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3.5. Legal information which is of greatest interest in DMCs

In order to assess the areas of legislative information which are of greatest interest to DMC users, and assist in the building of the DIAL facilities, information was obtained concerning the counties of origin and languages, types and subjects of legal information of greatest interest to users in the countries surveyed.

3.5.1. Countries (and languages) of laws to which access would be most valuable

Many of the law resources on the Internet, including translations of legislation, are in English. It would be valuable to determine the extent to which resources available in English are useful, and which other languages would be most likely to be useful.

Vietnam

Prior to the collapse of the socialist system in Eastern Europe, the legislation of Vietnam was to some extent was influenced by the laws of some former socialist countries, especially the former Soviet Union and Eastern Germany. The influence had been most intensive on such laws as the criminal code, laws on procedures for settling criminal cases, civil disputes and economic disputes, the ordinance on economic contracts, the law on marriage and family, etc. Models adapted from socialist countries were then seen as appropriate, and many of Vietnam's law makers were trained in the former Soviet Union and Eastern Germany.

In recent years, as part of economic renovation and reform in Vietnam, Vietnamese legislation has been influenced by a much wider range of models. Laws are very often based on, or drafted with reference to, that of a particular country. For example, informal enquiries by our local survey assistants indicate that the Law on Foreign Investment in Vietnam is affected by similar laws in China and ASEAN countries; the Civil Code is influenced by the civil law of France; the Commercial Code is mainly inspired from the Commercial Code of Germany, two recent banking laws were drafted with the law makers consulting banking laws of German, America, Japan, Indonesia, Malaysia, and the Philippines; and persons involving in drafting the Education Law are referring to the education laws of America, Germany, China and Thailand. The insurance law of China is also studied by Vietnamese law makers. The reasons for such reference may be explained by the fact that Vietnam, some ASEAN countries and China have similar development routes as well as similar socio-economic development policies. In addition, research into regional countries' laws can assist Vietnamese law makers in creating a competitive and well-established legal framework to help attract foreign investors to Vietnam.

A small number of those involved in formulating legislation can directly use English language materials and some others can use such materials through their translators. Apart from English, French and some other European languages such as Russian and German are probably most likely to be understood by legislative personnel in Vietnam.

China

Chinese civil law has historically been influenced by German law, and by Civil Law generally. Chinese laws formulated after 1979 reflect the combined influence of both the Common Law and Civil Law systems. Many laws, especially in the economic domain, have been modelled on the UK, USA and Hong Kong. Japanese law has been influential since the 1970s partly because of Japanese sponsorship of many different kinds ( eg. cultural exchanges, education, training, etc.) so that quite a number of Chinese personnel have been educated in Japan and influenced by the Japanese system. Laws enacted in Taipei, China have also been of interest, as they are written in both English and Chinese and this has reduced the language problem for many older generation law drafters who do not know foreign languages.

Younger generation law drafters now in the middle-level positions are likely to be familiar with the English language. Translators are available in the foreign-related law drafting bodies but perhaps not so frequently in domestic law drafting bodies. Some middle-level Chinese law drafters may also understand Japanese. Older generation of Chinese law drafters may not understand English, but they may know Russian.

India

In India, legislation officials responded by nominatiing particular areas of law and the laws of other countries that were of interest in that area[81]. The countries of interest were diverse: the United Kingdom, Japan, Singapore, Australia, Canada, New Zealand, South Africa, France and the United States. All of the countries nominated are English-speaking, with the exception of France and Japan. This no doubt reflects in part the pervasive use of English by legislation personnel in India.

Pakistan

British and Indian laws have had and still have most influence on Pakistani law, due to the joint history of Pakistan and India as British colonies, and the continuity of the legal infrastructure post-independence. Some current legislation still derives from the British era. As a result of this history, some Indian legislation is of interest in Pakistan. Canadian legislation is also used, more frequently than that of the United States. In some specialised areas laws of Islamic countries are consulted. Since English is an official and academic language in Pakistan, those involved in the legislative process speak English well, and all the drafting and debates are carried out in English.

Indonesia

In Indonesia, there is not very extensive or systematic use of comparative legislative materials in the drafting process, and it depends a great deal on the committee members involved and their access to private collections of relevant materials. However, similar overseas legislation, and treaties affecting Indonesia, are sometimes used.

Philippines

The most substantial comparative law influence on Philippines legislation is that of the United States, due to the American presence and government from 1900 until independence in 1946 and the consequent close similarity of the legal and political systems, and the continuing ease of access to American legal information (including through the Internet). The Penal Code and Civil Code were also influenced by Spanish and German civil law. US jurisprudence is considered to be of persuasive effect in the Philippines. The majority of Philippines laws have been drafted from American models. Phillipines laws are drafted and enacted in English, but Spanish is also understood to a limited extent due to its previous inclusion in the educational curriculum.

Mongolia

Mongolia is a civil law jurisdiction which was previously influenced by the law of the Soviet Union for a long period after it became the world's second communist state in 1924. Since 1990 Mongolia and its legal system have been undergoing a rapid transition to the legislative framework for a market economy. The result is described in Developing Mongolia's Legal Framework - A Needs Analysis[82]http://www.asiandevbank.org/law/mongolia/legis1.html]:
Unlike other former socialist countries, Mongolia did not have a suitable body of pre-Soviet legislation to revive after the passing of the command economy. As a consequence, Mongolia's national parliament, the Ikh Khural, has embarked on an extensive legislative programme and almost all of Mongolia's current laws date from the period between 1991 and the present.

The understanding of English at a technical level is limited in Mongolia. The report Developing Mongolia's Legal Framework - A Needs Analysis quotes estimates that there are probably no more than ten person in Mongolia capable of translating legislation from Mongolian to English. There would still be a much wider understanding of Russian.

3.5.2. Types of materials to which access would be most valuable

The survey assistants were asked to rank types of information about legislation from other countries according to how useful access to it was perceived to be by the primary audience. In the following Table, `1' indicates the type of information regarded as most useful, and `6' the type regarded as least useful. `Official information' means official explanations of the intended meaning of legislation (`explanatory memoranda'), or the history of its passage (`legislative history').

Indonesia

Vietnam
India
Pakistan
Mongolia
Philipp-ines
China
Average ranking
Legislation text
3
1
3
1
1
1
1
1.6
Law reform reports
2
3
3
2
4
5
2
3
Official information
1
4
3
4
3
6
3
3.4
Treaties
4
2
3
6
2
3
5
3.6
Law journals
5
3
3
3
5.5
2
6
3.9
Parliamentary debates
6
5
6
5
5.5
4
4
5.1
Table - Perceptions of utility of Internet access to types of information

The average ranking shown on the right of the Table shows that there is a clear consensus that legislation texts are the most useful legislation-related information which could be provided, and that the least useful is the Parliamentary debates on such legislation (although some respondents did not rank it lowest). The other four types of information (Official information such as Explanatory Memoranda; Treaties; Law reform reports; and Law journal articles) were all seen as being of similar value (ie rated between 3 and 4), with Law Reform Reports perceived as of most value within this grouping.

These rankings are some support for the approach that an emphasis on providing access to texts of legislation is the correct priority for DIAL Index/Search; that an emphasis on provision of access to Parliamentary debates would be misplaced; and that provision of some level of access to the other four types of information would also be seen as useful.

3.5.3. Subject areas of most interest

The local survey assistants identified those subject areas which seemed to be of most current interest to legislative personnel. As shown in the details following, the following areas were most commonly mentioned: banking and finance; market regulation; infrastructure and privatisation; and intellectual property. Many other areas were also mentioned. The Bank or the management of Project DIAL would have to make their own assessment of priorities for the areas of concentration for DIAL Index and DIAL Search, perhaps guided by user feedback including through the DIALogue facility.

Vietnam `s National Assembly has approved a legislative program for 1998 which will involve legislation covering import/export duties, sales tax, foreign investment, water resources, elections, education and the penal code[83]. It also assigned its Standing Committee to review and approve 20 draft ordinances in 1998, including ordinances on commercial arbitration, protection of consumers' interests, and lawyers' organisations. In addition, although not listed in the legislative program for 1998, laws on insurance business, company law (amended) and ordinance on securities are also in the process of elaboration. Many subordinate legal documents are also being drafted by competent state agencies such as the 15 decrees implementing the Commercial Code, the decree on technology transfer and decree on mortgages, pledges over assets and guarantees as securities for bank loans. Our survey assistants concluded that the following subjects would be of particular interest at present: banking and finance, trade and commerce, capital markets, infrastructure, and intellectual property.

In China the principal subject areas of law reform of greatest interest at present are Finance, Market Regulations, Market Structure, Environment, and Taxation.

In Pakistan, the areas where most interest was shown were: Administrative Laws; Alternative Dispute Resolution; Banking & Finance; Regulatory Laws, Government Regulation of Business; Real Property, Land Law; Arbitration; Contract; Litigation; and Trade Practices, etc.

In Mongolia, following a major revision of laws from 1991-96 which involved over 100 new laws being enacted, there are now many amending laws as well as new laws being introduced. Areas nominated as of current interest were various forms of privatisation laws (including land and apartments), and health insurance laws.

Due to the spread of drafting responsibilities across agencies in Indonesia, interests in comparative law corresponded with departmental interests and were not concentrated in particular areas.

In the Philippines, interest was expressed in a lengthy list of subjects covering most areas of law[84].

In India, the local survey assistants concluded that the following areas of law reform activity would be of most interest (in summary[85]): securities and exchange, including options trading; banking; taxation; energy laws; intellectual property; broadcasting; civil aviation; court process; and tenancy.

[81] The detailed response was:


* Telecommunication laws - Australia, Canada, New Zealand, South Africa & United States


* Intellectual Property laws- Japan & United States


* Power sector laws - United States & United Kingdom


* Capital market laws - United States (SCRA)


* Disinvestment of PSUs - United Kingdom & United States


* Civil Aviation reforms leading to privatisation- all developed countries


* Legal practitioners on (new techniques of drafting) - US, Australia, Japan & Singapore


* Environment laws - from all developed countries where such laws are stringent


* Labour laws - United Kingdom, United States & France


* Media & Communication laws- United States, United Kingdom, Australia & Japan


* Taxation laws - United Kingdom & United States

[82]

[83] (i) Amended Law on Import and Export Duty;

(ii) Amended Law on Special Sale Tax;

(iii) Amended Law on State Budget;

(iv) Amended Law on Foreign Investment;

(v) Amended Law on Domestic Investment Encouragement;

(vi) Law on Complaint and Accusation;

(vii) Amended Law on Nationality;

(viii) Law on Water Resources;

(ix) Amended Law on the Organisation of People's Councils and People's Committees;

(x) Amended Law on the Election of People's Council Representatives;

(xi) Law on Education;

(xii) Amended Penal Code.

(Saigon Times , 20 December 1997)

[84] The full list is:

a. Administrative law

b. Banking

c. Court and Judicial System

d. Environment

e. Foreign Investment

f. Labor Law

g. Telecommunication

h. Information Technology

i. Intellectual Property

j. International Law

k. Legal Practitioner

l. Maritime Law

m. Media and Communication

n. Natural Resources

o. Procurement

p. Public Administration

q. Public Health

r. Real Property and Land Law

s. Social Welfare

t. Taxation

u. Trade and Commerce

v. Treaties

[85] The full list, broken down by Ministries expressing interest, is:

Securities and Exchange Board of India - starting Future and Options trading in India.

Ministry of Finance


* (Banking) - Section 28 in the Indian Contract Act 1872 leading to changes in the issuance of Bank Guarantees.


* ( taxation) - incorporating changes in the Voluntary Disclosure scheme to entice more people within the tax net.

Ministry of Power


* incorporating changes in the Hydroelectricity Power policy.


* Reviewing the tariff rates for Independent Power Producers (IPPs).


* Changes in terms of reducing the number of clearances in terms of the approval required for new projects by the IPPs.


* reviewing the Fuel Supply Agreement between IPPs and the Oil companies.

Ministry of Information and Broadcasting - reviewing the Direct to Home (DTH)bill for starting DTH operations in India.

Ministry of Industry


* (FIPB) - streamlining the process for giving clearances to foreign companies.


* ( Intellectual property) - reforms required in the field of patents for drugs and agricultural products.

Ministry of Civil Aviation


* formulating the new civil aviation policy


* finalising the privatisation of the Airport policy

Supreme Court & High Courts - framework for lessening of the backlog of the huge pending cases in all the courts in India.

Ministry for Urban Development - reforms in the areas of tenancy rights.

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