A partnership with academia

Building knowledge for trade and development

Vi Digital Library - Text Preview

The Interface Between Access and Benefit-Sharing Rules and Biotrade in Vietnam

Report by Dr. Trang Thi Huong Tran/UNCTAD, 2016

Download original document (English)

This report identifies and explores main regulatory challenges in Vie Nam; addresses issues of concern and policy options to develop in response to the challenges; assesses the country's national competent authorities ABS frameworks supportive of BioTrade, and considers the outlook for businesses and other relevant stakeholders in line with the new obligations under the Nagoya Protocol in Viet Nam.

U n i t e d n at i o n s C o n f e r e n C e o n t r a d e a n d d e v e l o p m e n t


in Viet nam


The InTerface beTween
access and benefIT-sharIng


rules and bIoTrade




Note


The material contained in this document may be freely quoted or reprinted but acknowledgement is requested,
together with a copy of the document containing the quotation, or the reprint should be sent to the UNCTAD
Secretariat at: Palais des Nations, 1211, Geneva 10, Switzerland.


The designations employed and the presentation of the material do not imply the expression of any position
whatsoever on the part of the United Nations Secretariat concerning the legal status of any country, territory, city
area, or its authorities, or concerning the delimitations of its frontiers and boundaries, or regarding its economic
system or degree of development.


This is an unedited document.


Acknowledgements


This document was prepared by Dr. Trang Thi Huong Tran, UNCTAD consultant and independent legal advisor of
Biodiversity Conservation Agency (BCA) of Viet Nam in cooperation with Ms. Mariona Cusi, Technical Expert of
UNCTAD, Mr. Son Minh Ta, Director of BioTrade Implementation Group of Viet Nam (BIG Viet Nam) and Ms. Cuc
Dang Thu Nguyen, Head of Division of Genetic Resources and Biosafety Management, Biodiversity Conservation
Agency (BCA), Viet Nam. This document was developed under the guidance of Mr. David Vivas Eugui, Legal
Officer at the Trade, Environment, Climate Change and Sustainable Development Branch, Division on International
Trade in Goods and Services, and Commodities (DITC) of UNCTAD. The document was formatted and revised
for publication by Mr. Rafe Dent (UNCTAD) and Ms. Maria Durleva (UNCTAD consultant).


Comments in this document and recommendations from participants in the workshop and consultation on
“Addressing the intersection between the Nagoya Protocol, access and benefit sharing rules, and BioTrade,”
held in Hanoi, Viet Nam on 27–29 June 2016, were also taken into account and included in this document. All
presentations and information about the workshop can be found at: http://unctad.org/en/Pages/MeetingDetails.
aspx?meetingid=1156.


Finally, our thanks to the Biodiversity Conservation Agency, Helvetas Viet Nam and the BioTrade Implementation
Group of Viet Nam (BIG Viet Nam) for their technical and logistic support.


UNCTAD gratefully acknowledges the support of the Swiss State Secretariat of Economic Affairs (SECO) in the
development of this report under the third phase of the BioTrade Facilitation Programme (BTFP III).


Guillermo Valles
Director


Division on International Trade in Goods and Services, and Commodities
28 November 2016


Wichtiger HINWEIS !
Innerhalb der Schutzzone (hellblauer Rahmen) darf


kein anderes Element platziert werden!


Ebenso darf der Abstand zu Format- resp. Papierrand
die Schutzzone nicht verletzen!


Hellblauen Rahmen der Schutzzone nie drucken!


Siehe auch Handbuch
„Corporate Design der Schweizerischen Bundesverwaltung“


Kapitel „Grundlagen“, 1.5 / Schutzzone


www. cdbund.admin.ch


Produced in joint partnership with:


Biodiversity Conservation Agency of Viet Nam (BCA)
BioTrade Implementation Group of Viet Nam (BIG Viet Nam)


UNCTAD/WEB/DITC/TED/2016/9




iii


Contents
Note ................................................................................................................................................................... ii
Acknowledgements ............................................................................................................................................. ii
Acronyms and Abbreviations .............................................................................................................................. iv


Executive summary .................................................................................................................... v


I. INTRODUCTION ................................................................................................... 1


II. OveRvIew ......................................................................................................... 3
A. Viet Nam’s biological resources .............................................................................................................. 3
B. Genetic resources .................................................................................................................................. 3
C. Traditional Knowledge associated with GRs ........................................................................................... 3


III. NagOya PROTOCOl ON aCCess aND BeNefIT-shaRINg: sTaTUs IN vIeT Nam ....... 5
A. Implementation strategies ...................................................................................................................... 5
B. Snapshot: Viet Nam’s National ABS Regulatory Framework ................................................................... 7


i. Genetic resources and their legal statu s ........................................................................................... 7
ii. Access to genetic resources in Viet Na m .......................................................................................... 8
iii. Benefit-sharing ............................................................................................................................... 10
iv. Treatment of traditional knowledge under the Regulations .............................................................. 12
v. Compliance and enforcement ......................................................................................................... 13


Iv. BIOTRaDe aND ITs DevelOPmeNTs IN vIeT Nam ................................................ 17
A. The BioTrade concepts and principles ................................................................................................. 17
B. BioTrade in Viet Nam ........................................................................................................................... 18
C. Steps ahead ........................................................................................................................................ 22
D. The Perception of BioTrade in Viet Nam ............................................................................................... 22
E. BioTrade in numbers ............................................................................................................................ 23
F. BioTrade Viet Nam: Challenges and additional actions in Viet Nam ...................................................... 23


v. aCCess aND BeNefIT-shaRINg RUles aND The BIOTRaDe aPPROaCh:
aN OveRvIew .................................................................................................. 25
A. BioTrade and Viet Nam’s laws on biodiversity ....................................................................................... 25
B. Synergies, implementation and lessons learned ................................................................................... 25
C. Differentiating between ABS and BioTrade ........................................................................................... 27
D. Implementing the BioTrade Principles and the Vietnamese ABS law ..................................................... 28


vI. POlICy aND RegUlaTORy OPTIONs aND ReCOmmeNDaTIONs ............................ 30
glOssaRy ....................................................................................................... 34
aNNex ............................................................................................................ 35


Notes ..................................................................................................................................................... 39
References ............................................................................................................................................. 39


Key Figures The Decree No. 65/2010/ND-CP Access to GRs procedures ...........................................................9
Viet Nam ABS offences and sanctions ............................................................................................15
Results Chain for Scaling up of Ethical BioTrade activities within phyto-pharmaceutical sector in Viet Nam ......20
The BioTrade Principles and Criteria and the ABS Standards ..........................................................27


Key Tables The BioTrade Principles and Criteria ...............................................................................................17
BioTrade sectors prioritized by countries and partners in Africa, Asia and Latin America .................18
Partnerships and actors involved in BioTrade activities ....................................................................20
ABS provisions vis-à-vis BioTrade Principles and Criteria ................................................................26




iv


Acronyms and Abbreviations


ABS Access and benefit sharing
ASEAN Association of Southeast Asian Nations
BCA Biodiversity Conservation Agency
BIG Viet Nam BioTrade Implementation Group Viet Nam
BL 2008 Biodiversity Law of Viet Nam of 2008
BTFP BioTrade Facilitation Programme
CBD Convention on Biological Diversity
CITES Convention on International Trade of Endangered Species of Wild Fauna and Flora
CRED Centre for Rural Economic Development
FAO United Nations Food and Agriculture Organization
GIZ (Deutsche Gesellschaft für Internationale Zusammenarbeit)
German Agency for International Cooperation
GR/GRs Genetic Resource/s
IP Intellectual property
IPRs Intellectual property rights
ITPGRFA International Treaty on Plant Genetic Resources for Food and Agriculture
IUCN International Union for Conservation of Nature
MAT Mutually agreed terms
MARD Ministry of Agriculture and Rural Development of Viet Nam
MOH Ministry of Health of Viet Nam
MOIT Ministry of Industry and Trade of Viet Nam
MONRE Ministry of Natural Resources and Environment of Viet Nam
MOST Ministry of Science and Technology of Viet Nam
NIMM National Institute of Medicinal Materials
PIC Prior informed consent
PPC Provincial People Committee
SECO State Secretariat for Economic Affairs (Switzerland)
SIPPO Swiss Import Promotion Programme
TK Traditional knowledge
UEBT Union for Ethical BioTrade
UNCTAD United Nations Conference on Trade and Development
VACNE Viet Nam Association for Conservation of Nature and Environment
VEA Viet Nam Environment Administration
VIETRADE Viet Nam Trade Promotion Agency
VIMAMES Viet Nam Material Medical Society
VND Vietnamese Dong
WHO World Health Organization
WIPO World Intellectual Property Organization
UNCTAD United Nations Conference on Trade and Development
US$ United States Dollar




v


exeCUTIve sUmmaRy


Viet Nam has enjoyed strong economic growth in the last 25 years. In fact, its GDP per capita growth has
been among the fastest in the world averaging between 6.4 and 6.7 per cent annually since the 2000s. By
the same token, the World Bank reports that about 30 million Vietnamese live close to the poverty line – that
is about a third of the population being classified under the “poor” or “near poor” groups . A majority of the
members of these groups are farmers, indigenous communities and those whose livelihoods depend on
biodiversity. Obvious impediments of poverty aside, the same groups of people are also the most vulnerable
to shocks from climate change, natural disasters as well as economic and health shocks.


In 1994, Viet Nam became a member of the Convention on Biodiversity (CBD). By being a Party to the
CBD, Viet Nam had pledged to mainstream biodiversity considerations and sustainable use of biological
resources (including equitable sharing of benefits from their use) in its policy-making agendas. Recognizing
that biodiversity conservation and sustainable development cannot be successful without the participa-
tion of the poor, the Biodiversity Law of 2008 (BL 2008) was envisaged as a legal instrument which could
integrate pro-poor principles and involve biodiversity holders at the grass roots level. Coupled with the
Decree No. 65/2010/ND-CP (jointly, “the Regulations”), which details implementation procedures for the BL
2008, the Government attempted to put in place legislative and administrative measures which, from the
findings of this report (see III.B Snapshot: Viet Nam’s national ABS regulatory framework from p. 7), are still
unclear with respect to certain definitions and legal aspects-related access and benefit-sharing (ABS) and
the demarcation of ministerial assignments relating to the State management of genetic resources’ (GRs)
giving rise to impractical implementation of the Regulations. In addition, the Regulations put in place so far
do not provide tools for compliance and enforcement (e.g. a national database for GRs and TK) which cre-
ates an arbitrary mechanism for sharing benefits and ambiguous roles of stakeholders in the ABS process.
Overall and in consideration of the Regulations being legal instruments pre-Nagoya Protocol (Protocol),
the provisions intended to satisfy the CBD requirements are too general to be functional and provide
inadequate interpretation of the ABS rules while being compounded by the lack of supporting mechanisms
to be applicable in practice. The subsequent entry into force of the Nagoya Protocol in 2014, Viet Nam’s
consequent ratification of it and the growing impact of the Protocol domestically and internationally entail
that the country is faced with a greater challenge to comply with the ABS rules and make them workable if
it were to achieve its own sustainable development objectives.


On the back of these policy and administrative integration challenges, UNCTAD BioTrade, in collabora-
tion with the Biodiversity Conservation Agency of Vietnam, Helvetas - Viet Nam and the recently created
BioTrade Implementation Group (BIG Vietnam) and with the support of SECO Switzerland, has demon-
strated a slow but steady rise as a bolster for sustainable development through trade and investment in
biological resources in keeping with the objectives of the CBD and the Protocol. Although in legal terms,
ABS and BioTrade are subtly different (see V Access and Benefit-Sharing rules and the BioTrade approach
from p.25), these two concepts converge in a manner that BioTrade fortifies implementation of the ABS
Regulations, and the Regulations become the enabler and promoter of BioTrade as a viable livelihood op-
tion for various actors in the value chain, especially the local and indigenous communities. The BioTrade
Principles and Criteria particularly: Principle 3 (on fair and equitable sharing of benefits, Principle 5 (on
compliance with national and international regulations and Principle 7 (on clarity of access rights and prior
informed consent) give the means to its practitioners, albeit indirectly, to comply with the ABS Regulations.


Through the promotion of sustainable sourcing and use of biological resources e.g. medicinal and aromatic
plants for trade, and distributing benefits fairly (monetary and non-monetary) and equitably sharing the ben-
efits with the communities and the actors involved in the value chain, BioTrade practitioners are also able to
comply with the benefit sharing principle of the Protocol (See V.C Synergies, Implementation and Lessons
Learned on p. 25). Also, through its capacity development programmes coupled with the sensitization of
ABS rights, local communities (stakeholders) are able to take part in the value addition, commercial and
trade activities. Through this process, the communities play an active role in the negotiation of the mutually
agreed terms (MATs) and are able to give Protocol compliant Prior Informed Consent (PIC). Essentially, since
its inception in Viet Nam and despite the existing challenges noted in this report, BioTrade has proven itself
as a working model on ABS compliance. Its preliminary projects results have created the basis for its long
term development in the country.




vi


The current revision and improvement of ABS Regulations in Viet Nam so that they are not only aligned with
the definitions and obligations under the Nagoya Protocol but are also bespoke, clear and detailed legal
instruments to incentivise both biological and genetic resource users and providers could close the gaps on
the interaction of ABS and BioTrade. In the spirit of the principle of sovereignty of the State, such adaptation
could prove to be an opportunity for Viet Nam to resolve how best it could regulate BioTrade activities vis-
à-vis overseeing ABS through its legislative and administrative approaches. Subject to the extent of modi-
fication of the Regulations’ clarity, scope and flexibility, BioTrade may fall under the Protocol and ABS rules
which are of mandatory nature. However, it must be noted that the BioTrade achievements, in terms of the
coverage of its Principles and Criteria, only provide, on voluntary basis, the minimum standard required by
the ABS rules under the CBD and the Protocol. BioTrade projects and activities in the country will therefore
still be largely dependent on the national programmes as guided by the revised ABS Regulatory framework,
supportive administrative practice and technical assistance.


Finally, in order to promote a BioTrade-friendly implementation of the Nagoya Protocol and potentially
introducing some BioTrade-related provisions in future and revised ABS regulations, this study provides
a series of recommendations and proposals for the consideration by policy makers and regulators in Viet
Nam. These recommendations do not only apply to Vietnam alone but they could also serve as a blueprint
for other biodiversity-rich countries in the Mekong region as they share common challenges and opportuni-
ties, biological and genetic resources, traditional practices and communities.


Photo credit: ©Fotolia: chatursunil




1vIeT Nam


I. INTRODUCTION


Located in the Indo-Burma Biodiversity Hotspot
(IBBH), Viet Nam is ranked as the 16th most
biodiversity-rich country in the world. It is home to
more than 42, 900 identified species, nearly 14,000 of
which are recognized species of flora, 11,000 marine
species and a remarkable number of rare endemic
species. The Mekong River which boasts the world’s
largest inland fishery - accounting for up to 25 per
cent of the global freshwater catch and providing
livelihoods for at least 60 million people flows south
through Viet Nam to the Mekong Delta, nicknamed
the “rice bowl’ of Viet Nam. With its abundant
indigenous plant varieties, livestock breed, medicinal
plants, herbs and associated traditional knowledge,
it is unsurprising that Viet Nam’s biodiversity has a
crucial role in contributing to sustainable livelihoods
over many generations through the provision of food
security and health care, especially for local people
living in remote areas who are directly dependent on
resources exploitation.


With the growing concern about threats to its
biodiversity, the Government of Viet Nam has
introduced measures for its protection, conservation
and development through the creation of national
policies and implementation of international
conventions and protocols it has signed up for
post-Convention on Biological Diversity (“CBD”),
one of which is the Nagoya Protocol (“Protocol”).
Two years after it became a Party to the Protocol in
April 2014, the Prime Minister issued Decision No.
1141/QD-TTg on 27 June 2016 approving a national
scheme spanning from 2016 to 2025 to strengthen
the government’s management capacity of access
to genetic resources and fair and equitable sharing
of benefits arising from their utilization. To this effect,
the Ministry of Natural Resources and Environment
(“MONRE”) was designated to coordinate with other
related ministries and agencies in the drafting of a
new decree to implement the Protocol, particularly on
access and benefit sharing (“ABS”) that will enhance
the existing national legal framework. Such legal
instrument aims to establish ABS systems that will
define the way in which genetic resources can be
accessed and how the benefits resulting from their
utilization can be shared among users, providers and
other related stake-holders as well as yield (maximum)
benefits to users and providers, contribute to
ecosystem conservation and support the livelihoods


of communities located where the genetic resources
are found or accessed.


Historically, Viet Nam’s commitment to sustainable use
and conservation of its biodiversity dates back to 1995
when it ratified the CBD and launched its first National
Biodiversity Action Plan (NBAP 1995) in the same year.
Among its Prioritized Activities (within the framework of
NBAP 1995) was to “promote international cooperation
for biodiversity conservation by way of appealing to
international organizations, foreign governments and
individuals to provide technical and financial support
and staff training to realise biodiversity action plans.”1
By 2003, the BioTrade concept was introduced in Viet
Nam via UNCTAD’s BioTrade Initiative (“BioTrade”).
The intervention aimed to provide technical assistance
to support partners to develop specific sectors of
biodiversity products and services through a broad
range of trade promotion tools. Such tools operate on
BioTrade’s concept of fostering activities of collection,
production, transformation, and commercialization of
goods and services derived from native biodiversity
(genetic resources, species and ecosystems) under
the criteria of environmental, social and economic
sustainability. Between 2012 and 2014, BioTrade
worked in close partnership with Helvetas Viet Nam
to implement the project “The development of value
chains for natural ingredient products.” This project’s
key objective was for Viet Nam to be acknowledged
internationally as a recognized supplier of natural
ingredient products that were CBD compliant and as
guided by the BioTrade Principles.


Nevertheless, in the face of the manifest linkages
between Biotrade and ABS principles, there is a
practical challenge for stakeholders to determine how
BioTrade can adopt the mandatory ABS principles
under the Protocol and how the implementation of
certain aspects of the Protocol will impact BioTrade
businesses and activities. On this account, UNCTAD
through the BioTrade Facilitation Programme III
(BTFP III) is working to develop policy options for the
implementation of the Protocol on Biotrade, pitching
towards ABS systems that are supportive of BioTrade
activities. In line with this undertaking, UNCTAD
offered technical support to countries, of which Viet
Nam was a beneficiary. During the course of technical
support, Viet Nam was provided a review of their
national regulation on BioTrade-related issues, an in-
depth analysis of the status of BioTrade and ABS in
the country, and face-to-face training for interested
stakeholders.




2 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


This report (i) identifies and explores main regulatory
challenges in Viet Nam, (ii) addresses issues of
concern and policy options to develop in response
to (i), (iii) assesses the country’s national competent


authorities’ ABS frameworks supportive of BioTrade,
and finally (iv) considers the outlook for businesses
and other relevant stakeholders in line with the new
obligations under the Nagoya Protocol in Viet Nam.


Photo credit: ©Fotolia: anando.a




3vIeT Nam


II. OveRvIew


A. Viet Nam’s biological resources
Aside from Viet Nam’s global importance for its
natural biodiversity, the country is also well known for
its seemingly inexhaustible agro-biodiversity. Its rich
repository of genetic resources (GRs) has played a
critical role in the country’s economic development
in recent years, notably in the agriculture, forestry
and fishery sectors. Moreover, the unprecedented
development of biotechnology, pharmaceuticals
and cosmetics industries and trade has generated
additional benefits for the country and its people.
Indisputably, the GRs (and their associated traditional
knowledge if any) are one renewable resource
which can be considered as a key driver to attain
Viet Nam’s sustainable development objectives
and a replacement for the current exploitation of
non-renewable resources such as coal, oil, gas and
minerals in Viet Nam.


B. Genetic resources
Vietnam has an abundant and diverse, but relatively
unknown, flora. According to the “Flore Générale de
L’Indochine”, the country has more than 7,000 plant
species 1,850 genera and 290 families. Of these, 64
genera and 2,084 species are endemic. The NBAP
1995, estimates that there are about 12,000 plant
species in Vietnam (7,000 of which have been named).


One excellent example of GRs diversity in Viet Nam is
rice (Oryza sativa), one of the most widely consumed
staple food in Asia (and the rest of the world) and the
most important and most abundant GRs in Viet Nam.
The Mekong Delta, home to 17 million Vietnamese,
yields more than half of Vietnam’s rice production
and a third of its GDP - this is owing to the quality
of soil and abundance of water supply in the region.
The National Plant Gene Bank (belonging to the Plant
Resources Center, Vietnam Academy of Agricultural
Sciences) currently preserves 6,0002 varieties of local
rice. One example, of a versatile rice GR is the aromatic
Jasmine rice, which can be grown in other countries in
temperate zones. The Cuu Long Delta Rice Research
Institute maintains 1,800 samples of traditional rice
and 160 samples of wild rice from Southern Viet Nam.


Other sources of abundant GRs is the forest which in
total contributed US$ 2.4 billion to the economy in 2011


(approximately 17 per cent of the GDP,)3 are 20,000
terrestrial and aquatic flora species which includes 150
protein tree species, 130 fruit tree species, 100 oil tree
species, 90 fiber tree species, more than 1,000 wood
tree species, 3,850 plant species used for medicine,
and several hundred cosmetic tree species. There are
more than 12,000 plant species in the forests, among
which, there are 7,000 species belonging to 1850 lines
of 267 angiosperm families. About 2,300 forest tree
species are used for food, medicine, animal feed, or
materials for national timber requirements purposes.


The GRs of domestic fauna also have significant
economic value in Viet Nam4. As an example, endemic
Mong chickens brought, on average, breeding
benefits of 3 billion VND (about US$ 134,336) to each
village and 4 million VND (about US$ 179,115) for
each village’s household. Viet Nam is also a center
of primate genetic diversity. Primates in the country
comprise 25 species and sub-species belonging to
three families, of which several are endemic, facing
extinction, vulnerable or are of high-value.7 These
include: Tonkin snub-nosed monkey, golden-headed
langur (Cat Ba langur), black langur, stripe-headed
black langur (Hatinh langur), Delacour’s langur, and
the white-rumped black langur. All these are listed in
the Red Data Book of Viet Nam as threatened with
extinction. By 2007, the total number of endangered
wildlife species is 882, including 418 animal species
and 464 plant species, which is 161 species more than
that in the period 1992-19968. Currently, 28 per cent of
total animal species, 10 per cent of birds, and 21 per
cent of reptiles and amphibians are at risk of extinction.


C. Traditional Knowledge associated
with GRs


To date, the use of traditional knowledge (TK) with
medicinal plants by way of traditional medicine or
oriental medicine contributes significantly to the
available treatment options for many people in
Viet Nam, both in rural and urban settings. It is an
integral part of the national health care system in
that a majority of the population uses the traditional
knowledge for treating common health problems as
it is widely believed that medicinal plants produce no
or few side effects than that of the medicines available
commercially. Viet Nam is home to an estimated
12,000 species of high-value plants, of which 10,500
have been identified, and approximately 3,780, or
36 per cent of which, have medicinal properties.
Vietnamese medicinal plant species account for




4 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


approximately 11 per cent of the 35,000 species
of medicinal plants known worldwide. This figure
is artificially low as there are many medicinal plants
species (ethno-medicine plants) whose properties are
not yet generally known and are used only by ethnic
minority groups in the country who make up 14 per
cent of the total population.


In Viet Nam, the wealth of TK in traditional medicines
is used not only to cure common ailments, but is also
in combination with modern medicines to treat other
more serious diseases. The Ministry of Health confirms
that about 30 per cent of patients receive medical
treatment alongside traditional medicine. Indeed, the
last 50 years has shown that there has been a growing
resurgence of traditional medicine use in Viet Nam.
At first sight, this may seem favourable to patients,
practitioners and users of TK in traditional medicine.
However, as the demand for medicinal plants rapidly
increases and they are accessed and appropriated
indiscriminately, hundreds of thousands of tons of
raw medicinal materials are exploited from wild plants.
Consequently, the great commercial benefit such
demands create could pose a threat to biodiversity
through poor agricultural practices coupled with
over-harvesting of the genetic resources for herbal
medicines and other natural health care products.
These practices, if not regulated, may lead to the
extinction of endangered species and the destruction
of natural habitats and resources. Recently, Viet Nam
has started importing (mainly from China) more than
80 per cent of the raw materials it uses.


Traditional knowledge (particularly medicinal)
associated with GRs is not well protected (if at all)
by Viet Nam’s intellectual property (IP) system. In
effect, the rights and interests of the indigenous and
local communities who are the holders of relevant TK
are not taken into consideration when for example a
new drug is invented out of the exploitation of the TK
associated with GRs.


Despite being a party to the CBD since 1994,
establishing stand-alone laws on ABS and
incorporating administrative structures in the process,


the Nagoya Protocol on ABS remains a novel concept
in Viet Nam. Legal obligations, if any, are based on the
parties’ bargaining power during the negotiations and
not on operationalizing ABS in practice. Consequently,
parties (especially the GR providers) to the agreements
relating to the access and use of genetic resources
and their associated TK are not able to fully benefit
from the provisions of the Protocol. More often, the
providers’ participation during the course of and within
the development of value chain(s) is limited to the
stage where ownership of the materials is transferred
to the user (access stage). Users take no account
of the provider’s rights and their obligations to share
benefits under the Protocol. Another issue is the lack
of awareness of the ABS provisions. Most notably,
the indigenous and local communities who provide
their TK have remained unaware of its value and their
legal rights over them; hence – the inability to provide
informed consent, negotiate fair and agreeable
terms and require equitable compensation relating to
such rights. The collection of GRs for research and
development (R&D), and commercialization attracts
foreign as well as national organizations and individual
users. The extent of the loss of GRs to unauthorized
collections is unknown, as is the scale of the benefits
the country could have enjoyed, had it been aware
and able to claim them.


Making the Vietnamese ABS issues more complex
is the fact that the country is not a party to FAO`s
International Treaty on Plant Genetic Resources
for Food and Agriculture (IT PGRFA). The Protocol
takes into consideration that there are other existing
‘specialized instruments’ relating to plant GRs and to
steer clear of overlapping legislation on them, Article
4 of the Protocol purports that materials covered by
‘specialized instruments’ like the ITPGRFA would not
be within the scope of its ABS rules. Consequently
and in light of national ABS regulations in Viet Nam,
plant GRs for food and agriculture (including those
consumed as food) will be in principle covered by the
Nagoya Protocol as the country is not yet part to IT
PGRFA as a specialised instrument. This does not
preclude, however, that Viet Nam developed special
rules for these resources due to their particular nature.




5vIeT Nam


III. NagOya PROTOCOl ON
aCCess aND BeNefIT
shaRINg: sTaTUs IN vIeT Nam


Viet Nam’s rapid population growth, the compelling
requirements for socio-economic expansion, and
other direct or proximate processes with immediate
impacts on biodiversity, such as deforestation, GRs
degradation and alarming increase of protected
species in the country’s Red Data Book, regulation of
use of biodiversity has never been more crucial. The
ABS concept was introduced in Viet Nam in the 2000’s
but the government have yet to establish an effective
management tool. The Biodiversity Law 2008 (“BL
2008”) incorporates provisions on ABS (see Access
and Benefit Sharing rules and the BioTrade approach:
An overview, from p.42) and a masterplan for capacity
building on ABS is underway since 2015.


A. Implementation Strategies
In addition to its national implementation strategies, the
Vietnamese government also have access to global
funds set up by developed countries to support their
emerging counterparts to improve the implementation
of the Protocol, update their existing national
ABS regulatory regimes, contribute to biodiversity
conservation, alleviate poverty and improve the
livelihoods of local communities. Resources from such
funds can also be used to raise awareness on the


Protocol and its national implementation, the values
and potential benefits of GRs, TK and the importance
of biodiversity conservation.


In this regard, Viet Nam has been working with
international organizations and projects to raise
awareness on the importance of biodiversity and to
improve the existing regulatory systems that governed
it for some time. The list below includes some of the
projects that have contributed to Viet Nam’s current
systems and level of awareness on the importance of
its biodiversity and their sustainable use:
• Building legislation on access to plant GRs (2000-


2001) implemented by the Viet Nam Association
for Conservation of Nature and Environment
(VACNE) with the Ministry of Science, Technology
and Environment (MOST) as supported by the
International Development Research Centre of
Canada;


• Capacity building for the development of a legislation
on ABS (2002-2004) implemented by Viet Nam
Environment Administration (VEA), MONRE, MOST,
VACNE, International Union for Conservation of
Nature (IUCN) and German Agency for International
Cooperation (GIZ);


• Projects under the framework for the implementation
of the National Action Plan for Biodiversity (1996-
2005) implemented with various international
partners with a budget of US$ 13 billion.


• Several projects implemented by MONRE seeking
to put in practice the BL 2008 including a project of


Photo credit: ©Fotolia: anekoho




6 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


VACNE, IUCN, a project implemented by Institute
of Strategy and Policy on Natural Resources
and Environment and a background paper on
theory, practice and recommendation for the ABS
management regime from 2009-2010


• Collaboration of international organizations, several
communities, companies, research institutions to
develop and improve the stakeholders’ working
knowledge on ABS when they consider accessing
GR for research projects on plant varieties,
breeding, cosmetic and pharmaceutical products.


However, despite the above endeavours, social survey
results identifying national priorities for ABS capacity
building in 2013 showed that:
1. Access to GR had been taking place for a long time


but the government authorities were unable to put
in place a management system that could regulate
it;


2. There was no official GRs and TK database that
could enable systematized monitoring;


3. Many GR users were not aware of their
responsibilities to obtain licenses to access GR,
and negotiate and implement the MATs;


4. The complicated situation of the State’s
management of GRs resulted in the Protected
Areas Management Boards’ lack of understanding
of their authorities and responsibilities;


5. ABS-related activities of the communities were
unprompted, weak and seasonal, and were
concentrated to some GRs that are known to have
a high market value;


6. The Government’s management authorities’
knowledge about ABS concepts/issues was
limited; and


7. The awareness of the communities on ABS issues
was inadequate if not minimal.


Since becoming a Party to the Protocol, the
Biodiversity Conservation Agency (BCA) has carried
out a number of projects9 for (i) capacity building, (ii)
enhancing of the national legal system and (iii) raising
awareness related to ABS in Viet Nam:
1. The ASEAN Centre for Biodiversity (“ACB”) project


on “Building capacities of countries in support of
the development and implementation of National
ABS Frameworks”. Viet Nam, Lao PDR, and
Myanmar have been selected to participate in
the project. The implementation will be carried
out through collaboration between the UNEP
Regional Office for Asia and the Pacific and ACB.
The project aims at providing technical support to


countries for developing national ABS regulatory
and institutional frameworks and piloting initiatives
to implement the Nagoya Protocol on ABS for
selected ASEAN Member States. The project has
a strong focus on promoting regional cooperation,
knowledge sharing and learning on ABS within
ASEAN Member States and China.


2. UNDP-GEF project on “Capacity Building for the
Ratification and Implementation of the Nagoya
Protocol on Access and Benefit Sharing in Viet
Nam”. The project uses a non-refundable aid of over
US$ 2 million from the United Nations Development
Programme (UNDP) via the Global Environmental
Fund (GEF). This four-year project was implemented
in Hanoi and the province of Lao Cai. The project
supported the establishment of a comprehensive
legal, regulatory and administrative framework in
full compliance with the Nagoya Protocol in Viet
Nam. Capacity at different levels of the government
was strengthened to improve understanding and
implementation of the national ABS regime. Specific
experiences and demonstrations at the local level
was also conducted to guide the application of
ABS principles in Viet Nam and support sustainable
use of genetic resources.


3. Collaboration with Bio Trade project of Helvetas’
to develop a training material for ABS.


4. Activities under the BTFP III with UNCTAD. This
study together with the revision of the Decree
and draft Circular, as well as training workshops
and national consultations that took place in June
2016.


A survey by questionnaire was also undertaken
showing that:
• Domestic GR users are mainly institutes, research


centers, and universities in agriculture, forestry,
breeding, aquaculture and medicine;


• Foreign GR users on the other hand, tend to
be institutes, research centers, universities,
international organizations under the cooperation
projects of countries such as Korea, China, Japan,
Russia, France and Sweden, among others;


• Accessed genetic resources are mainly plants
for food, industrial and medicinal (for example:
OryzaSativa L. (Asian rice), Solanum tuberosum
(potato), Ipomoea batatas (sweet potato), Canna
edulis (edible Canna), Colocasia esculenta (L.) (taro),
Manihot esculenta Crantz (cassava), Glycine max (L)
(soybean), Vigna radiata Wilczek. L, (Mung bean),
Arachis hypogaea L. (peanut), Gossypium hirsutum
L (upland cotton), Croton tonkinensis GAGNEP




7vIeT Nam


(‘Kho sam Bac Bo’), Salacia cochinchinensis10, and
Salvia miltiorrhiza (red sage). Accessed GRs also
included those from animals and microorganisms;


• The objectives of access to GRs mainly are
for research and development finding new
compounds, collection and exchange, technology
transfer, databases, and trainings;


• The authorities that allowed the access to the GRs
were: MARD, MOIT, MOST, the Vietnam Academy
of Science and Technology, and the Viet Nam
Rubber Group;


• Benefits from corporations for accessing GRs were
mainly capacity building, exchange of knowledge,
trainings, finding new compounds for development
of medicines, financial support for research, as well
as sharing of information.


The numbers of applications for access to GRs that
have been submitted to the Biodiversity Competent
State Agencies are increasing gradually. This is an
indication that there has been enhanced awareness of
the ABS concepts and implementation of the Nagoya
Protocol and ABS regulatory in Vietnam. A summary
of these ABS cases are provided in an Annex to this
report.


B. Snapshot: Viet Nam’s National ABS
Regulatory Framework


This section introduces the existing ABS regulations
and laws applicable in Viet Nam, notably: the 2008
Biodiversity Law No. 20/2008/QH12 (BL 2008) and the
Decree No. 65/2010/ND-CP) on Detailed Regulations
and Guidelines for Implementation of some Articles
of Biological Diversity Law pursuant to the Nagoya
Protocol and the CBD.


The BL 2008 includes provisions on biodiversity
conservation and sustainable development, as well
as rights and obligations of organizations, households
and individuals dealing with biodiversity. Decree No.
65/2010/ND-CP details and guides the implementation
of a number of articles of the Biodiversity Law,
including those on access and use of GRs. Together,
they are referred to as the “Regulations” in this report.


i. Genetic resources and their legal status


The CBD and the Nagoya Protocol confirm the principle
of sovereign rights over GRs but do not expressly specify
who owns them. The default position therefore is that
the States enjoy such sovereign rights and have the
jurisdiction to regulate the licenses and the contracts
relating to access and conditions of use of GRs.


Exercising this sovereign right, the Biodiversity Law of
Viet Nam provides that “The State uniformly manages
all GRs in Vietnamese territory” (Article 55.1). This
confirms the State`s representation and management
of all GRs in the national territory on behalf of the
Vietnamese people, essentially, assuming a guardian
position to the management of the Vietnamese people’s
resources per Article 53 of the 2013 Constitution of the
Socialist Republic of Viet Nam:


“Land, water resources, mineral resources, resourc-
es in the sea and airspace, other natural resources,
and property managed or invested in by the State
are public property, owned by all the people, and
represented and uniformly managed by the State.”


To exercise this overall representation and
management role fully, the State assigns organizations
and individuals to manage GRs with specific rights and
responsibilities under Article 56 of the Biodiversity Law
and Article 18 of Decree No. 65/2010/ND-CP. The GR
“managers” are as follows:
1. Management boards of protected areas or


organizations: management of GRs in protected
areas;


2. Heads of biodiversity conservation facilities,
scientific research and technological development
institutions, GR storage and preservation
establishments to manage their own GRs;


3. Organizations, households and individuals assigned
to manage or use land, forests or water surface to
manage GRs assigned to them;


4. Commune-level People’s Committees: to manage
GRs in their localities11


By legal doctrine on property ownership, rights may be
classified as tangible, corporal or intangible. In the case
of GRs, there may be a basis for distinction between
the rights over the physical entity (physical property
of the resource) and over the genetic information that
the resources contain (intangible property).12 This
intangible property aspect of the property represents
the real value of the resources, and is where legal
implications are particularly complex.


“The material and geographic aspects of a GR pose
an extraordinary challenge because most living or-
ganisms reproduce and disperse naturally, irrespec-
tive of restrictive measures that policy makers wish to
lay on them, carrying out into the world the very quali-
ties that bioprospectors and users are seeking rights
and provider countries are seeking to control. This
biological fact is compounded by the elusive nature
of information as valued added: information, even




8 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


when derived from biological resources, is intangible
and therefore requires a special property regime.”13


However, the concept of ownership per usual does
not tend to distinguish between ownership of the
tangible and intangible elements of the GR.


A further complication may arise when dealing with
cases of access and/or use of TK associated with
GRs. While GRs are, by law and general practice,
managed by the State, there is no specific provision
stating the same for TK in Viet Nam. In other words,
while a GR involves tangible and intangible property
rights that belong to the people of Viet Nam, TK is
purely an intangible property that may belong to an
individual person, communities or an undetermined
owner such as folk knowledge or be publicly owned
TK. State may define rights over TK, however it must
be borne in mind that holders of that knowledge
already have possession and customary law rights
over such knowledge.


ii. Access to Genetic Resources in Viet Nam


Procedures to access GRs are set out in Article 57 of
the BL 2008, which stipulates three key requirements:


(i) to register the access; (ii) to negotiate and sign
written contracts for the access and for benefit-sharing
with organizations or individuals assigned to manage
the GR; and (iii) to apply for licenses for access as
provided by Article 59.


The Decree No. 65/2010/ND-CP provides more
details on the procedural steps required for access.
These include a written registration, signing an
agreement on access and benefit-sharing for the
use of the GR, submitting an application dossier to
the competent national authority, and obtaining the
permit. However, these provisions do not provide
deadline guidelines or the relevant documents and
forms required. The provisions of Decree No. 65/2010/
ND-CP are too general to be applied in practice and
therefore do not meet the Protocol requirements for
legal certainty, clarity and transparency of domestic
access and benefit-sharing legislation and for fair and
non-arbitrary rules and procedures for accessing GR
in a cost-effective manner and within a reasonable
period of time.


Some basic steps following Decree No. 65/2010/ND-
CP include:


Figure 1: The Decree No. 65/2010/ND-CP Access to GRs procedures




STEP 1:
Art. 18.2 (a)


1. Registration in writing
2. Approval from PPC
where GRs are located


Time frame
Varies (depending on the


applicant)


STEP 2:
Art.18.2 (b)


3. ABS contract signing
4. Relevant Parties:
a. The organization, household,
or individual assigned to manage
GRs signs the contract
b. The commune-level PPC where
GRs are accessed certifies the
contract


Time frame
Undetermined


STEP 3:
Art. 18.3 (a) and (b)


5. Submission of an application
dossier for a license for access
to genetic resources to a
competent agency
6. MONRE grants the license for
access to genetic resources for
species prioritized for protection
7. PPC grants remaining
licenses


Time frame
45 days from the date of receiving a


complete and valid application
dossier


* In case of refusal, there will be a
notice in writing sent to the applicant


stating clearly the reason


STEP 4:
Art.18.3 (d)
/Subject to


approval in Step 3


8. The license for access to genetic
resources is sent
9. Commune-level PP where genetic
specimens are surveyed and collected
10. Organization or individual assigned
to manage genetic resources to be
accessed
- MONRE in case the license for access
to genetic resources is granted by PPC


Timeframe
Undetermined


• It is not specified who will send the
license in this last step: the applicant


or granting agency




9vIeT Nam


License granting procedures for access to GRs have
proven to be complex, burdensome and difficult to
fulfil in practice. This is mainly because: a) there is no
distinction between accessing GRs in-situ (in nature)
or ex-situ (in collections); b) there is no distinction
between accessing GR for scientific research or
for commercialization purposes; c) some of the
management of ABS issues have been assigned
to authorities that do not have sufficient capacities
to carry out their obligations as provided by the
Regulations (e.g. Provincial Peoples Committees). In
parallel, the provisions on who has the competence
for granting access licenses are not fully consistent
and feasible. In this respect, below is a summary of
the overlaps and/or inconsistencies in the authority
and competencies between the following ministries
and agencies:
A) Between the MONRE and the MARD:
- Article 18.3 of Decree No. 65/2010/ND-CP


stipulates that MONRE has authority to grant
permit to access genetic resources of species
prioritized for protection and that the Provincial
Peoples Committees (PPCs) have authority
to grant permits to access genetic resources
for the remaining species. However, there
are conflicts with the MARD’s authority and
competence that make this Article challenging
for implementation purposes, namely:


- Species prioritized for protection under the
Decree No. 160/2013/ND-CP dated Nov
12, 2013 include plant varieties and animal
breeds, microorganisms and fungi under
the management of MARD as provided by
Article 18.2 of the Decree and in line with the
Ordinances on plant varieties and livestock
breeds. However, according to Decree No.
65/2010/ND-CP, the PPC is responsible for
granting access to these GRs.


- Decree No. 82/2006/ND-CP dated August
10, 2006 on management of export, import,
re-export, introduction from the sea, transit,
breeding, rearing, artificial propagation of
endangered, precious and rare wild fauna and
flora species, provides that MARD is responsible
to grant license for import, export, re-export of
these species. While according to Decree No.
65/2010/ND-CP, MONRE is responsible for
granting access to GR of these species and it
is not clear whether the license for access to
GRs under ABS regime can be replaced by the
export license under the Decree No. 82/2006/


ND-CP or not.
- For wildlife, the competence for granting


licenses is more clearly defined, with
species prioritized for protection (excluding
plant varieties and livestock breeds and
for commercial purposes) falling under the
responsibility of MONRE following the Decree
No. 160/2013/ND-CP. However, the Ministry
has difficulties in implementing the licensing as
stipulated above because most of the protected
areas are currently under the management of
MARD and PPCs.


B) Among MONRE, The Departments of Natural
Resources and Environment (DONRE) and the PPCs:
the decentralization of licensing responsibilities to the
PPC seems to be impractical and unrealistic.


The competency for granting access licenses to the
remaining GRs is assigned to the PPCs but, according
to the State’s vertical management hierarchy, the
MONRE is assigned to license access to GRs. The
DONRE is assigned by the PPC to exercise the
power of licensing to access to remaining GRs.
However, the capacity of the DONRE is extremely
limited to management of biodiversity in general and
GRs in particular. In addition, the DONRE have no
full time staff specialized in biodiversity who possess
comprehensive understanding and knowledge of the
Biodiversity Law.


C). Unclear demarcation of management between the
MONRE and the MOST:


In many cases of ABS, access to GRs cannot be
separated with TK associated with GR.14 The BL 2008
says that TK copyrights are protected by the State.
The State encourages and supports organizations and
individuals to register their TK copyrights.15 However,
the authority for the management of TK copyrights
is assigned to the MOST16. There is currently no
cooperation between the MOST and MONRE with
regards to this matter making it onerous to register TK
IPRs as there is no facility to manage licensing access
to GRs and TK.


This difficulty may be addressed if copyrights (or similar
IP tool) applications are dealt with at the MONRE. This
may be done at the same time with granting permit
for access to GRs. There is no specific provision
that responsibilities should be done by MOST only,
hence considering MONRE to play a crucial role
in this process would not be against the legal and
administrative processes of the country.




10 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


Article 58 of the BL 2008 states the mandatory
requirement that ABS contracts must include: i)
Purpose of accessing the GR; ii) details of GRs to
be accessed and volume of genetic resources to be
collected; iii ) Place of access; iv) Plan for access;
v) Potential transfer of the results to a third party; vi)
Planned activities of R&D or production of commercial
products using GRs; vii) Participants in R&D or
production of commercial products using the GRs; viii)
Place for conducting R&D or production of commercial
products using the GRs; ix) Sharing of benefits with
the State and related parties, including benefits from
the intellectual property rights over inventions resulting
from the accessed GRs and any related TK. Without
further guidance than what has been provided in
Article 58, it will be difficult to prepare and implement
an ABS contract in practice since communities and
local people, who are the GRs suppliers, usually have
a limited capacity and knowledge about ABS issues
and have minimal or no experience in negotiating
and signing a contract protecting their own interests.
It is then necessary to have a sample contract and
practical guidance for dealing with ABS-related
agreements that follow the national legal requirements
and ensure that there is a fair and equal distribution of
benefits from the access and use of GRs.


The BL 2008 does not contain provisions on trade
intermediaries supplying GRs for overseas users. The
Regulations do not distinguish between domestic
and overseas users either. In any event, a distinction
between these two users is quite complex in practice.
In a globalized setting, companies and business
entities tend to have more complex and elaborate
ownership. As an example, a national company in
Viet Nam may act as a supplier of raw materials for
companies abroad that may be undertaking R&D
and foreign-owned companies may also have branch
offices or have been incorporated in Viet Nam. In all
these cases and in many other potential ones, the
differentiation between local and foreign companies is
at best perplexing.


It should be noted that as of yet, there have been
no licenses nor any application of the above
procedures under the Regulations from their coming
into force until now. Clearly, an amendment or
complementary regulations are needed to overcome
the abovementioned constraints and shortcomings
in order to ensure the Protocol requirements of legal
certainty, clarity and transparency, as well as effective
and fair procedures are satisfied.


iii. Benefit-sharing


The Regulations have created a basic legal framework
with minimum requirements for benefit-sharing under
mutually agreed terms (MAT) that must be set out in an
ABS contract. Regarding MAT, Viet Nam’s regulatory
regime conforms to the Nagoya Protocol, which
merely stipulates that “Each Party shall take legislative,
administrative or policy measures, as appropriate…”
(Article 5.2) and requires that Parties “establish clear
rules and procedures for requiring and establishing
mutually agreed terms” (Article 6.3.g) without setting
out any concrete requirements. In spite of its apparent
conformity with the Protocol, however, it is difficult to
ensure fair and equitable benefit-sharing under Viet
Nam’s current ABS regulatory regime. There are many
serious loopholes for fair and equitable benefit-sharing
that warrant a re-consideration of the Regulations and
or a creation of supplementary regimes that could
address the below incompatibilities with the Nagoya
Protocol and other international instruments:


First of the numerous omissions regarding the
Regulations is the right to benefit-sharing as provided
by Articles 58 and 61 of the BL 2008, and as elaborated
by Article 19 of Decree No. 65/2010/ND-CP.


Under Article 61 BL 2008, benefits arising from access
to GRs must be shared with three parties: 1) the State,
2) the organizations, households and individuals who
are assigned to manage the accessed GRs and; 3)
the organizations and individuals that have access
licenses to GRs (GRs users) and related parties as
determined in the licenses.


This provision does not include the indigenous and
local communities who provide TK associated with the
accessed GR. The indigenous and local communities
are not “related parties” as established in Article 59.3
BL 2008. Article 60.2.c, however, does recognize
TK provider’s rights by requiring users: “to share
benefits with related parties, including the distribution
of intellectual property rights over invention results
based on their access to GR and copyrights of TK
associated with GR”.


The same problem arises regarding the sharing of
benefits with local communities, residents in buffer
zones of protected areas with whom the benefits
should be shared primarily in order to encourage
participation in conservation and sustainable
development activities and practices. The BL 2008
does not include provisions to require their inclusion
in benefit-sharing contracts. In fact, Article 55.2 only




11vIeT Nam


Photo credit: ©BIG Viet Nam




12 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


mentions the management board of the protected
areas and organization assigned to manage GRs in
such areas as the recipients of benefits derived from
the use of GRs accessed in the area. Even though
local communities may reside within or near these
protected areas, they are not assigned to manage
the GRs in the area and are therefore, excluded in
the related benefit sharing provisions under the law.
Moreover, buffer zones under the Vietnamese law are
not perceived as “protected areas”17 making it more
difficult to find a legal basis for their inclusion in the
ABS regimes for GRs in protected areas.


Decree No. 65/2010/ND-CP provides a list of benefits
that may be shared, including both monetary and
non-monetary types (Article 19.1). These include:
sharing the results of R&D, transferring of technology,
training, strengthening of capacities, contributions
to local economic development and sharing of the
profits earned from the commercialization of goods
produced from the use of accessed GRs, and related
TK (if any).18


The Decree No. 65/2010/ND-CP also tries to quantify
the percentage of total benefit to be shared by users
with provider parties. Although it leaves the specific
amount free for negotiation among the parties, it does
establish that it must not be below 30 per cent of
the total benefits that are received in cash.19 On the
face of it, this provision does not seem to be feasible
and is difficult to apply in practice, especially since it
does not specify how to determine the total benefits
in the first place, when (i.e. at which stage in the
value chain) such benefits can be quantified, whether
benefits arising from use from third parties also need
to be shared, as well as the time of termination for the
sharing of benefit shall occur.


In Latin America and Africa for example, the mandated
(or contract-specified) amount of monetary benefits
to be shared ranges, depending of the case, from 1
to 4 per cent of the commercial sales or the revenue
from those sales. When compared to these, the figure
asked for by the Vietnamese law is unrealistically high
which may discourage inflow of potential businesses
and investments into the country.


Although the Decree No. 65/2010/ND-CP establishes
a cooperation scheme between MONRE, MARD and
the Ministry of Finance to issue a joint-circular to guide
the management and use of shared benefits from
access to GRs, the Regulations fail to address the
issue regarding what happens with the benefits that


arise from the use of GRs accessed before the entry
into force of the Protocol (i.e. on 12 October 2014) and/
or without access license or agreement that meets PIC
and MAT requirements. Just like in many other provider
countries, many Vietnamese GRs had been accessed
and taken out of Viet Nam before the CBD or the
Regulations entered into force. In this case, the right
to benefit sharing should still apply from the continuous
use of those GRs till present to ensure that such benefits
are received by the State, which consequently could
contribute to the national biodiversity conservation.
Although, the CBD and the Protocol rules are inexplicit
regarding accessed GRs prior to their entry into force,
there are some country experiences and related
legislation that deal with such case.


An example is the benefit-sharing rules of Japanese
government stipulating that: “Where the laws and
administrative measures of the providing country
regarding pre-CBD matters provide otherwise, it is
necessary to comply with them.”20


iv. Treatment of traditional knowledge under the
Regulations


The BL 2008 defines TK associated with GR as “means
of knowledge, experience and initiatives of indigenous
and local people on the conservation and use of
GRs” (Article 3.28). It also encourages organizations
and individuals to “invest in and apply scientific and
technological advances and TK to the biodiversity
conservation and sustainable development, and
guaranteeing their lawful rights and interests” (Article
5.3).


However, as discussed above, provisions on ABS
agreements and actors with whom benefits need to
be shared with do not include the TK providers. While
Article 60.2.c of the BL 2008 stipulates that benefits
need to be shared with related parties, including the
distribution of intellectual property rights (IPRs) over
resulting inventions based on accessed TK, it only
covers copyrighted TK, i.e. benefits are only shared
when the TK has recognized copyrights, otherwise,
no benefit sharing may be required. Further to this, the
current regime does not provide IPRs for TK. There is
only a general provision in Article 64 stating that “the
State protects TK copyrights on GR and encourages
and supports organizations and individuals to
register TK copyrights on GR”. It also specifies that
MOST “shall assume the prime responsibility for, and
coordinate with concerned ministries and ministerial-
level agencies in, guiding procedures for registration




13vIeT Nam


of TK copyrights on GR.” Until now, the MOST has
not issued any guiding procedures for registration of
TK copyrights on GR yet nor is there any provision to
clarify the rights and benefits of indigenous and local
communities.


The registration for the copyright of TK will be difficult if
not impossible to be implemented because the TK that
could be protected through copyrights, related rights
or industrial property rights has not yet been defined in
the first place. For copyrights, and in terms of general
practice, the licensing competence is assigned to
the Copyright Office, an agency under the Ministry
of Culture – Information (now the Ministry of Culture,
Sports and Tourism). The BL 2008 establishing the
MOST as the competent agency, creates an overlap
of state management procedures for the registration
of TK copyrights making compliance onerous and
simply unrealistic.


Viet Nam is a member state of both WIPO and the WTO
as well as a member of the 1995 ASEAN Framework
Agreement on Intellectual Property Cooperation. In
the country, IPRs are regulated in a chapter of the Civil
Code of 2005 - the Law on Intellectual Property of the
same year, and the Decree No. 104/2006/ND-CP of
the Government on detailed regulations to implement
some articles in the Intellectual Property Law, Chapter
on Plant Variety Rights dated 22 September 2006.
Under these regimes, some types of TK have been
protected under certain intellectual property rights
such as Geographical Indications, Indications of
Origin such as “PhuQuoc” for fish sauce, “MocChau”
for green tea, traditional medicines for Vietnamese
Ginseng Ngoc Linh, and patents granted for snake
bite medicines and medical oils.


Last but not the least, the question regarding who
owns and eventually who should benefit from the use
of TK associated with GRs in the public domain also
remains unanswered. As PIC and MAT requirements
are expected to apply to such GRs, another
mechanism for registration is by way of applying for
IP protection through copyright. Potentially, this could
provide national benefits to Viet Nam as brought up by
India and China during the negotiations of the Nagoya
Protocol- under the presumption that the State will
be the de facto representative for TK in the public
domain. However, whether this direction would be
taken by the State or not, the fundamental issue as to
ministerial competency relating to TK (associated with
GRs) becomes an intermittent hurdle for parties that
intend to be compliant.


v. Compliance and enforcement


Compliance and enforcement in the implementation of
ABS Regulations and practices is important to ensure
that provisions on access and fair and equitable
benefit sharing according to the PIC and MAT are
met. In addition to providing the option of acquiring an
‘international certificate of compliance’ based on the
permits issued by a competent agency at the national
level, the Nagoya Protocol requires member countries
to have effective and appropriate legal, administrative,
policy measures to ensure compliance.


Article 59 of the BL 2008 establishes the conditions
required for the competent authority to grant an access
license to GRs. Such conditions are: (i) registering with a
government competent agency; signing a contract for
access to GRs and benefit sharing with organizations,
(the management of genetic resources shall be
granted to an individual and a signing a household);
and not seeking for a permission to access GRs which
are included in the List of endangered, precious and
rare species prioritized for protection21, (these species
are not in any case allowed by the State’s competent
agency to be accessed, as well as the use of GRs
potentially harmful to humans, environment, and any
such use which would threaten national security and
defense and is against the public interest).


A license for access to GRs must include, at least, the
following information: a) purpose for using the GR; b)
which GR to be accessed and the collection volume;
c) location of access; d) activities to be undertaken
related to the GR; e) period reports on R&D results,
as well as details on any production of commercial
products related to the accessed GR.


The Protocol establishes that “a permit or its
equivalent issued in accordance with Article
6, paragraph 3 (e) and made available to the
Access and Benefit-sharing Clearing-House, shall
constitute an internationally recognized certificate
of compliance.”22 However, minimum information
must be included in an internationally recognized
certificate of compliance. The information required
for such a certificate23 is different from one stipulated
by the BL 2008 of Viet Nam though. An internationally
recognized certificate of compliance is required to
include the following:
• issuing authority;
• issuing date;
• unique identification of certificate;
• The provider (the person or entity that holds the




14 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


right to grant access to the genetic resources in
accordance with domestic legislation);


• individuals and entities that have granted PIC and
confirmation that the PIC was obtained or granted;


• genetic resources and their specified use
(commercial or non-commercial use) that is within
the scope of the contract signed;


• conditions for third party transfer; and
• confirmed negotiation and relevant signatures in


MATs.


Thus, as a Party to the Protocol, Viet Nam needs
to also require that its access licenses include the
different elements mentioned above as provided for in
in Article 17.4 of the Protocol. The content required by
the Protocol for the access license is appropriate and
ensures the compliance with PIC and MAT.


According to Articles 59 and 60 of the BL 2008,
organizations and individuals licensed to access GRs
should: a) investigate and collect GRs and carry out
other activities as indicated in their access licenses;
b) refrain from taking out of the Vietnamese territory
GRs which are on the list of those banned from
export under the national law; c) trade with products
made from GRs they have access licenses for; and d)
other relevant rights as specified in their licenses and
contracts for access and benefit sharing.


The list of GRs banned from export is under the
regulation of the Decree No. 187/2013/ND-CP
dated November 20, 2013 providing in detail the
implementation of the Vietnamese Commercial Law
regarding international sale and purchase of goods,
processing and transit agency activities with foreign
countries. The goods banned from export which are
relevant to GRs are as follows:
• Precious and rare wild animals and plants as well


as domestic animals and plants of IA-IB groups as
specified in the Government’s Decree No. 32/2006/
ND-CP of March 30, 2006, on management
of endangered, precious and rare forest plants
and animals and precious and rare wild animals
and plants in the “Red Book” per Viet Nam’s
commitment to the international organizations;


• Precious and rare aquatic species;
• Livestock breeds and plant varieties on the list of


precious and rare livestock breeds and plant varieties
banned from export promulgated by the MARD in
conformity with the 2004 Ordinance on Livestock
Breeds and the 2004 Ordinance on Plant Varieties.24


At the same time, organizations and individuals


licensed to access GRs have the following obligations:
a) to adhere to the provisions of their licenses for
access; b) to submit reports to competent licensing
agencies on R&D results or on commercial production
according to the schedule prescribed in the licenses;
c) to share benefits with related parties, including the
distribution of intellectual property rights over invention
results based on their access to GR and related TK
copyrights; and d) other obligations specified in their
licenses and contracts on ABS to and from the use
of GRs.


The BL 2008 leaves space for parties to negotiate
further rights and obligations in their ABS licenses and
contracts. Therefore, the contents of licenses and ABS
contracts should be carefully considered in all cases.


Where contravention to the obligations relating to
GR licenses holders above occur, the Government
of Viet Nam will apply an incremental approach to
imposing sanctions. This has been done through the
administrative enforcement Decree No. 179/2013/ND-
CP dated 14 November 2013 which provides specific
provisions applicable to ABS violations. Its Article 46
establishes monetary penalties ranging from VND 5
million to VND 50 million. In this regard, offending parties
may be penalized depending on the circumstances of
the breach (See Fig.2 below):


Additional sanctions to the ones specified in Figure 2
below:
• Taking away the right of use of a GR (for which the


user had an access permit) from 6 to 12 months for
violations specified in Item 2 of this Article 46;


• Confiscating exhibits and means of administrative
violations for cases specified in Item 3 and 4 of this
Article 46.


Remedial measures are to withdraw results arising
from illegal activities of access to GR within the time
set by the competent national authorities included
in decisions on applied administrative sanctions for
violations.


As of yet, the above provisions of Decree No.
179/2013/ND-CP have not been applied in practice
due to the absence of specific regulations to identify
the violations. For example, the Decree does not
specify how to determine the level of a violation. These
are some of the issues that should be addressed by
the new Decree on ABS currently under development.


Although the Vietnamese Civil Code includes
enforcement procedures for cases of non-compliance




15vIeT Nam


with national laws, such provisions would not be
effective for ABS issues. This is partly because cases of
violations regarding GRs may involve extraterritoriality
issues that render the Vietnamese Civil Code not
enforceable (in other jurisdictions) in addition to the
possibility that the use of accessed GRs in Viet Nam
might not actually happen within Vietnamese territory.


Since the Protocol has no specific and strict
regulations on compliance, the national or regional
laws that implement it need to include more specific
and clear regulations to enforce the maximum
level of compliance possible. These implementing
regulations could include, provisions relating to foreign
laws or mechanisms of bilateral judicial support and


cooperation and measures of reciprocity. To this end,
the value of regional cooperation such as that of
ASEAN needs to be reassessed.


The Protocol further requires a series of national
institutions for monitoring the use of GRs,
enforcement, setting up check points, monitoring
the use of GRs, establishing national focal points on
ABS and establishing one or more national competent
agencies on ABS. Article 13.3 of the Protocol,
however, stipulates that a national focal point on ABS
can perform all the functions of a national competent
agency on ABS. Regrettably, the Vietnamese regime
that is supposed to ensure the implementation,
compliance and enforcement on ABS fails to do so.


Figure 2. Viet Nam ABS regulations offences and sanctions




Warning


• No notification to the state competent agencies on activities of exchange, transfer and
provision of GR for organizations and individuals to use for purposes of research, development
and commercial production


• No notification about the process and results of research, development and commercial
production, benefits arising from the development and commercial production as required


VND5,000,000
to 10,000,000


• Non- compliance with the provisions on a contract of access to GR and benefit sharing
• Non- compliance with the provisions on the control for the investigation & collection of GRs


by organizations and individuals with licenses for access to GRs
• Non-registration of a contract in writing for the ABS of GRs with organizations, households


and individuals assigned to manage such GRs
• Non- implementation of procedures for certification on access to GRs from ABS contracts by


the competent agencies
• Failure to report, as prescribed by the law, to the competent agencies on ther esults of


research, development and commercial production within the schedule stipulated in the
GR`s access license


• Use of a license of access to GR in appreciate contents and purposes


VND10,000,000
to 30,000,000


• Exchange, transfer and provision of GRs that the management assigned to other organizations
and individualsis not in line with the law


VND30,000,000
to 50,000,000



• Access to GR without permission from the State competent agencies




16 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


In addition, enforcement of the ABS rules is not taken
into consideration by the Regulations. Article 58.5
of the BL 2008 only states that “Disputes over or
complaints about access to GRs and benefit sharing
shall be settled under Vietnamese law and international
treaties to which the Socialist Republic of Viet Nam is
a party”. The Protocol, however, encourages providers
and users of GRs and TK to take the specific dispute
settlement provisions into account while negotiating
MAT provisions. Such provisions should include the
applicable settlement competence and resolution


process, the applicable law as well as alternative
resolution options such as a mediation and arbitration.
As discussed in this report, this provision is very
practical and needs to be specified in the contract.
The rights of the GRs suppliers in the country cannot
be guaranteed merely by the reference to other
general regulations such as Article 58.5 of the BL
2008. Adhering to the example of the Protocol, it
would be beneficial if national competent agencies,
while enacting legal texts, made specific mention to
dispute settlement arrangements, applicable law, as
well as alternative measures in dispute resolution.


UNCTAD/BCA/BIG/SECO Viet Nam Stakeholders Consultations on the Nagoya Protocol, National ABS regime and
BioTrade, June 2016: Source UNCTAD/BIG Viet Nam (2016)




17vIeT Nam


Iv. BIOTRaDe aND ITs
DevelOPmeNTs IN vIeT
Nam


UNCTAD’s BioTrade Initiative supports sustainable
development through trade and investment in
biological resources in line with the three objectives
of the Convention on Biological Diversity. Through the
establishment of partnerships with national, regional
and international programmes, it seeks to strengthen
the capacity of developing countries to enhance the
production of value-added products and services
derived from biodiversity for both domestic and
international markets. Since its launching in 1996 as
part of UNCTAD´s “BioTrade Initiative”, BioTrade has
demonstrated the importance of multiple forms of
conservation and sustainable use of biodiversity and
ecosystems-oriented businesses.


A. The BioTrade concepts and principles
Defined as “activities of collection, production,
transformation, and commercialization of goods and
services derived from native biodiversity, BioTrade
implements seven Principles, with their respective
Criteria of environmental, social and economic
sustainability that translate sustainable development
goals into practical actions. The BioTrade Principles
are the following:


Table 1. The BioTrade Principles and Criteria (Source:
UNCTAD, 2016)


Principle Criterion


Principle 1 Conservation of biodiversity


Principle 2 Sustainable use of biodiversity


Principle 3 Fair and equitable sharing of benefits
derived from the use of biodiversity


Principle 4 Socio-economic sustainability (productive,
financial and market management)


Principle 5 Compliance with national and international
regulations


Principle 6 Respect for the rights of actors involved in
BioTrade activities


Principle 7 Clarity about land tenure, use and access
to natural resources and knowledge


These BioTrade Principles and their respective
Criteria were adopted by the Initiative and the national


programmes after extensive consultations in 2004.
However, the Principles and Criteria have guided
the activities of the BioTrade Initiative, the BioTrade
national programmes and other related activities since
1999. In addition, BioTrade programmes and partners
are implementing activities following the certain
approaches:
• Value chain approach –refers to the coordinated


relationship established among all actors in the value
chain. The aim of these alliances is to strengthen
the value chain by sharing the associated risks and
benefits.


• Adaptive management approach – allows
for the implementation of corrective measures in
systems on an ongoing basis, based on a process
of continued monitoring.


• Ecosystem approach – based on a holistic vision
that integrates ecological and social issues, as well
as the interactions and processes that are involved
in a productive system.


• Sustainable livelihoods approach - strengthens
the human, social, physical, financial and natural
capital of people and communities to which
BioTrade contributes.


It is important to note that the set of BioTrade
Principles and Criteria adopted by UNCTAD and
national programmes in 200425 merely provides the
basis for the minimum criteria to be met. National
programmes may make the adaptations required
by their national contexts. In addition, the Union
for Ethical BioTrade (UEBT) developed, through a
global consultation process, a specific verification
framework to measure the compliance of its members
in the natural ingredients industry with the UNCTAD
BioTrade Principles and Criteria. Therefore, the
BioTrade Principles and Criteria should be applied at
both the institutional (i.e. national programmes) and
supply-chain actors’ level (i.e. business or producer
association).


Since its launching in 1996, the BioTrade Initiative
has benefited over 20 developing countries in
Africa, Asia (including Viet Nam) and Latin America.
BioTrade covers sectors such as personal care,
food, natural medicine, fashion, ornamental flora and
fauna, handicrafts, textiles and natural fibers, and
sustainable tourism (see Table 2). Sales revenues
of BioTrade beneficiary organizations, working with
small and medium-sized enterprises and multinational
companies, amounted to US$5.2 billion in 2012 –
compared with US$2.3 billion in 2010.




18 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


B. BioTrade in Viet Nam
Since 2003, stakeholders in Viet Nam have been
collaborating with BioTrade with a view to advance
the objectives and the policies created under the
CBD. Between 2003 and 2010, the BioTrade Initiative
provided technical assistance focusing on supporting
partners to develop specific sectors of biodiversity
products and services through a broad range of trade
promotion tools. In collaboration with the Swiss Import
Promotion Programme (SIPPO), the Programme


supported the value chains for food and pharmaceutical
ingredients. During the project period, the Programme
selected companies with export potential as well as
guided them on the development of specific work plans
to promote the exportation of their BioTrade products.
It also provided specific technical assistance to
selected companies including: 1) facilitation of market
access (e.g. trade fair participation, market studies,
direct contacts with importers); 2) advice on trade-
related legal issues (e.g. intellectual property rights and
geographical indications); 3) advice on sustainable use


Overview of the BioTrade Initiative


The BioTrade Initiative has been implemented in three phases:


1. The first phase’s implementation started in July 2003. It facilitated the sustainable trade in biodiver-
sity products and services through innovative collaborative arrangements and supported developing
countries in accessing new markets, thereby diversifying their production base in a sustainable manner.


2. The second phase of implementation commenced in 2009 and was focused on creating a policy
environment that promoted trade and investment through sustainable use. The Initiative helped create
opportunities leading to jobs, incomes, export diversification and rural development for populations,
small and medium enterprises and multinational organizations engaged in the sector. Consequently, it
enhanced the livelihoods of rural and local communities in developing countries by generating not only
economic but also environmental and social benefits.


3. The third and current phase implementation started in July 2015. The overall objective focuses on main-
streaming BioTrade in relevant multilateral, regional and national processes, as well as on strengthening
the policy and regulatory environment of BioTrade sectors. In this regard, the Initiative, in parallel to
mainstreaming and to its global implementation activities, is focusing on tailor-made technical advice
on issues such as:


• Compiling and analyzing existing Non-Tariff Measures (NTMs) for BioTrade sectors and products in
key import and export markets;


• Assessing the applicability and potential implementation of a “track and trace” or traceability systems
for targeted CITES species; and


• Mapping and providing recommendations for a BioTrade-friendly implementation of the Nagoya
Protocol


Table 2. BioTrade sectors prioritized by countries and partners in Africa, Asia and Latin America (Source: UNCTAD, 2016)


Sector Type of product
Personal care Essential oils, natural dyes, soaps, cream and butters, cosmetics, etc.
Pharmaceutical (Phyto-pharma) Extracts, capsules and infusions from medicinal plants, etc.
Food fruits pulps, juices, jams, cookies and sauces, spices, nuts, tuberous snacks


food supplements, meat from caiman and fish, etc.
Fashion Skin and belts, purses from Caiman yacare, etc.
Ornamental flora and fauna Heliconias, orchids, butterflies, etc.
Handicrafts Jewelry, decoration objects based on native species, garments, etc.
Textiles and natural fibers Furniture and decoration objects based on natural fibers, purses, shoes, etc.
Sustainable tourism Ecotourism, nature-based tourism, community-based tourism, etc.




19vIeT Nam


practices (e.g. sustainable use protocols, management
plans, certification schemes); and 4) providing advice
on product development and quality improvement (e.g.
R&D partnerships, quality systems, among others).


The BioTrade Programme likewise established
partnerships with national organisations and
institutions in Viet Nam with the aim of enhancing
the capacity of companies to produce value-added
products and services derived from biodiversity as
well as enable them to sustainably manage the natural
resources these products are derived from.


Finally, in collaboration with national counterparts
(such as government ministries, non-governmental
organizations, trade promotion organizations, national
service providers), the Programme carried out a sector
assessment for food and pharmaceutical ingredients.
This included a thorough identification of opportunities,
barriers, and existing institutional capacities. Based
on the sector assessment, national partners designed
a sector strategy for the development of the trade
potential of food and pharmaceutical ingredients.


From 2012 to 2014, The Swiss government, through
the State Secretariats of Economic Affairs (SECO)
supported Viet Nam through “The development of


value chains for natural ingredient products” project
that was implemented by Helvetas with a budget
of US$ 1,000,000. Together with the implementing
partner, the National Institution of Medicinal Materials
(NIMM), a research institute from Ministry of Health, the
project objective was to help establish the international
recognition of Viet Nam as a supplier of choice for
biodiversity derived natural ingredient products –
sourced, processed and traded in compliance with the
CBD objectives and BioTrade Principles and Criteria.
Towards this end, this project:
1. Initiated a partnership with a group of interested


and innovative phyto-pharmaceutical companies
committed to high quality products to support
them to take up the BioTrade approach. The project
intervention implemented through companies along
five natural ingredient value chains to the farmers
and collectors in the communities.


2. Encouraged the value chain actors (e.g. from
farmers, collectors to company staff) to achieve
confidence in applying sustainable standards (e.g.:
Ethical BioTrade, GACP) to their sourcing practices.


3. Established the verification system for Ethical
BioTrade standard in Viet Nam. QUACERT,
a government certification body which is


Photo 5: BioTrade Trade Fair. Source: Son Ta Minh / BIG Viet Nam (2016)




20 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


internationally accredited under MOST, was
accepted and appointed as Ethical BioTrade
standard audito. From the date of its accreditation,
three organizations became UEBT members,
including two trading members and one affiliated
member.


4. Audited and certified compliance of BioTrade
value chains with GACP standard by MOH.
The BioTrade project collaborated with MOH’s
institutions to facilitate and support the GACP
standard implementation. The value chain service


providers were also identified and their capacities
were boosted by encouraging active participation
in project activities. During this period, there were
four over five BioTrade value chains audited and
certified GACP by MOH and fifteen other BioTrade
value chains plus other companies which were
also audited and certified. After a long delay (from
2009), the Circular 14/2009/TT-BYT relating to
GACP implementation in phyto-pharmaceutical
sectors was finally disseminated.


5. Raised awareness of ABS for natural ingredient


Table 3: Partnerships and actors involved in BioTrade activities


Natural Ingredient Type of Source Product Effect Location
Processing
Company


Ampelopsis Wild Collection Ampelop Treatment of Gastric
Ulcer


Muong Hum, Bat
Xat, Lao Cai


Traphaco Co. Jsc
traphaco.com.vn


Polysias Fructicosa Cultivation Cebration Treatment of insufficient
cerebral circulation


Hai Hau and Nghia
Hung, Namh Dinh


Traphaco Co. Jsc
traphaco.com.vn


Gemnema Sylvestre Cultivation Diabetna Treatment of Diabetes Hai Loc, Hai Hau,
Nam Dinh


Nam Duoc Co. Jsc.
namduoc.vn


Phyllantus amarus Cultivation Phyllantus
herbal tea


Improve symptoms
of hepatitis and liver
function


Tuy Hoa, Phu Yen Vietroselle Co. Ltd.
vietroselle.com


Plectranthus
amboinicus


Cultivation Eugica Lozenge Improve cough and
upper respiratory
disorders


Tri Ton, An Giang DHG Nature Co. Ltd.
dhgpharma.com.vn


Source: Ta Minh Son (2016)


Figure 3. Results chain for “Scaling up of Ethical BioTrade activities within phyto-pharmaceutical sector in Viet Nam’”
Project / Source: BIG Viet Nam (2016)




21vIeT Nam


value chains stakeholders and partners in Viet Nam
via the project partnership between BioTrade and
BCA – MONRE. A set of an ABS training document
and ABS training manual was developed in 2014
back to back with an ABS training workshop
organized by the BioTrade project with ABS experts
from UEBT. At the workshop, it emerged that the
natural ingredient value chain stakeholders have
had indirect knowledge about BioTrade through
existing GACP and ABS approaches in Viet Nam.


6. Organized workshops to provide fundamental
understanding of the BioTrade Concept and
Principles and Criteria and its practical implications
for actors in the different value chains. The
workshop topics included: Good Agricultural and
Wild Collection Practice of Medicinal and Aromatic
(Culinary) plants of World Health Organization
(GACP- WHO standard) ABS for the value chain
stakeholders and partners.


7. Participated in various project activities of relevant
government institutions like the Ministry of Health
(MOH); the Ministry of Industry and Trade (MOIT);
the Ministry of Natural Resources and Environment
(MONRE), and the Ministry of Agriculture and Rural
Development (MARD); and


8. Created the BioTrade Interest Group of Viet Nam
(BIG Viet Nam). BIG Viet Nam was established based
on the close collaboration between HELVETAS
Viet Nam and Viet Nam Material Medical Society
(VIMAMES) for a long term vision of developing
BioTrade activities in Viet Nam. BIG Viet Nam acts
as the private and technical BioTrade focal point, to
attract and support companies to take up BioTrade
activities in Viet Nam. 26


9. Five BioTrade value chains under the project of
“The development of value chains for natural
ingredient products” under the support of SECO
and implemented by Helvetas in Viet Nam.


Since mid-2015 and throughout the BTFP III project
duration, UNCTAD has continued to support BioTrade
activities in Viet Nam. It has done so by providing
targeted technical assistance in key areas of interest
to Viet Nam, mainly: (i) Identification and mapping
of relevant NTMs that hinder the export of BioTrade
products as well as biodiversity-based ones; (ii)
development of a traceability system in the Mekong
region for CITES-listed non-timber plant species (to
be implemented in Viet Nam); and (iii) identification
and enhancement of the understanding on the


Photo 6. Hai Toan farmer group meeting / Source: BIG Viet Nam (2016)




22 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


intersection between ABS under the Nagoya Protocol
and BioTrade and how this affects Viet Nam’s ABS
and BioTrade practices.


The Initiative also works together with the Vietnamese
Government and key BioTrade partners to provide
solutions to the identified challenges above, as well
as to determine the next steps and action plan to
be followed, including an assessment of the current
situation of ABS and BioTrade in Viet Nam, raising
awareness on the interlinkages between the Nagoya
Protocol, ABS and BioTrade in the country and
provision of clear recommendations for a BioTrade-
friendly implementation of the Nagoya Protocol and
ABS systems in Viet Nam.


C. Steps ahead
From 2016 to 2020, the European Commission
has set up a EUR 2,063,000 fund for the project,
“Scaling up of Ethical BioTrade activities within phyto-
pharmaceutical sector in Viet Nam”. The project is
currently being implemented by HELVETAS Viet Nam
and the Center for Rural Economic Development
(CRED). Its objective is to establish Viet Nam as
an internationally recognized supplier of natural
ingredients for phyto-pharmaceutical and cosmetic
industries that are sourced and processed according
to the BioTrade Principles and Criteria vis-a-vis the
Ethical BioTrade standards. In addition, this project
will include training activities on ABS mechanisms for
all actors in the value chain.


Through the project (which was launched on 8
June 2016), around twelve Vietnamese phyto-
pharmaceutical enterprises are expected to supply
national and international markets with ethical
BioTrade products, expand their BioTrade business,
reduce their ecological footprint and improve the
conditions of the workplace. More than 5,000 small
holder farmers are also expected to increase their
livelihoods through ethical BioTrade value chains
and start to steadily supply their produce to ethical
BioTrade enterprises. Also, around tens of millions of
domestic consumers are also expected to be familiar
with the BioTrade concept and benefits, therefore,
increasing the demand for BioTrade products in
Viet Nam. These activities, in essence, will build a
conducive environment to create an enabling policy
and regulatory framework for BioTrade initiatives that
will stimulate the growth of the phyto-pharmaceutical
sector in Viet Nam sustainably.


Further to the above, SECO is also supporting the
project, “Development of BioTrade activities within
the Natural ingredient sector in Viet Nam”. This is a
regional project which includes Viet Nam, Laos and
Myanmar. The initial results of the previous project
phase in Viet Nam is proposed to be disseminated and
replicated in other ASEAN countries for the purpose
of ascertaining the impacts of BioTrade in the natural
ingredient sector regionally. HELVETAS Viet Nam has
cooperated with BIG Viet Nam to develop and submit
a proposal to SECO for the project’s implementation
and launching in the second half of 2016.


D. The Perception of BioTrade in
Viet Nam


In a recent review of BioTrade practices in Viet Nam,
it has been found that the government agencies,
particularly the public authorities (who have direct
mandate to BioTrade value-chain activities), were
found to have insufficient awareness of BioTrade
despite its ongoing activities in the country. The
results of this institutional assessment for BioTrade
Viet Nam showed the complexity of the management
of natural ingredients in the country. There has been
no government institution officially appointed as a
focal point for BioTrade activities in Viet Nam so far,
hence the inter-ministries’ coordination is considered
relatively weak in supporting BioTrade activities. As a
result, the BioTrade Initiative had to collaborate with
individual ministries for particular BioTrade-related
issues. Representatives from other ministries are
invited to participate in relevant project activities to
facilitate the policy dialogues - however, preliminary
interest to create a national programme in the
government remains uncertain.


Regarding the actors of five selected value chains,
it was found that there were not many opportunities
for BioTrade actors to communicate directly to
consumers. Ideally, the national project’s objective
was to raise awareness of the target group within the
project intervention firstly, because, the concepts of
BioTrade and relevant biodiversity definition are quite
new and complicated for stakeholders in Vietnam.
Once the project stakeholders and partners have a
working knowledge about and interest in the BioTrade
concepts as well as the related benefits, synergies
with other stakeholders, especially with BioTrade
companies whose key role is to communicate
BioTrade concepts to consumers - direct links to the
consumer could be achieved.




23vIeT Nam


E. BioTrade in numbers
BioTrade in Viet Nam focuses on value chains
for the collection, cultivation, processing and
commercialization of medicinal and aromatic plants.
Even though it started with only four pioneer phyto –
pharmaceutical companies, their sales contribution
in the domestic herbal medicines market is 80
per cent. The sales of BioTrade in Viet Nam have
been estimated at US$ 100 million for both herbal
medicines and dietary supplements. The majority of
products are related to medicinal and aromatic plant
formulations, functional foods and derived products.
Most of the sales take place in the domestic market
but exports are slowly increasing. Currently, the
domestic market shows promising growth rates of 30
per cent annually in medicinal plants which could be
a boost for BioTrade. Nevertheless, and considering
such a great potential for expansion, there are still
many phyto-pharmaceutical companies that are only
willing to focus on the domestic competition rather
than set their eyes on the international markets.


BioTrade companies see benefits arising from BioTrade
not only in terms of sales but also in terms of better
preparation for the international competition within
domestic market, while foreign companies can easily
access domestic market as free trade agreements
come into force. Their goodwill also increases while
they invest more into conservation and engagement
with the local communities. For example, there is a
10:1 positive price ratio when producing medicinal
plants vis-a-vis rice in the countryside in Viet Nam.
This is an interesting incentive for farmers to engage
in BioTrade activities. In addition, cooperative groups
of farmers (whose incomes increased around 10 per
cent when they participated in the project) were set
up. The scientific development of medicinal plants is
attracting the interest of farmers, collectors and local
authorities because not only they are increasingly
becoming more profitable, they are also useful to
improve the livelihoods of the communities and aid in
climate change adaptation.


F. BioTrade challenges and additional
actions in Viet Nam


Illegal trade of wild collected medicinal plants to China
is still popular in Viet Nam and is the main reason
for species over-exploitation. Together with raising
awareness, providing local communities alternatives
for livelihood plays an important role. Support for local


collectors to develop ex-situ cultivation of medicinal
plants by transferring relevant research results in
accordance to Ethical BioTrade standards, provision
of technical support as well as facilitation of business
linkage with private sector have been considered as
effective and sustainable interventions to relieve the
pressure of overexploitation for the species in the
wild.27


Raising BioTrade awareness of consumers and
government authorities still is the most challenging
task in Viet Nam. Working with government authorities
for a BioTrade- friendly policy and regulatory
environment, especially in the context of no clear
ministerial mandate for overall natural ingredient
development with weak inter-ministry coordination
requires a long-term intervention. Nonetheless, the
approach based on cooperation with relevant local
authorities for particular value chain development
still is an effective and efficient intervention, besides
facilitating and supporting inter-ministerial cooperation
in central level.


While the business context is changing very quickly,
most BioTrade companies can expect more on the
synergy between companies, government authorities
and BioTrade projects to raise the awareness
of consumers about BioTrade and its benefits -
eventually, increasing the demand for BioTrade
products. This response from consumers will help to
motivate BioTrade companies to commit to adopting
their activities within the concepts and principles of
BioTrade.


There is a lack of market information for value chain
actors in both domestic and international markets.
The scope of government trade promotion agency
(VIETRADE) is broad and they still do not have any
particular strategy for exporting BioTrade products.
There is an emerging need for a competent BioTrade
focal point to closely collaborate with VIETRADE to
include BioTrade products become a commodity in the
National Export Strategy. One such possibility is the
private and technical BioTrade focal point in Viet Nam
(BIG Viet Nam) which is a “newborn” institution with
potential capacity and ambitious objectives. However,
it needs more time for its capacity building to provide
effective and efficient services to BioTrade value
chains actors. Meanwhile, a governmental BioTrade
focal point is yet to be discussed and appointed, so
far, Biodiversity Conservation Agency (VEA, MONRE)
has played role as a contact point and connecting
BioTrade issues into ABS regime revision process.




24 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


Research centres, ex-situ collections and universities
point out that BioTrade should not only look at plants
but also animals, insects and microorganisms because
there is a huge potential in these areas. The MOIT


also indicated that BioTrade should not only look at
“native” species but also “domesticated” varieties that
have developed particular features. Viet Nam is also
developing a national database for GRs.28


Photo credit: ©Fotolia: Banana Republic




25vIeT Nam


v. aCCess aND BeNefIT
shaRINg RUles aND The
BIOTRaDe aPPROaCh: aN
OveRvIew


A. BioTrade and Viet Nam’s laws on
biodiversity


The BL 2008 does not specifically refer to BioTrade
but rather is a set of general principles on access and
benefit-sharing regimes. It serves as a framework for
further regulations to determine its applicability to
particular sectors and circumstances. As specific ABS
provisions under the Regulations have not yet been
enacted, it provides opportunities for amendment
and/or considerations for supplementary laws and
regulations. Currently, the Government of Viet Nam,
together with UNCTAD and key BioTrade actors in the
country are discussing the development of a new ABS
implementing decree that would take into account the
unique role of BioTrade in the application of the BL 2008
and the ABS rules under it as enshrined in the CBD. In
addition, a circular is under development which would
provide further details on the implementation of ABS
provisions for BioTrade practitioners in the country.


When comparing national ABS provisions and
BioTrade Principles and Criteria related to ABS, this
report ascertains that:


Scope


Vietnamese ABS laws include provisions on benefit
sharing but are narrower in scope than those in
BioTrade`s Criteria. Under Criterion 3.1, BioTrade
requires benefit sharing that involves, where possible,
actors along the whole value chain. In contrast, under
the national ABS laws, the sharing of benefits obtained
from access to GRs takes place as provided for in
the contract negotiated, mutually agreed and signed
between the parties.29


Access


The legal provisions on access to GRs of Viet Nam
correspond to the provisions in BioTrade’s Principle
7, particularly Criteria 7.2 and 7.3 on access. Both
criteria require PIC based on CBD provisions. The BL
2008 was also developed taking this principle of the
CBD into account. Vietnamese BioTrade companies
will thus be at an advantage for implementing such
provisions in the law. For Criterion 7.3 on PIC for TK,


there is a lack of clear provisions on TK in the national
laws. The regulation of ABS provision on TK in this
respect, will be a big challenge for Viet Nam.


Benefit-sharing


The requirements of sharing benefits under explicit
conditions of BioTrade`s Criterion 3.2 are not
mentioned in Vietnamese ABS laws. It is the same
situation with Criterion 3.3 of BioTrade, which requires
that “information and knowledge of target markets are
made available and shared among actors”. Although
article 19 of the Decree No. 65/2010/ND-CP includes
a list of benefits that should be shared, it does not
include the key point of “information and knowledge
of target markets” as foreseen in BioTrade`s Criterion
3.2.


In this regard, and although it is a voluntary regime,
BioTrade has been, the only vehicle for effective benefit
sharing from sustainable use of biodiversity in Viet
Nam so far. This state of affairs should be positively
considered by national authorities and be reflected in
the ABS regulations and practices. At the moment,
this benefit is only evident when looking at sales and
impacts of BioTrade in the creation of value chains.


B. Synergies, implementation and
lessons learned


There have always been potential links or overlaps in
scope between the Nagoya ABS requirements and
BioTrade Principles and Criteria, particularly: Principle
3 on benefit sharing, Principle 5 on compliance and
Principle 7 on clarity about the rights of the parties.
In essence, compliant BioTrade companies, are
already partly abiding by the key Nagoya Protocol
principles and provisions. Additionally, if organizations/
companies comply with ABS on a regular basis,
they are able to satisfy at least two basic BioTrade
Principles, mainly Principles 3 and 7. The intersection
possibilities between ABS and BioTrade can be
described through following figure:


BioTrade activities will almost certainly fall under the
scope of the Nagoya Protocol and under national ABS
frameworks when involving access and/or use of GRs,
their biochemical and any associated TK.


Some examples of BioTrade activities could potentially
fall under the scope of the Nagoya Protocol include.
1. Accessing and undertaking R&D on extracts of


medicinal plants, or identifying an active compound
from a plant or microorganism;




26 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


Table 4. ABS provisions vis-a-vis BioTrade Principles and Criteria (Source: UNCTAD, 2016)


Principles Criterion


3. BioTrade activities which involve the
commercialization of genetic resources
are linked to the benefit sharing objective
of the CBD. Equitable benefit sharing also
arises in the context of sustainable use of
biodiversity. Benefit-sharing is therefore
also important in activities dealing with
biological resources, which form the vast
majority of BioTrade activities.


3.1 The organization should interact and involve actors along the whole value chain,
where possible. This reduces asymmetries and ensures negotiation of fair and
equitable monetary and non-monetary benefits, especially by weakest links
along the value chain.


3.2 Income should be generated along the value chain, by contributing to the
position of value-added products in the market, under transparent conditions,
as a condition for benefit sharing.


3.3 Information and knowledge of target markets should be made available and
shared among actors, to enable access to market opportunities.


5. Compliance with national and international
regulations
Compliance with relevant legislation and
regulations is fundamental for the legal
legitimacy of an organization and its efforts
to obtain market access for its products.
There are two levels of implementation for
this principle:


(i) At the international level, where
conventions and agreements are, for
the most part, guides to principles
and good practices. These should
be observed and applied wherever
possible; and


(ii) At the regional and national levels,
where there are existing regulations
to be complied with


5.1 The organization should be aware of and comply with national and local
legislation related to the sustainable use and trade of products and services
derived from biodiversity (wildlife management, labour regulations, etc.)
Every national regulation, including labour regulations, applicable to BioTrade
projects must be strictly complied with.


5.2 The organization should be aware of and comply with international and regional
legislation related to sustainable use and the trade of products and services
derived from biodiversity
This includes, but is not limited to, the Convention on Biological Diversity, the
Convention on International Trade in Endangered Species of Wild Fauna and
Flora, the conventions of the International Labour Organization, the rules of the
World Trade Organization and the Andean Community, and other regulations.


7. Clarity about rights of access is very
important. Only then can long-term
investments be made or corresponding
management measures be implemented
to ensure sustainability. At the same
time, clarity on this issue means that the
responsibilities of each actor can be clearly
established.


7.2 Access to biological and genetic resources for sustainable use should be
subject to prior informed consent. The Convention on Biological Diversity
requires access and distribution of benefits in relation to genetic resources.
In such cases, the consent of all relevant national authorities in the provider
country should be obtained. These cases are normally regulated by national
legislation, in line with the Convention on Biological Diversity.


7.3 Access to traditional knowledge should be granted only where prior informed
consent has been verified. Where traditional knowledge is used, the
organization should follow all regulations and their established procedures to
ensure that the rights of the actors providing this knowledge are recognized,
including the right to prior informed consent of all relevant stakeholders, such
as indigenous and local communities, as appropriate and subject to domestic
law. Traditional knowledge should be valued and rewarded in the appropriate
manner.





27vIeT Nam


2. Obtaining TK from an indigenous community and
using it to orient and guide initial phases of R&D
processes (e.g. regarding use, characteristics, and
dosages of medicinal plants). For example, the
case of Traphaco Sapa;31


3. Undertaking R&D on specific, isolated compounds
and natural extracts of plants;


4. Undertaking research on different extraction
processes regarding a plant extract, leading to
potential compositional variations;


5. Plant or animal breeding using biotechnology;
6. Any biotechnology process which uses enzymes to


lyse the plant cells and allow separating hydrophilic
and lipophilic fractions from kernels, leaves, seeds;


7. The action of specific enzymes (e.g. elongase,
desaturase) that will transform the naturally
occurring composition of a vegetable oil to give a
different fatty acid profile;


8. Insect reproduction or genetic modification for pest
control;


9. Extraction processes and analysis of compositions;
10. Derivative: Triglycerides (vegetable oils such as


Argan oil, Marula oil, etc.); Phospholipids of cell
membranes (fractions of vegetable oils); Saps (Aloe
Vera juice for example); Secondary metabolites
(e.g. Polyphenols).32


C. Differentiating between ABS and
BioTrade


The scope of BioTrade is larger than that of the Nagoya
Protocol. The Nagoya Protocol contains references
to R&D on GRs, as well as on the ‘biochemical’
composition of GRs. Some national and regional
implementing regulations also include in their scope
‘derivatives’. BioTrade, however, covers “production
of value-added goods and services derived from
biodiversity”. That means that the scope of BioTrade
includes not only genetic resources and its derivatives
but also species and ecosystem services.


Figure 4. The BioTrade Principles and Criteria and the ABS Standards 30


Source: Oliva MJ (2012). Equitable Sharing of Benefits in Ethical BioTrade





















BioTrade


Biodiversity-based
activities conducted under
criteria of environmental,
social and economic
sustainability


ABS


Applicable to
biodiversity-based


activities that involve
the utilization (R&D +
commercialisation) of


genetic resources


Biodiverity-based activities
Collection, production , transformation, and


commercialization of good and services derived from
biodiversity




28 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


The scope of ABS under the BL 2008 of Viet Nam
also has a broader scope than the Nagoya Protocol,
since its definition of GR includes “all species and
genetic specimens in nature, conservation areas,
biodiversity conservation facilities and scientific
research and technological development institutions
and in nature”.33This is quite broad in scope and
includes biological resources and genetic resources.
The Vietnamese Law, however, does not contain
a definition of “utilization” of GR or any reference to
“derivatives”.


Regarding its nature, BioTrade is a voluntary system,
while ABS is a mandatory one. Companies have the
right to choose to become a BioTrade member and/
or apply its principles. There are still many companies,
projects that have “activities of collection/production,
transformation, and commercialization of goods
and services derived from native biodiversity” that
do not satisfy the “criteria of environmental, social
and economic sustainability” or do not register to be
recognized or certified by Bio Trade programmes.
However, when the company has activities that fall
into ABS rules (access to GR and its utilization and
biochemical through R&D or commercialization
products and TK), they have responsibilities/liabilities
to comply with ABS regulations or international and
national laws obliging them to comply with ABS
regimes.


Regarding subjects involved, Bio Trade includes
various actors of value chain, including indigenous
people, local communities, farmers, raw material
providers, intermediaries, transporter, researchers,
professors, and traders, among others. However,
ABS provisions under the Nagoya Protocol mentions
basically: providers, users, indigenous and local
communities and national competent authorities.


D. Implementing the BioTrade Principles
and the Vietnamese ABS law


In practice, there are some lessons to be learned from
the implementation of the BioTrade project in Viet
Nam.


The implementation of BioTrade`s ABS-related
principles and criteria is voluntary. However, Principle 3
of BioTrade on benefit sharing has been continuously
applied in Viet Nam. The benefits are shared along the
whole value chain, in consideration of the Criteria set
up under Principle 3, which is arguably much wider in
scope than provisions on benefit sharing under the BL


2008 that only covers access to GRs and TK under
ABS agreements.


In a stark contrast, Principle 7 of BioTrade on clarity
about rights of access could not be applied. All the
procedures for obtaining permit of access to GR
following the Regulations were omitted. This proved to
be a disabling circumstance for the BioTrade project in
Vietnam (implemented by Helvetas) the reasons were
as follows:
- Before 2014, Vietnamese ABS laws on access did


not meet the first requirement of “clarity” under the
Principle 7. There was uncertainty among BioTrade
practitioners relating to BL 2008 itself and found
it challenging if not impossible to comply with
BioTrade`s Principle 7 relating to ABS;


- There were no legal requirements as there was no
regulation on TK protection;


- BioTrade’s Criteria 7.2, which requires PIC for access
to TK, could not be verified either. One example is
the case of Traphaco SaPa, a medicinal herb whose
associated TK was the basis of an R&D of a new
natural ingredient for gastric ulcer and stomach
ache. It could have been a good opportunity for
the knowledge holders to benefit from the use
of their TK, however, it was considered that the
relevant TK already exists in the public domain of
Viet Nam, and so identification of specific rights
owners and potential beneficiaries proved difficult.
The issue was made even more complicated by the
fact that there was no management database for
GRs and TK that made it easier or even possible to
identify the right holders (individuals, communities,
national or public) existed. There was no legal
basis for pursuing PIC for access to TK associated
with GRs and the Regulations did not have any
provision on procedures for PIC for access to TK
associated with GRs.


Moreover, the Regulations were all promulgated
before the entry into force of the Nagoya Protocol, as
well as before Viet Nam became a party to it. As of yet,
no revision to adapt to the provisions of the Nagoya
Protocol has taken place, let alone proposed.


Consequently, there is an urgent need to improve legal
provisions on access to GRS with explicit procedures
for PIC and to supplement these to obtain PIC for
access to TK associated with GRs to ensure “clarity”
(as foreseen, for example, under BioTrade’s Principle
7), as well as the ‘transparency’ and ‘certainty’
provisions foreseen both in BioTrade`s Principle 7 and
in the Nagoya Protocol.




29vIeT Nam


The companies under the BioTrade Project should also
pay attention to comply with the PIC requirements of
Principle 7 for access to GRs or TK if they proceed
with BioTrade activities and such fall into the scope of
ABS rules. Such requirements should be implemented
particularly if the companies or entities are or have
become involved in activities of conducting R&D on
the genetic and/or biochemical composition of GRs,
including through the application of biotechnology and
commercialization of their products and TK. However,
ABS regulations do not apply PIC for activities of
trade in commodities or the direct sale of biological
resources (e.g. dried fruits or seeds for human
consumption) or even certain processed foods, (e.g.
bottled juices, food preparations), hence, PIC is not
required in these cases.


For selected companies under the BioTrade project
implemented by Helvetas between 2012 and 2014,
(these companies have already passed through
the stages of R&D activities and are carrying out
commercialization of their products), there should
have adaptive and facilitated procedures for them
to comply with PIC to obtain ABS license to access.
Examples under this Helvetas experience are, the case
of Gymnemasylvestre by NamDuoc company, wherein
the stages of R&D were undertaken and the product
(Diabetna) was introduced and commercialized;34or
the TK case of Ampelopsis by Traphaco company,35


and the case of Polysias  (product of Traphaco’s
Cebraton).36


A particularly remarkable product from the activities
of the BioTrade project of Helvetas in collaboration
with the Biodiversity Conservation Agency of MONRE
is the manual for guiding ABS implementation in
recognition of the importance of ABS in BioTrade
projects in Viet Nam published at the end of 2014.
The document provides basic knowledge of ABS for
trainers and trainees involved in BioTrade activities. It
is also addressed to officials of competent authorities,
GR suppliers, communities, and GRs users, among
others. The guide is comprised of three main chapters
that provide information on the biodiversity of Viet
Nam, the interpretation of ABS-related concepts, an
analysis and description of the ABS regime of Viet Nam,
as well as the role of different parties regarding ABS-
related laws and provisions. The guide also includes
a section of ‘Questions and Answers’ that covers
frequent questions that arise from the ABS practice
in Viet Nam in addition to its summary and analysis of
some typical ABS cases in the country in recent years.
These cases were investigated through many different
channels and sources, including through surveys
from field trips and are reflective of the ABS practice
in Viet Nam, the development trends, lessons to be
learned, as well as models that could be considered
for mainstreaming purposes.




30 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


vI. POlICy aND RegUlaTORy
OPTIONs aND
ReCOmmeNDaTIONs


Despite the apparent challenges relating to
implementing ABS regimes complemented by
BioTrade activities in the current administrative and
legislative climate of Viet Nam, it is also self-evident
that the country has a bursting potential for promoting
ABS-BioTrade linked undertakings. Surely, issues
such as lack of resources and capacities, as well as
struggles from institutional mechanisms and policies
seem to be obvious deterrents for the advancement
of the CBD objectives. Notwithstanding, the robust
synergies and mutual supportiveness between
BioTrade and ABS rules on the back of a mega-
diverse biodiversity make Viet Nam a rising key player
in the promotion of ABS in Asia and beyond.


To achieve that, this report presents several options
and recommendations for the consideration of
policymakers, regulators as well as the various
stakeholders in Viet Nam:


Improving the regulatory framework


(i) Integrating BioTrade provisions into ABS
Regulations:


The Vietnamese Government is planning to revise its
BL 2008. This will be a good opportunity to amend
the provisions on ABS to meet the legal certainty,
transparency and clarity requirements of the Nagoya
Protocol and the demands from the actual practice
of ABS activities in Viet Nam, particularly regarding
BioTrade activities. This legislative amendment would,
in BioTrade perspective, ensure clarity and certainty of
scope and implementation and enhance compliance
and enforcement through checkpoints. The regime
for benefit sharing should be clearer and easier to
comply with as well as provide clarity on the object
and scope and define the type of use (e.g. definition
of R&D through biotechnology and type of R&D) that
triggers ABS consideration. This amendment should
not be merely a general declaration of complying with
the Protocol rules but should instead be concretized
into practical implementation guidelines or provisions.


ABS focal points and competent authorities should
be ready to adapt to the changes brought forth by
the Protocol and to understand and recognize the
contribution of BioTrade to the implementation of
ABS provisions through its Principles and Criteria.


In addition, the assignments demarcation between
ministries should be clarified to ensure an effective
coordination amongst them and between other key
players of BioTrade.


The amendment on provisions for MAT should be
based on the guidance of the Nagoya Protocol and
drafted to ensure its practical feasibility. The necessary
tools and methods for compliance and enforcement
should be set up, including on the internationally
recognized certificate of compliance, check points
and sanctions. The CBD’s Clearing House Mechanism
should be notified of all the relevant information on the
ABS systems, regulations and permits.


Eventually, the creation of a sound and effective ABS
legal framework will also facilitate the implementation
of BioTrade Principles and Criteria.


(ii) Integrating BioTrade provisions into a new
Decree on ABS


In parallel with the development of this report, the
BCA and UNCTAD are working together to draft the
BioTrade-related provisions under the new Decree
on ABS that the Government of Viet Nam is currently
developing. BioTrade has so far been included in the
draft of the new Decree and the salient provisions are
as follows:
1. Definition of BioTrade under the Article 3 -


Interpretation of terms: “BioTrade means activities
of collection, production, transformation, and
commercialization of goods and services derived
from native biodiversity under the criteria of
environmental, social and economic sustainability.”


2. A simplified procedure for access to genetic
resources and traditional knowledge in BioTrade
cases:


“Access to genetic resources, biochemical and
derivatives undertaken by the companies under the
Biotrade Programmes, which satisfy its principles
and criteria, as well as the conditions of sustainable
BioTrade”.
“The time limit to assess the dossiers of application
under the above Clause1 of this Article, is forty-five
(45) working days from the day of receiving the suf-
ficient dossier.”


It should be noted that the period of assessment
foreseen for other dossiers of application is much
longer. In this regard, this time frame (45 working
days) is half of the time required for dossiers filed for
commercial applications of non-BioTrade companies
or institutions (which is 90 working days). In addition,




31vIeT Nam


relevant ministries have been mandated to mitigate
procedural and administrative issues when dealing
with BioTrade applications in the following manner:


“The Ministry of Natural Resources and Environment
takes prime responsibility with coordination of
Ministry of Industry and Trade, Ministry of Health
to provide in detail the principles, criteria and con-
ditions for sustainable BioTrade and other related
provisions.”


Requiring users to share 30 per cent of benefits, as
stipulated in the current ABS national regulation, is not
feasible. To this end, the new Decree should provide
for a minimum and mandatory share of 1 per cent of
the benefits to be shared, but leave the actual exact
percentage to be negotiated between the actors
during the MAT. Therefore, the Decree would demand
a minimum of benefits to be shared, but not cap the
maximum and leave it to the parties to negotiate.


Furthermore, the benefit shared through the application
of the BioTrade principles should be recognized within
the ABS system and the competent authorities. This
should include the non-monetary benefits shared
under BioTrade, especially in those cases where there
is no commercialization involved or the stage of the
production process is not yet final.


(iii) Circular or detailed guidance on the
implementation of ABS in BioTrade
projects and activities.


The provisions of the draft Decree mentioned above
open an opportunity to develop a Circular to provide
more in-detail guidance for the implementation of
ABS in BioTrade projects and activities. The following
issues should be considered during the development
and promulgation of the Circular:
• Clarification of the scope of the regulation for


BioTrade projects, for example, more detailed
definitions of key terms such as utilization of GRs,
R&D and derivatives;


• Incentives to facilitate the compliance with ABS
rules and regulations for BioTrade projects and
businesses;


• Detailed and simplified administrative procedures
for BioTrade projects as mentioned by the Decree
on ABS, including checklists of activities and
documents.


• Clarification of rights and obligations of the
respective actors involved in ABS in BioTrade
projects and activities;


• Recognition of the type of PIC and benefit sharing


obtained under BioTrade as part of or as a
substitute for PIC and benefit sharing under ABS
rules and regulations;


• Institutional organization to implement ABS in
BioTrade projects and businesses and assignment
of a national focal point for BioTrade within the
Government, for example, BCA under VEA of
MONRE or through a public-private partnership
model;


• Introduction of a “regularization or legal restoration”
clause that would allow BioTrade companies that
already had accessed GRs, biochemical and/
or derivatives to subscribe to benefit sharing
agreements and regulations and obtain ABS
contracts and permits.


These recommendations are justified by the fact
that BioTrade companies are regularly audited to
verify their compliance with BioTrade principles and
standards that already include certain ABS provisions.
Therefore, a fast track provision for getting access
permits or licenses would boost interest, activities
and investment in the BioTrade sector in Viet Nam,
internationally known for its sustainable practices for
sourcing and using products from biodiversity. This fast
track procedure would also lighten the administrative
burden for the governmental agency in charge of the
ABS processes. In addition, the benefits shared along
the value chain of BioTrade businesses that may not
be mandatory due to the nature of BioTrade itself may
be a de facto sharing of benefits as those foreseen
under the ABS regulations37


Raising awareness and capacity building


Both BioTrade and ABS are relatively new concepts
in Viet Nam which creates a great opportunity for
awareness raising and capacity building among
stakeholders all over the country. There are several ways
to do so more effectively: (i) a joint effort of BioTrade
and Biodiversity Conservation Agency’s through their
various activities/projects (ii) as private and technical
BioTrade focal point in Viet Nam, BIG Viet Nam
could include ABS as one of its main communication
content to private sectors and consumers (iii) also,
BCA (VEA, MONRE) should also mention BioTrade
as a sustainable sourcing practice, in which ABS is
one of the key aspects. Likewise, the BCA should also
continue to work towards raising awareness at the
national and governmental level particularly among
all relevant agencies and institutions, and (iv) for a
more targeted and substantial impact, partnerships
of the above actors should be consolidated with




32 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


other “like-minded” entities such as Helvetas, to raise
awareness and build capacities among all value chains
stakeholders and partners with a view to encourage all
the actors to include ABS provisions in their contracts.


The CBD, UNCTAD, UEBT, Helvetas, GIZ and other
relevant organizations’ publications related to ABS
and BioTrade should be updated and revised to
promote awareness of both BioTrade and ABS.
Training workshops (such as UNCTAD`s workshop
on “Addressing the intersection between the Nagoya
Protocol, ABS and BioTrade” that was organized
jointly with the BCA, Helvetas Viet Nam and BIG Viet
Nam on 27-29 June 2016) should continue to be
organized. Other relevant events could also be used
to raise awareness on BioTrade and ABS issues.
In addition, international cooperation and public–
private partnership on ABS should be strengthened
for capacity building for ABS implementation and
BioTrade promotion.


Helvetas, the BCA and other relevant Ministries
should cooperate to develop a ‘National Programme
on BioTrade Development’. This programme could be
a public-private partnership initiative to duplicate the
proven effective models and mainstream awareness
raising at all levels.


Crucially, the Biodiversity Conservation Agency
(BCA) of MONRE should be officially appointed as
Governmental Focal point for BioTrade in Viet Nam.
BCA could promote BioTrade through the development
of policy and legislation for BioTrade, facilitate related
administrative procedures related to BioTrade and
ABS, coordinate with other BioTrade-involved
Ministries, agencies, PPCs and private BioTrade focal
points and other BioTrade actors to implement the
“National Program on BioTrade Development”.


The capacity building for BCA’s ABS implementation
should be a nexus to the new context of the BL 2008
revision, the Decree on ABS development, the potential
national programme on BioTrade development, and
the new Circular for guiding the implementation of
ABS in BioTrade projects and activities. The BCA,
BIG and UNCTAD should continue collaborating
and in the interim, to prepare the guidelines for the
implementation of the new ABS Decree in relation to
BioTrade. This report should be prepared in parallel to
the new draft Decree in order to be ready for the time
when its implementation starts.


Equally, value chain actors like BIG Viet Nam should
investigate cooperation opportunities between
communities, domestic and international R&D


Photo 8: Participants at UNCTAD`s workshop on “Addressing the intersection between the Nagoya Protocol, ABS and
BioTrade” (June 2016). Source: UNCTAD and BIG Viet NAm (2016).




33vIeT Nam


institutions and companies to further develop native
medicinal plants. As these actors focus on working
with natural ingredients mutual interrelationships could
benefit each actor’s BioTrade experience as well as
such positive dealings among themselves could bring
more practical ABS cases that could be valuable
sources of learning by cooperative practicing of the
ABS rules and BioTrade principles and Criteria.


Finally, the implementation of Principle 7 and its Criteria
for access to biological and GRs for sustainable
use should be subject to PIC from the government.
Therefore, the companies under the Helvetas BioTrade
Project phase 1 should start the procedures to obtain
PIC and the license to access relevant GRs following
the procedure of the Regulations if engaged in R&D,
including through biotechnology.


National database


To facilitate ABS implementation, promote
BioTrade development, put in practice the Nagoya
Protocol requirements on legal certainty, clarity and
transparency of access to GRs and their associated
TK, a national database and a corresponding access
policy and management for listing endemic species,
GRs and TK should be developed. This could also be
an effective mechanism to make information on GRs,
TK and ABS in Viet Nam easily accessible and in a
format that could be readily disseminated to relevant
parties that practice BioTrade standards and/or
required to comply with the ABS regime of Viet Nam.


Changes in purpose and confidentiality


Under the new draft Decree on ABS, access permits
are not required for domestic companies for the
purposes of scientific research. However, should
there be a change in use (for example by engaging in
commercialization of research outputs) of those GRs
or an intention to do so, the user, be it a BioTrade
entity or not, will be required to get a permit or license
from the competent authority to access the GR for
that particular purpose. For the avoidance of doubt,
such access rule is only imposed on domestic users.
Foreign users are required to procure access permits
at all times and for whichever purpose (i.e. commercial
or scientific). Given the complexity of the current
structures of many companies or business entities,
a working and effective system of classification of
domestic and foreign users would lighten up the
heavier load of ABS compliance for good faith users.


Last but not the least, enhancing financial and
technical resources is very important to realize all
common ABS and BioTrade targets. These resources
do not only come from the State’s budget but also
from the BioTrade actors during the process of ABS
implementation. In this respect, the new Decree will
include provisions for the payment of application fees
for access requests. Such fees should be minimal, fair
and non-arbitrary as well as take into consideration
the size of the entity accessing the GRs and the extent
of access to GRs being required.




34 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


glOssaRy


Access to genetic resources and benefit sharing (ABS) defines the way in which genetic resources can
be accessed and how the benefits resulting from their utilization can be shared among users, providers and
other related stake-holders.


BioTrade as defined by UNCTAD, means “activities of collection, production, transformation, and commercialization
of goods and services derived from native biodiversity (genetic resources, species and ecosystems) under the
criteria of environmental, social and economic sustainability”.


Biotechnology, pursuant to Article 2 of the CBD, means any technological application that uses biological
systems, living organisms, or derivatives thereof, to make or modify products or processes for specific use.


Biodiversity Law 2008 provides for the biodiversity conservation and sustainable development; rights and
obligations of organizations, households and individuals in the biodiversity conservation and sustainable
development.


Research and experimental development (R&D) tend to comprise creative and systematic work undertaken
in order to increase the stock of knowledge – including knowledge of humankind, culture and society – and
to devise new applications of available knowledge38 In principle, this is any information or knowledge that
could help to establish better resources assessment and management i.e.: any activity that generates new
information to better understand the GR and /or its biochemical composition.


Traditional Knowledge associated with Genetic Resources is defined by the BL 2008 as “means of knowledge,
experience and initiatives of indigenous and local people on the conservation and use of GRs”.


Utilization of genetic resources means to conduct research and development on the genetic and/or
biochemical composition of genetic resources, including through the application of biotechnology as defined
in Article 2 of the Convention.


Value chain approach refers to the coordinated relationship established among all actors in the value chain.
The aim of these alliances is to strengthen the value chain by sharing the associated risks and benefits.




35vIeT Nam


aNNex


SUMMARY OF ABS APPLICATIONS, UNDER THE BIODIVERSITY CONSERVATION AGENCY
GUIDANCE (BCA-MONRE)


1
GRs Access
Applicant


HANOI NATIONAL UNIVERSITY OF EDUCATION AND A JAPANESE INSTITUTE


Description
of GR


1. Specimen: Surbioidei Gobioidei, non-gobioid fish species
2. Purpose of access: Study sympatric fish communities, scientific research on taxonomy, life history and


population genetics of gobies in Vietnam
3. Place of access:


- Hoa Vang and Lien Chieu district, Da Nang and Tien Yen river, Quang Ninh.
4. Period of access: 23 February – 5 March, 2016
5. Terms of agreement:


- All collected samples are identified to make an inventory, and deposited at both institutions for further
research and museum display
- Some species are to be subjected to further molecular work (at the Japan institute)


6. Benefit sharing agreement:
- Funds to undertake the research
- Provision of necessary equipment for the research, relevant training inside (Viet Nam) and outside the
country (Japan)
- Coordinate with other relevant universities and staff in Japan


Notes
(Guidance
from BCA)


Request for provision of more details in the MOU between the two institutions on the following issues:
- Publication of research result;
- Application of the collected genetic resources;
- Intellectual property rights over the research results;
- Provisions in case of transfer research result to a third party;
- Storage and conservation of specimen, research product and related information.


In case of potential commercialization, request to contact MONRE for further guidance to satisfy national
legislation and principles of the Nagoya Protocol requirements


- Request for further follow up activities during implementation of the access plan:
+ Inform competent authorities in writing at sites of collection and obtain confirmation of local
government.
+ Follow requirements for information sharing, report on the result of collecting specimens and
periodically report on the use of the collected GRs to MONRE.
+ In case of transporting specimens outside Viet Nam - should follow other requirements by the
Government of Vietnam.




36 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


2


GRs Access
Applicant


VIET NAM AGRICULTURAL UNIVERSITY AND PLANT VARIETIES CORPORATION OF THE
NETHERLANDS


Description of GR 1. Type of GRs: cultivated local varieties and wild relatives of crops1.
2. Number of collection: 500 accessions per collection trip
3. Purpose of collection: cooperation to collect and research kinds of wild plants and native plant varieties


in Viet Nam, to share knowledge and experiences, to research epidemics and antibodies related to
vegetable varieties and seed of Viet Nam.


4. Site of collection: across Northeast, Northwest, Southeast and Southwest of Viet Nam (including Son
La, Dien Bien, Lai Chau, Lao Cai)


5. Duration of collection: 14th November – 5th December, 2015 (the collection date has now been
postponed till the end of 2016)


6. Terms of agreement:
- No agreement has been set out under the MOU between Vietnamese Institute and the Company,


“In case of further wish to collaborate, the Parties may enter into a separate agreement in which
field of collaboration shall be specified and in which the terms and conditions that apply to such
cooperation shall be agreed upon”;


- No benefit sharing terms mentioned.


Notes
(Guidance from BCA)


1. Request for provision of more detailed information in the access plan:
- List of provinces to conduct the collection, the access plan does not mention site of collection in


Southeast and Southwest of Vietnam;
- Follow regulations in the Decree 117/2010/ND-CP of 24/12/2010 on organization and


management of special-use forest when collecting genetic resources in National park and nature
reserve;


- Detailed list of GRs for collections, quantities and numbers of samples to be transferred out of the
country and form of transportation.


2. Request for addition of terms and conditions in the MOU and/or the agreement between the two
Parties on:


- Provisions on publication of research results and applications of collected GRs;
- Storage and conservation of specimens, research product and attached information;
- Benefit sharing agreements: monetary or non-monetary in forms of training, workshops,


technology transfers…); (in line with the Nagoya Protocol principles)
- Intellectual property rights over the research results; and
- Mechanism for information sharing, and reporting on the result of collecting specimens and


periodically reporting on the use of the collected GRs.
3. Other remarks:


- Inform in writing to competent authorities at sites of collection and obtain confirmation of local
government.


- Refer to the Law on Biodiversity and Decree 65/2010/ND-CP for further implementation.




37vIeT Nam


3


GRs Access
Applicant


COOPERATION BETWEEN VIETNAMESE UNIVERSITIES AND JAPANESE UNIVERSITIES ON
VIETNAMESE LOCAL HORSE GENES


Description of GR 1. Samples: Collect blood samples of local horses in Viet Nam
2. Purposes: Research on diversity of genetics and phylogentic of horse orginated from Asia
3. Site of collection: Mountainous and remote villages in the north Dien Bien, Lao Cai, Ha Giang, Cao


Bang, Bac Can, Lang Son.
4. Period of collection: from Jun – Dec 2016.
5. Terms of agreement:


Research results are to be shared by both parties, publication of scientific papers with co-authorship
of both Japanese and Vietnamese institutes;


Monetary support needed for the research to be provided by Japanese research team;
Samples collected are used for academic research purposes only, not for commercial purpose. No


IP rights applied, no transfer to a third parties without agreement of both institutions.


Notes
(Guidance from BCA)


- Reaffirm the information provided by the Vietnamese University: purpose of collection (scientific
research only), number of samples to be collected, sites of collection.


- Request for submitting collection report within 6 months from completion of collection process.
- Some other remarks:


+ In writing, inform competent authorities at sites of collection and obtain confirmation of local
government;


+ In case of transfer research result to a third party, request to contact MONRE for further
guidance to satisfy requirements of national legislations and principles of the Nagoya Protocol.


4


GRs Access
Applicant


A PRIVATE COMPANY IN VIET NAM AND A FRENCH PHARMACEUTICAL COMPANY


Description of GR 1. GRs to be accessed: Some herbal plants of Viet Nam
2. Purpose: Conduct experiments on compounds and to separate biochemical components existing in


some kinds of plants of Viet Nam for development of antineoplastic, inti-phlogistic drug, biological
pesticide and active principle components used in the cosmetic industry.


3. Terms of agreement: In the contract signed by both parties:
- Vietnamese company to prepare living specimen to be sent every 6 months within a 2-year period


and send specimen to the other party for further processing in France.
- Each specimen dispatch has at least 100g and maximum of 10kg with species from seed, body,


root, leaves, branches or other parts of the plant.
- Duration of agreement is 5 years, in case of successful research on the kinds of plants, provisions


of benefits sharing may be extended up to 20 years.
- The contract includes terms on sharing of benefits with native local communities and ensuring


conditions on fair and equitable sharing of benefits sharing arising from the use of GRs; includes
monetary and non-monetary benefits, intellectual property and technology transfer.


- Provisions on dispute settlement also apply as specified in the Convention on Biological Diversity
and Nagoya Protocol.


Notes
(Guidance from BCA)


Contract has been signed at the beginning of 2016 by two parties, but has not been submitted to BCA
yet. Some initial remarks are:


- First agreement between the two companies for accession of GRs for commercial purpose that
applies standard regulations on ABS under Nagoya Protocol, and regulations of Viet Nam.


- Both parties are building genetic resources access plan and requiring more guidance from BCA to
implement next steps.




38 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


5


GRs Access
Applicant


AGREEMENT BETWEEN INSTITUTE OF MICROBIOLOGY AND BIOTECHNOLOGY, VIET NAM
NATIONAL UNIVERSITY, HANOI (IMBT) AND BIOLOGICAL RESOURCE CENTER,
NATIONAL INSTITUTE OF TECHNOLOGY AND EVALUATION OF JAPAN (NITE) ON TRANSFER AND
BENEFIT-SHARING OF MICROBIAL RESOURCES


Description of GR 1. GRs to be accessed: microbial resources (bacteria, archaea, microalgae, phages, fungi) that have been
collected in the past 12 years (since 2004) of collaboration between the two institutions2.


2. Purpose: To promote transfer and utilization of microbial resources of Japan and Viet Nam
3. Collection: A collection of over 13,000 microbial strains
4. Terms of agreement:


- Material Transfer Agreements template to be agreed for two cases: distribution of the material not for
commercial use, distribution of the material to a third party.


- Benefit sharing terms:
+ For academic activities: non-monetary benefits
+ For commercial activities: shall be above 0 per cent and not be more than 1 per cent of the net


sales.
+ Each party shall pay to the other Party 50 per cent of amount of money paid by the third party.
+ No payment applied in the case of the user of material has the nationality of the country of origin of


the Material.


Notes
(Guidance from BCA)


BCA’s remarks are:
- Agreement on utilization of microbial strains applied ABS principles should be prioritized;
- MOU between NITE and IMBT on Transfer and Benefit-Sharing of Microbial Resources in compliance with


the Convention on Biological Diversity, the Nagoya protocol on ABS and relevant laws and regulations of
Vietnam;


- Intellectual property and Benefit arising from utilization of microbial resources are clearly defined in MOU.


Notes


1 Confidential information


2 Benefit sharing agreements for period 2004- 2016 between two institutions include the followings:


- Non-monetary benefits: Technology transfer , Enrichment of Viet Nam Type Cultures Collection (VTCC), - Providing
qualified data for VTCC, Building up E-catalogue of VTCC, Finding new taxa of microbe in Vietnam, Manpower
development, Publication in domestic & International Journals.


- Monetary benefits: 16 visits (Scientists and researchers) from VTCC to NITE (1-2 months ), 10 visits of VTCC
scientists to attended annual ACM meeting (I.II, III,IV,V,VI,VII.VIII,IX), >5000 sequence (18s, 23s, 16s ITS),
Conducting 18 Technical training workshops at IMBT for a number of 150 Vietnam participants, Chemicals
glassware for research activities at VTCC.




39vIeT Nam


Notes


1 See: https://www.cbd.int/doc/world/vn/vn-nr-04-en.doc, page 29, (accessed 5 November 2016).


2 Plant resources Centre. National Plant Gene Bank of Viet Nam. Source is only available in Vietnamese.
Available from: http://www.prc.org.vn/Content.aspx?tab=news&lang=vi&pid=8&cid=18&id=85, (accessed 5
November 2016).


3 http://www.globalforestwatch.org/country/VNM, (accessed 5 November 2016).
4 These animals include various endemic chickens (e.g. Dong Tao or Mong), ducks (e.g. Bau Quy or Muong


Khuong or Meo or Soc or Quy Chau), pigs (e.g. Van Pa or Ba Xuyen), H’mong bulls, Phan Rang sheep, and
black and grey rabbits.


5 Quotes based on Oanda published rates on 1 November 2016, available at http://oanda.com (accessed 1
November 2016).


6 Ibid.
7 For further information visit Wildlife Conservation Society (WCS) at: https://programs.wcs.org/vietnam/


Species/Primates.aspx.
8 See Viet Nam Academy of Science and Technology and IUCN (2007): Viet Nam Red Data Book. This is


the most recent version of the Viet Nam Red Book 2007. In order to obtain more recent data, there is
a need to update such publication and contrast it with more recent releases of the IUCN Red list. The
IUCN Red List can be accessed at: http://www.iucnredlist.org/.


9 In addition, BCA and MONRE also co-operated with other stakeholders to review and assess the ABS
activities with foreign GR users between 2000 and 2013. The BCA organized meetings with the following:
National Institute of Animal Sciences, the Department of Aquaculture, the Center of Plant Resources, the
Office of Plant Varieties Protection, the Southern Institute of Fruit Research, the Cuu Long Delta Rice Research
Institute, the Academy of Agriculture of Viet Nam, the Viet Nam Institute of Forestry, the Department of
Science and Technology for economic-technical branches of MOST, National Institute of Medicinal Materials
(NIMM), the Hanoi University of Pharmacies, the University of Can Than, as well as with localities of Lao Cai,
Binh Dinh, Quang Nam, Kon Tum, Ninh Binh, Can Tho.


10 No synonyms are recorded for this name. See: http://www.theplantlist.org/tpl1.1/record/tro-50290960
(accessed 6 November 2016).


11 Clause 2, Article 55 of Biodiversity Law 2008.
12 VOGEL.J.H et al. (2011). ‘The Economics of Information, Studiously Ignored in the Nagoya Protocol on


Access to Genetic Resources and Benefit-sharing’, 7/1 Law, Environment and Development Journal (2011),
p. 55, states that “Biological resources exhibit both tangible and intangible aspects the latter conceptualized
as a set of natural information where value currently added in a patent is access to a subset not previously
accessed.”


13 See: Medaglia CJ, and Silva LC (2007), Addressing the Problem of Access: Protecting Sources, while giving
users Certainty, IUCN Environmental Policy and Law Paper No. 67/1, p. 40.


14 “Traditional knowledge of genetic resources” means knowledge, experience and initiatives of native people on
the conservation and use of genetic resources. (Article 3.38 of Biodiversity Law 2008 of Viet Nam).


15 Article 64.1 of the Biodiversity Law 2008 of Viet Nam.


16 Article 64.2 of the Biodiversity Law 2008 of Viet Nam.


17 Clause 4, Article 24, Regulation on forest management issued by Decision 186/2006/QĐ-TTg dated
14/8/2006.


18 In addition to the types of benefits that may be shared included in the Regulations, parties may also refer
to Appendix 1 of the Nagoya Protocol on the kind of monetary or non-monetary benefits or to the Bonn
Guidelines on access to GRs and benefit-sharing for alternative ways to share benefits.


19 Article 19.2 of the Decree No. 65/2010/ND-CP.


20 Ministry of Economy, Trade and Industry of Japan and Japan Bio-industry Association (2006) Guidelines on
Access to Genetic Resources for users in Japan, p.13.


21 Promulgated together with the Government’s Decree No. 160/2013/ND-CP dated November 12, 2013.


22 See article 17.2 of the Nagoya Protocol.


23 See article 17.4 of the Nagoya Protocol.


24 Appendix I of Decree No. 187/2013/ND-CP of November 20, 2013.




40 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


25 For further information, please see: http://unctad.org/en/Docs/ditcted20074_en.pdf.


26 Starting with primary members are 4 BioTrade companies, BIG Viet Nam mission is to attract and
support other companies to take up BioTrade activities in Viet Nam. BIG Viet Nam is expected to
(1) Provide technical support to Natural ingredient value chains actors to comply with sustainable
sourcing practices (e.g.: Ethical BioTrade, GACP, organic.. standards); (2) Facilitate business linkage
among value chains actors and partners in domestic and international markets; (3) Facilitate the policy
dialogue between private and public sector for an enabling environment for BioTrade activities. BioTrade
communication to all related stakeholders and partners will play a crucial tools contribute to the overall
BIG mission. BIG should develop interesting and feasible BioTrade communication strategy and plan as
well as effective coordinating the BioTrade communication in the country.


27 Interviews carried out by David Vivas Eugui, UNCTAD/DITC/TED (2016).


28 Feedback from interviews carried out by UNCTAD in 2016.


29 Article 61.2 of the Biodiversity Law 2008 of Viet Nam.


30 Ibid.


31 http://biotradevietnam.org/en/du-an/ampelopsis-cantoniensis.html.


32 It should be noted that it will depend on the national or regional implementation laws to decide whether
derivatives fall within the scope of the ABS systems or not. The Nagoya Protocol does not make it mandatory
to include them in the scope of application of the implementing regulations.


33 Article 3.22 of the Biodiversity Law 2008 of Viet Nam.


34 http://biotradevietnam.org/en/du-an/gymnema-sylvestre.html.


35 http://biotradevietnam.org/en/du-an/ampelopsis-cantoniensis.html.


36 http://biotradevietnam.org/en/du-an/polysias-fruticosa.html.


37 Notes from the minutes of the workshop on “Access and benefit sharing and BioTrade” 27-29 June 2016,
Hanoi, Vietnam, UNCTAD/BCA/BIG/SECO.


38 OECD (2015), Frascati Manual 2015: Guidelines for Collecting and Reporting Data on Research and
Experimental Development, The Measurement of Scientific, Technological and Innovation Activities, OECD
publishing, Paris, quoted by Véronique, Rossow, in her presentation of “Research priorities, types of use and
changes in intention along the value chain” Hanoi, 27-28 June 2016, UNCTAD.




41vIeT Nam


References


Appendix 1 of No. 187/2013/ND-CP. (2013). Decree on Detailing the implementation of the commercial law
regarding international goods sale and purchase and goods sale, purchase, processing and transit agency
activities with foreign countries. Accessed 4 November 2016 from http://haiquanbinhduong.gov.vn/en/
vanban/nd187.2013.doc.


BCA-MONRE. (n.d.). Serving for Development of New Decree on ABS (Unpublished report).
BIG Vietnam. (2004). AMPELOPSIS CANTONIENSIS. Accessed 4 November 2016 from http://biotradevietnam.


org/en/du-an/ampelopsis-cantoniensis.html.
BIG Vietnam. (2004). GYMNEMA SYLVESTRE. Accessed 4 November 2016, from http://biotradevietnam.org/


en/du-an/gymnema-sylvestre.html.
BIG Vietnam. (2004). POLYSIAS FRUTICOSA. Accessed 4 November 2016 from http://biotradevietnam.org/en/


du-an/polysias-fruticosa.html.
Biodiversity Law of Vietnam. (2008). The National Assembly of the Socialist Republic of Vietnam. Legislature


XII, 4th Session.
Cảnh, L.E. & Hải, H.O. (2010). Scientific Conference on Biodiversity: Current status and biodiversity degradation


in Vietnam. VEA. Accessed 4 November 2016 from http://vea.gov.vn/vn/truyenthong/sukien-ngayle/
hoinghimttq/khoahocchuyende/Pages/H%E1%BB%99ingh%E1%BB%8BKhoah%E1%BB%8Dcv%E1%
BB%81%C4%90ad%E1%BA%A1ngsinhh%E1%BB%8DcHi%E1%BB%87ntr%E1%BA%A1ngv%C3%A0
suytho%C3%A1i%C4%91ad%E1%BA%A1ngsinhh%E1%BB%8Dc%E1%BB%9FVi%E1%BB%87tNam.
aspx.


Convention on Biological Diversity. (2010). Access and benefit-sharing: Uses of genetic resources Traditional
knowledge - The Bonn Guidelines National implementation (Factsheets in the ABS series). Secretariat of
the Convention on Biological Diversity. Accessed 4 November 2016 from https://www.cbd.int/abs/infokit/
brochure-en.pdf.


Convention on Biological Diversity. (n.d.). Parties to the Nagoya Protocol. CBD Secretariat. Accessed 4
November 2016 from https://www.cbd.int/abs/nagoya-protocol/signatories/default.shtml.


Convention on Biological Diversity. (n.d.).Viet Nam - Country Profile Biodiversity Facts. CBD Secretariat.
Accessed 4 November 2016 from https://www.cbd.int/countries/profile/default.shtml?country=vn#facts.


Convention on Biological Diversity.(2011). Recommendation Adopted by the Intergovernmental Committee
for the Nagoya Protocol. Open-ended Ad hoc Intergovernmental Committee for the Nagoya Protocol on
Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization,
First Meeting, Montreal, 5-10 June 2011. Available from https://www.cbd.int/doc/recommendations/ICNP-
01/icnp-01-rec-02-en.pdf. Accessed 5 November 2016.


Convention on Biological Diversity (2011). Nagoya Protocol. Convention on Biological Diversity United
Nations. Secretariat of the Convention on Biological Diversity. Quebec, Canada. Accessed 4 November 2016
from https://www.cbd.int/abs/doc/protocol/nagoya-protocol-en.pdf.


Cuc, N.D.T. (2015). Implementation of ABS Regulations in Viet Nam. Accessed 4 November 2016 from http://
unctad.org/meetings/en/Presentation/ditc-ted-10112015-PeerReviewNagoya-ppt-vietnam-cuc.pdf.


FAO, (2000). Conservation of Forest Genetic Resources in Vietnam with Reference to Endangered Tree Species.
Available from: http://www.fao.org/docrep/005/ac648e/ac648e0g.htm. Accessed 4 November 2016.


Global Forest Watch.(2013). Country Profiles: Vietnam. Accessed 4 November 2016 from http://www.
globalforestwatch.org/country/VNM.


Helvetas. (n.d.). - Supporting the development of value chains for natural ingredient products. Available from:
https://vietnam.helvetas.org/en/activities/previous_projects/biotrade2/ Accessed 4 November 2016.


IUCN (n.d.), The IUCN Red List, available from http://www.iucnredlist.org/.
Khánh, T.C. (2004). Traditional medicinal plants, indigenous knowledge and fair and equitable ABS. National


Workshop of ABS. Hanoi, Viet Nam.
JBA & METI. (2012). Guidelines on Access to Genetic Resources


For Users in Japan Second Edition. Japan Bioindustry Association (JBA) and Ministry of Economy, Trade and
Industry (METI). Accessed 4 November 2016 from http://www.jba.or.jp/pc/en/library/pdf/2012_guideline_
access_e.pdf.


Lan, T., Hung, N. (2013). Assessment of domestic market for selected medicinal plants
Medaglia, C.J, Silva, L.C. (2007). Addressing the Problem of Access: Protecting Sources, while giving users


Certainty. IUCN Environmental Policy and Law Paper No. 67/1, 2007, p. 40.
Lan, T. (2008). Status of Conservation of Agriculture Genetic Resource in Viet Nam. Accessed 4 November 2016


from http://ir.tari.gov.tw:8080/bitstream/345210000/2921/1/publication_no135_21.pdf.




42 The InTerface beTween access and benefIT sharIng rules and bIoTrade In


IPONRE. (n.d.). Study rationale, practices and management mechanisms proposed activities access to genetic
resources and sharing of benefits from genetic resources in Vietnam. Accessed 4 November 2016 from
http://isponre.gov.vn/home/du-an-de-tai-dang-thuc-hien/132-nghien-cuu-co-so-ly-luan-thuc-tien-va-de-
xuat-co-che-quan-ly-hoat-dong-tiep-can-nguon-gen-va-chia-se-loi-ich-tu-nguon-gen-o-viet-nam.


Ministry of Natural Resources and Environment (MONRE) - Vietnam Environment Administration.
(VEA) (2008). 4th Country Report: Vietnam’s Implementation of the Biodiversity Convention (Draft).


MONRE. (n.d.).. Accessed 4 November 2016 from http://www.monre.gov.vn/wps/portal/news/!ut/p/c5/
dclJDoIwFADQE5n_ZQzLRmYQhRZSuyENiYZBBsOgnF4vYN7ygYfXq71Q8710MsOOAijPHnE18wY0Su
IgYTS9BKYoYIewg2E-fcjDRhw1Era4LDEdIx2ur5ZhS-Ls6zZUyWZU78eRe5ObMq0SHzunR7mxA2czj6r
SVMpiVW4x-1ataLmnT6xdsvVYG4cP3BSmy_4PMDYSvIF8GInoQ!!/.


Nghia, N.H. (2002). Conservation of Forest Genetic Resources in Vietnam with Reference to Endangered
Tree Species. Proceedings of the Southeast Asian Moving Workshop on Conservation, Management and
Utilization of Forest Genetic Resources. FORSPA.


Nijar, G.S. (2011). The Nagoya Protocol on Access and Benefit Sharing of Genetic Resources: Analysis and
Implementation Options for Developing Countries, page 28. South Centre and CEBLAW. Accessed 4
November 2016 from, https://www.southcentre.int/wp-content/uploads/2013/08/Ev_130201_GNjar1.pdf.


Nguyen DTC (2015). Implementation of ABS Regulations in Viet Nam. Available from: http://unctad.org/
meetings/en/Presentation/ditc-ted-10112015-PeerReviewNagoya-ppt-vietnam-cuc.pdf . Accessed 5
November 2016.


OECD. (2015). Frascati Manual 2015: Guidelines for Collecting and Reporting Data on Research and Experimental
Development, the Measurement of Scientific, Technological and Innovation Activities. OECD.


Plant Resources Center. (2014). Morphological research and agricultural biological genetic resources of local
rice. http://www.prc.org.vn/Content.aspx?tab=news&lang=vi&pid=8&cid=18&id=85,. Accessed 4 November
2016.


Pham T et. al. The Context of REDD+ in Viet Nam: Drivers, Agents and Institutions. Occasional Paper 75 (2012).
CIFOR, Bogor, Indonesia, available from: http://www.cifor.org/library/3737/the-context-of-redd-in-vietnam-
drivers-agents-and-institutions/ . Accessed 4 November 2016.


Son, T.M. (2013), BioTrade experiences in Pharmaceutical / Food supplements industry in Viet Nam, HELVETAS
Swiss Intercooperation Vietnam. BioTrade Congress II.


TRAFFIC Southeast Asia/Nguyen DNV, Nguyen T (2008), An Overview of the Use of Plants and Animals
in Traditional Medicine Systems in Viet Nam. Available from http://www.trafficj.org/publication/08_medical_
plants_Viet_Num.pdf. Accessed 5 November 2016.


Trần Công Khánh (2004). Traditional medicinal plants, indigenous knowledge and fair and equitable ABS.
National Workshop of ABS. Hanoi, Viet Nam.


UEBT (2016), The UEBT Biodiversity Barometer, available from http://ethicalbiotrade.org/biodiversity-barometer/.
Accessed 5 November 2016.


UNCTAD. (2007). BioTrade Principles and Criteria. United Nations New York and Geneva. Accessed 5 November
2016 from http://unctad.org/en/Docs/ditcted20074_en.pdf.


UNCTAD. (2016). Minutes of Access and benefit sharing and BioTrade Workshop on 27-29 June 2016
UNCTAD. (2016). Facilitating BioTrade in a Challenging Access and Benefit Sharing Environment. United Nations.


Accessed , from http://unctad.org/en/PublicationsLibrary/webditcted2016d4_en.pdf.
UNCTAD. (2016). Addressing the Intersection between the Nagoya Protocol, Access and Benefit


Sharing Rules, and BioTrade. UNCTAD. Accessed 5 November 2016., from http://nr.iisd.org/events/
addressing-the-intersection-between-the-nagoya-protocol-access-and-benefit-sharing-rules-and-biotrade/.


UNDP. (2014). Individual Consultant Procurement Notice for “Capacity Building for the Ratification and
Implementation of the Nagoya Protocol on Access and Benefit Sharing in Viet Nam” Project.


Van. N.D.N. & Tap, N. (Comps) (2008). An overview of the use of plants and animals in traditional medicine
systems in Viet Nam. TRAFFIC Southeast Asia, Greater Mekong Programme, Ha Noi, Viet Nam. Accessed 5
November 2016 from http://www.trafficj.org/publication/08_medical_plants_Viet_Num.pdf.


Viet Nam Academy of Science and Technology & IUCN (2007). Viet Nam Red Data Book. Nhà xuâ̂t bân
Khoa hôc t̂̂ nhiên và công nghê̂.


Vietnam+. (2016). Vietnam works to preserve, tap into rich genetic resources. Accessed 5 November 2016
from http://en.vietnamplus.vn/vietnam-works-to-preserve-tap-into-rich-genetic-resources/89949.vnp.


Vivas Eugui, David. (2016). Short background paper Globally and in Viet Nam.
VOV. (2015). Vietnam promotes competency on genetic resources access. Accessed 5 November 2016 from


http://english.vov.vn/society/vietnam-promotes-competency-on-genetic-resources-access-305149.vov.
Vogel, J.H., et al. (2011). The Economics of Information, Studiously Ignored in the Nagoya Protocol on Access




43vIeT Nam


to Genetic Resources and Benefit-sharing’,7/1 Law, Environment and Development Journal.
Wahlberg, A. (2006). Bio-politics and the promotion of traditional herbal medicine in Viet Nam. Health, SAGE


Publications, 10 (2), pp.123-147. <10.1177/1363459306061784>. <hal- 00571420> Accessed 5 November
2016, from https://hal.archives-ouvertes.fr/hal-00571420/document.


World Bank (2016). Viet Nam Overview. Available from http://www.worldbank.org/en/country/vietnam/overview.
Accessed 4 November 2016.


WHO (2011). Legal Status of Traditional Medicine and Complementary/Alternative Medicine: A Worldwide
Review. Available from http://apps.who.int/medicinedocs/en/d/Jh2943e/9.19.html Accessed 5 November
2016.


WHO (2003). Traditional Medicine Fact sheet N°134. Accessed 5 November 2016 from http://www.who.int/
mediacentre/factsheets/2003/fs134/en/.


WWF. (n.d.) Greater Mekong. Accessed 5 November 2016 from http://www.worldwildlife.org/places/
greater-mekong.




Login