.
The graduate programs lead to LLM and Doctor in law, in these programs there are no compulsory IP law courses. Graduate students in civil law majors may have selective IP-related courses, focusing on the implementation of IP law, IP law dispute settlements and the like.

IP Law and Skill: IP courses at Hanoi Human & Social Sciences College

Since 2004, Hanoi Human & Social Science College, possibly in conjunction with NOIP, has organized at least three short-time training courses in IP Law and Practice, leading 200 participants to a certificate, which they may need to work as IP Practitioner (tendency toward Patent attorney) in Vietnam. In contradiction to legal education in law schools, these courses are provided to all (mostly having an undergraduate degree) who whish to practice IP at IP offices. The focus on practical training, client oriented, technical skills provided… may be stronger in the IP courses at law schools. I am not informed how these experiences will be institutionalize in a kind of more regular practice oriented IP courses leading to Patent lawyers licensing [

Observation and some remarks

The market will train, and train very sufficient. Almost unnoted during the IP law development in Vietnam in the last two decades, I think a group of, estimated about 100, very cable IP lawyers and practitioners working in IP offices and law firms have been established; they provide first class service to foreign and domestic clients; they learn to associate, to lobby for IP law and policy and compete with their foreign counterparts.
This observation alerts me to the need of changing the regulatory rigid State into a enabling and facilitating State, providing framework for law schools operate independently. The competition among the law schools will be the driving force helping them to adopt advanced IP courses, curriculum and teaching style to cope with the real need of business.
But I also see here the need to make standards at least in IP law teaching and to think about the ways to strengthen IP practice and IP education and professional training. Certainly there is a need to promote the association of all law schools under a teaching professional umbrella; there is also a need to integrate practical training into the education, either in the form of law clinics or internship. Not at least, a center with regular training courses for applicants for Patent lawyer certificate need also to be designed urgently and separate academic education from professional skill training and preparation for the IP professionalism.
With regard to IP law teaching at law schools, immense change will occur in the next road of reform of high education in Vietnam. The university will receive their independence and autonomy, and therefore will push the reform to transform the annual teaching curriculum into the credit based system. IP courses and related courses may be arranged differently by the schools to meet the diversity of need of the trainees. Beside strengthening the IP law teachers and researchers, which Vietnam has a change to benefit largely from the donor community, such as Japan, EU, Canada or US during the last two decades, IP text books, case books, references books and the establishing of specialized IP law journals may be also other requirements, which need to be enhanced in order to enhance IP law teaching in Vietnam. /.

[2] Trần Trọng Kim, Việt Nam sử lược, (1964), Tân Việt, Sài Gòn, 1964, Nguyễn Thế Anh, Kinh tế và xã hội Việt Nam dưới các triều vua Nguyễn, (1968) Trình bày, Sài Gòn 1968.
[3] Vũ Văn Mẫu, Dân luật khái luận, (1958), Bộ Quốc gia Giáo dục, Sài Gòn 1958, at 263 ff.
[4] Việt Nam Cộng hòa, Chế độ tư pháp, (1967), Sài Gòn.
[5] Lê Tiến Châu, Thực trạng đào tạo cử nhân luật ở nước ta hiện nay, Tạp chí KHPL, 4(20) 2005, pp 56 ff
[6] Lê Tiến Châu, ibid
[7] Báo Hà Nội Mới, ngày 14/11/2007


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  Pham Duy Nghia graduated at Leipzig University in Germany (LLB 1988, PhD 1991). He was a Fulbright visiting scholar at Harvard Law School (2001-2002). At Fulbright University Vietnam he teaches Law and Public Policy, Public Governance, Research Methods of Public Policy. As arbitrator Prof Pham Duy Nghia has served in more than 100 cases hearing transnational business disputes, including commercial, investment, construction, insurance, corporate disputes, M & A and intellectual property disputes. Besides teaching, research, and practicing law, Pham Duy Nghia is a frequent commentator in leading newspapers and media in Vietnam. The areas concerned include protection of basic citizen’s right, voice and accountability in public governance, regulatory quality, rule of law and access to justice.