WTO Agreement and National Laws-2

2. Amendment to the existing Laws

In addition to enacting some new laws, as mentioned in the previous section, Nepal also needs update, at least, the following laws in connection with its efforts to join the multilateral trading system.

A.      The Patent , Design and Trademark Act, 1965

The Patent, Design and Trademark Act was enacted in 1965. During that time, Nepal was not a contracting party to any of the intellectual property related treaties, not even the Agreement on World Intellectual Property Organisation. However, Nepal has recently become party to the latter Agreement which includes an Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS). In the future, Nepal will have to implement the said Agreement through the enactment of an amendment to the existing law. Concerning the implementation of TRIPS Agreement at the national level, Article 41 stipulates “Members shall ensure that enforcement procedures as specified in the Agreement are available under their laws so as to permit effective action against any act of infringement of intellectual property rights covered by this Agreement”. It is also mentioned in the same Article that the procedures concerning the enforcement of intellectual property rights should be fair and equitable. The agreement covers the following types of intellectual property rights;

a)       Copyright and related rights

b)       Trademarks including service marks

c)       Geographical indications

d)       Industrial designs

e)       Patents

f)        Lay-out design (topographies) of integrated circuits

Undisclosed information including trade secrets

There is a debate within the business communities’ of developing countries concerning the benefits of the WTO Agreement on Intellectual Property Rights. Some say that this Agreement is only beneficial for developed countries because it may promote research and innovation.

As Nepal is famous for certain Himalayan herbs and some other products, the right concerning geographical indications should become a matter of great concern for us. Geographical indications are, for the purpose of the aforementioned Agreement, indications which identify a commodity as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the commodity is essentially attributable to its geographical region. Despite the importance of the said right, the existing Patent, Design and Trademark Act of Nepal does not cover the rights concerning geographical indications as well as some other rights covered by the WTO Agreement on Trade Related Aspects of Intellectual Property Rights. Therefore, the Act needs to be amended so as to encompass all the previous mentioned in the TRIPS Agreement and also in the Agreement on World Intellectual Property Organisation.

B.      The Foreign Investment and  Transfer of Technology Act, 1992

Recognising the importance of foreign investment for the economic growth of Nepal, laws governing foreign investment and transfer of technology were enacted in 1992. The Foreign Investment and Transfer of Technology Act contains only 10 sections and an annex. Over the last few years, trade in services has dramatically increased and it accounts for 20 percent of the overall trade today. The sector has been classified into nearly 200 sub-sectors. However, the Foreign Investment and Transfer of Technology Act Stipulates only a short list of service sectors and sub-sectors. The Act should for a clear classification of the services sector and also stipulate as to which sector or sub-sectors are open for foreign investment and which have restrictions. The Act needs to be restructured keeping in view similar laws of other countries, the General Agreement on Trade in Services (GATS) and Agreement on Trade Related Investment Measures (TRIMS). The GATS provides international rules for trade in services that aim to liberalise the whole service sector. The TRIMS, on the other hand, aim at facilitating Trans-boundary investments for economic growth. The TRIMS agreement stipulates provisions aimed at the elimination of certain measures like local materials requirement, foreign currency balancing requirement etc. Various aspects of the aforesaid agreements must carefully monitored while restructuring the above mentioned Act.

C.      The Food Act, 1996 and the Plants Protection Act, 1972

 The Food Act and the Plants Protection Act stipulate some provisions concerning exports and imports of foodstuffs and plants respectively. The Food Act, which was legislated in 1966, has been amended two times, the last amendment was made in 1992. However, no amendment has been made to the Plants Protection act since its enactment in 1972. These laws have to be brought in conformity with the WTO Agreement on the Application of Sanitary and Phyto-sanitary Measure. The Agreement sets the rights and obligations of WTO members taking sanitary and phyto-sanitary measures for protection of human, animal or plant life or health from the spread of pest or diseases. According to the 1998 LDC Report of UNCTAD, the transparency provisions stipulated in the aforesaid agreement have been identified as serious problem for many LDCs, owing to their infrastructure shortcomings as well as the deficient functioning of their regulatory bodies. The Report further notes that, by mid-1996, no LDC has requested exemption from the obligations of the agreement on sanitary and phyto-sanitary measure. The proposed amendment to the Food Act and Plants Protection Act should cover all the aspects of the aforementioned agreement and must provide the Government of Nepal with the appropriate mechanism for protecting the humans and plants of the country.

The recently enacted Animal Health and Animal Services Act (1998) has covered matters relating to export and import and animal products and has also incorporated a provision on protection of animal health. Therefore, I don’t see any need for further elaboration or amendment of the Animal Health and Animal Services Act in Connection with the WTO accession.

The above mentioned Agreement on Application of Sanitary and Phyto-sanitary Measures are aimed at the following four broad cases in which they might be applied:

A)     For the protection of animals and plants from risks arising from the entry, established or spread of pest or diseases carrying or disease-causing organisms.

B)      For the protection of humans and animals from risks arising from additives, contamination, toxins or disease-causing organism in foods, beverages or foodstuffs.

C)      To protect human from risks arising from disease carried by animals, plants, or plant products, or from the entry, establishment or spread of pests.

D)      To protect plants and animals, or limit other damage, from the entry, establishment or spread of pest, i.e. fruits from the regions or countries infested with fruit flies.

It is for our interest and for protection of our people and plants that we need to update as soon as possible the Food and Plants Protection Acts in line with the aforesaid Agreement. It is because of the lack of an appropriate legal tool and mechanism, almost any types of foodstuffs, animal or plants are being imported and sold in Nepal- no matter what adverse effects they may cause to our life. A burning example of this problem is that many countries of Asia including Bangladesh have recently confiscated Belgian meat and meat products from the markets, burnt it as well as imposed restriction on its imports because the meat products were found to be carcinogenic. Unfortunately, no steps have been taken in Nepal either for confiscation or prohibition on imports of such products into the country.(Text courtesy NEFAS publication. Concluded).

The task ahead is to make SAARC more cohesive

Dr.Ram Sharan Mahat, Foreign Minister, Nepal

The choice before South Asian is not between co-operation and non-co-operation; we are all agreed on the enormous cost of non-co-operation. The real issue is how we pursue co-operation- the degree of political will to reinforce our vision of and commitment to regional co-operation and its pace. Also important will be our awareness of both the challenges and opportunities in the rapidly changing global scenario.

Though the SAARC is a late comer in the family of regional organisations, it has covered a substantial; part of co-operative activities since its inception. However, we cannot be complacent about its achievement. It is also a matter of fact that many important decisions made by the successive summits remain unimplemented. Such a state of affairs has somewhat undermined the credibility of SAARC. It compels us to take a realistic course of action. We are of the opinion that if we expect SAARC to make a real contribution it should focus on durable and tangible activities supported and backed by informed regional inputs and adequate resources.

His Majesty’s Government of Nepal considers the Report of the Group of Eminent Persons (GEP) as an important outcome of the ongoing process of introspection into the functioning of SAARC. The Report contains a number of useful recommendations in making the SAARC a vital instrument for a meaningful regional co-operation. We are of the view that the feasible recommendations of the GEP can be implemented within an agreed time frame in the short, medium and long-term, as appropriate.

As we all know, SAARC has often been criticised for lacking a sense of direction. We should accept this as nothing but a challenge to our collective wisdom. It cannot be denied that there are hurdles in the SAARC process. However, I am of the view that the hurdles are not insurmountable. The difficulties can be ironed out in the spirit of trust, mutual accommodation and good neighbourliness while appreciating each other’s aspirations and concerns. Geographical contiguity shared cultural heritage and values are enormous assets to make SAARC a vibrant force, both politically and economically. The vitality of SAARC also depends on the support it receives not only from the governments but also from the cross-sections of the larger South Asian community.

The globalisation process has further compelled us to seriously engage in the process of co-operation. By enlarging opportunities for exploiting regional complementarities and synergy the countries in South Asia can maximise the benefits of globalisation and liberalisation and tide over its negative impacts. The forces of globalisation and heightened competition are all tending to push the weaker and vulnerable economies to the margin in the absence of a level-playing field for them. This calls for a coherent exposition of South Asia in its external dealings. The practice of evolving common SAARC positions on major global economic and trade related issues are a welcome initiative, which needs to be carried forward in our collective interest.

South Asia is rich in human and natural resources. The prudent exploitation of natural resources together with the utilisation of our manpower will certainly transform the economic landscape of South Asia. A momentum has already been generated with the expansion of co-operation in core economic areas. The immediate task ahead is to introduce the free trade area in the shortest possible time frame. For this we need to make serious efforts to further liberalise trade by eliminating discriminatory practices, tariff and non-tariff barriers and other structural impediments.

There are other issues of equal importance such as transport and transit facilitation, harmonisation of customs procedures, infrastructure development and promotion of investment which need to be addressed in a comprehensive manner commensurate with the progress in SAFTA. Present constraints in these fields have not helped in facilitating foreign direct investment. Despite serious attempts made in the recent years by almost all countries of this region, South Asia in the relative global context is still not perceived as investment friendly region. As we proceed, we have to take also on board issues relating to the harmonisation of macro-economic policies. The forum of the Governors of the Central Banks and monitory authorities has started consultations on this issue.

As we move towards establishing SAFTA and towards a long-term goal of an eventual South Asian Economic Union, greater attention needs to be given to the plight of the Least Developed Countries in the region. The equitable sharing of benefits from the evolving regional trading regime will create a win-win environment for all. Our collective prosperity will enhance our collective strength. We feel that the achievement and maintenance of a minimum, acceptable level of economic and social development in each member state will provide an impetus for deeper economic integration. Experiences of other regional groupings have already established this fact.

The effective participation of the private sector in enhancing regional economic co-operation is pre-condition for the success of or endeavours. The governments of Member State as need also to encourage the private sector involvement and initiative in socially responsible investment.

The SAARC has given a priority to social agenda, some progress has been achieved in social sectors but much remain to be done. There is a commitment to develop a Social Charter for SAARC. The issues that have been broadly outlined to be incorporated in the Charter cover most of the issues that SAARC has already taken up. The past commitments need to be defined in terms of rights, obligations and entitlements along with a mechanism to ensure their full enjoyment. We are hopeful that the Social Charter will be a genuine outcome of the SARRC process towards this end. We are of the view that the social issues need to be addressed in the larger context of globalisation, as social safety nets will be of critical importance in protecting the poorest and vulnerable segments of our society.

The consolidation of regional co-operation calls for an effective and efficient institutional set-up. The annual cycle of SAARC summits provide an indispensable forum to review progress in the implementation of agreed programmes as well as in giving directions for the future. The summit, particularly its retreat part, is a rare opportunity for free and franks exchange at the highest political level in an informal setting. There is already a consensus on the need to make the summit and other meetings of SAARC more business-like and result oriented. The requirements of the SAARC Secretariat for enhanced professionalism and adequate resources need to be addressed as we move ahead with the consolidation of the SAARC process.

The task ahead is to make SAARC more cohesive with clearly defined vision and concomitant. SAARC has become the instrument to achieve a common South Asian identity and has the potential to promote the regional solidarity. Temporary difficulties should not be allowed to detract us from our collective endeavours. Indeed, South Asia does not have an alternative. We are confident that the Eleventh Summit will find the recommendations of this conference useful in infusing new dynamism to the SAARC process. 
(The author's remarks made at the concluding session of the CASAC conference last week-Chief  editor).

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