Vietnam Law & Legal Forum Magazine is your gateway to the law of Vietnam

Official Gazette

Sunday, September 20, 2020

Draft law on lawyers: New provisions and proposals

Updated: 15:37’ - 08/11/2005

NGUYEN TRUONG GIANG
Law Department, National Assembly Office

Foreign lawyers organizations and foreign lawyers now practice law in Vietnam under the 2001 Ordinance on Lawyers and Government Decree No. 87/2003/ND-CP dated July 22, 2003 (hereinafter referred to as Decree No. 87). For the purposes of creating links between Vietnamese and foreign lawyers organizations and lawyers in their profession and preventing any misunderstanding that there is discriminatory treatment between them, specific provisions are made in the draft Law. Most provisions basically perpetuate those of Decree No. 87. However, some provisions need to be further studied and revised.

1. Foreign lawyers organizations practicing law in Vietnam

Under the draft Law, foreign lawyers organizations that are lawfully set up and operate in foreign countries and show good will toward the Vietnamese State will be licensed to practice law in Vietnam. These provisions are perpetuated from Decree No. 87.

Foreign lawyers organizations may practice law in Vietnam in the following forms: branches of foreign lawyers organizations, foreign law firms, and joint-venture law firms between foreign and Vietnamese lawyers organizations. According to the provisions of the 2001 Ordinance on Lawyers and Decree No. 87, foreign lawyers organizations are only permitted to set up partnerships with Vietnamese law partnerships, a form of enterprise with unlimited liability. These provisions have created barriers to the operation of foreign lawyers organizations in Vietnam. Based on the view that lawyers practicing their profession by providing legal services, a conditional business, and for the purpose of diversifying forms of law-practicing organizations, the draft Law provides for various forms of these organizations, including lawyer’s offices, law partnerships and limited-liability law firms. Foreign law-practicing organizations may enter joint ventures with any Vietnamese law-practicing organizations.

Regarding the setting up of foreign law firms or their branches in Vietnam, the draft Law does not clearly define the responsibilities of these entities. In our opinion, the definitions of the models and responsibilities of foreign law-practicing organizations in Vietnam should be consistent with the provisions of the enterprise law and investment law. Accordingly, foreign law firms, their branches and joint-venture law firms will bear limited liability for their activities. That foreign law firms operating in Vietnam will bear limited liability for their activities complies with the Law on Foreign Investment and the draft Investment Law to be submitted to the 8th session of the XIth National Assembly. Under the Law on Foreign Investment, joint ventures between foreign and Vietnamese lawyers organizations will take the form of limited liability companies. Apart from this form of liability, other forms of liability should be considered for application to law-practicing organizations operating in Vietnam. The diversification of forms of liability, along with the compulsory requirement for lawyers to purchase professional liability insurance, is in line with the current trend in many countries in the world.

The draft Law stipulates that foreign lawyers organizations may enter into joint ventures with any Vietnamese lawyers organizations, namely lawyer’s offices or law firms. However, it does not specify the forms of such joint ventures. We propose that joint ventures between foreign lawyers organizations and Vietnamese lawyers’ offices should not be permitted. A lawyer’s office is a law-practicing organization set up by a lawyer and, according to the Enterprise Law, is not an enterprise. Therefore, it will be hard to determine material liabilities in such joint ventures. To rule out the possibility of setting up such joint ventures is in compliance with Vietnam’s commitments in the Vietnam-US Bilateral Trade Agreement (BTA), which only mentions the setting up of joint ventures between US and Vietnamese law firms.

Regarding the practicing scope of foreign law firms, foreign law firm branches and joint-venture law firms in Vietnam, these entities may provide legal consultancy and other legal services but will not be allowed to appoint foreign lawyers to participate in legal proceedings in the capacity as defense counsels or client representatives before Vietnamese courts. However, the draft Law provides that Vietnam-based foreign lawyers organizations may appoint Vietnamese lawyers who are their members to participate in legal proceedings before Vietnamese courts in cases in which they provide legal consultancy.

On one hand, these provisions will reduce market barriers for foreign lawyers organizations operating in Vietnam, meeting the requirements of international economic integration. On the other hand, they will enable Vietnamese lawyers to participate in international lawsuits, gaining opportunities to raise their knowledge and experience in dealing with international disputes, and create a level playground for Vietnamese lawyers working for foreign and Vietnamese lawyers organizations. In principle, Vietnamese lawyers are entitled to practice professionally in all domains of legal service according to the provisions of law. This will encourage foreign lawyers organizations practicing law in Vietnam to hire Vietnamese lawyers who, as a result, will have opportunities to study international law and raise their professional and foreign language skills.

The draft Law further stipulates that foreign lawyers organizations may provide consultancy on Vietnamese law if they have Vietnamese lawyers as members or foreign lawyers who have graduated from a Vietnamese law university.

Regarding the rights and obligations of foreign lawyers organizations practicing law in Vietnam, the draft Law, perpetuating the provisions of Decree No. 87, stipulates that these entities may provide legal services as stated in their establishment licenses; receive remuneration from clients; hire foreign and Vietnamese lawyers as well as employees; receive Vietnamese lawyers to work on probation in their organizations; and implement accounting and statistical regimes and perform financial obligations according to the provisions of Vietnamese law, among other things. We propose that these specific rights and obligations should not be defined in this Law. Rather, this Law should only provide for those rights and obligations that are specific to foreign lawyers organizations. Since these entities are businesses, they must operate in accordance with the provisions of the laws on enterprises and investment as well as the provisions of the Law on Lawyers.

2. Foreign lawyers practicing law in Vietnam

Conditions on law practice, forms and scope of law practice and the rights and obligations of foreign lawyers in Vietnam provided for in the draft Law are basically similar to those defined in Decree No. 87.

Specifically, foreign lawyers must possess valid law practice certificates granted by foreign competent authorities; show good will toward the Vietnamese State; and be appointed by foreign lawyers organizations to practice law in Vietnam or employed by foreign or Vietnamese lawyers organizations.

Foreign lawyers may practice their profession in the capacity as members of Vietnam-based foreign lawyers’ organizations or under contracts signed with these organizations. Otherwise, they may work on a contractual basis for Vietnamese lawyers organizations.

Under the draft Law, foreign lawyers may provide advice on foreign and international laws, but not on Vietnamese law, unless they have obtained Vietnamese bachelor’s degrees in law. They will not be permitted to participate in legal proceedings in the capacity as defense counsels or client representatives before Vietnamese courts. Regarding their scope of practice, the draft Law provides that foreign lawyers who have obtained bachelor’s degrees in law in Vietnam may give advice on Vietnamese law, without having to meet all requirements set for Vietnamese lawyers. This provision, in our opinion, is not enough to ensure equality in the rights and obligations of Vietnamese and foreign lawyers practicing law in Vietnam. To be able to practice law in Vietnam, foreign lawyers should not only have Vietnamese bachelor’s degrees in law but also satisfy all requirements set for their Vietnamese colleagues. This is compliant with the BTA, whereby branches of US law firms, companies with 100% US capital and joint ventures between US and Vietnamese law firms may provide advice on Vietnamese law if counseling lawyers have Vietnamese university degrees in law and meet all requirements set for Vietnamese lawyers.

As for the rights and obligations of foreign lawyers, the draft Law stipulates that they may opt for the form of practicing their profession by either working as members of Vietnam-based foreign lawyers’ organizations or under contracts signed with these organizations, or working on a contractual basis for Vietnamese lawyers organizations. They are allowed to transfer abroad income earned from their profession. Meanwhile, they have the obligations to pay personal income tax according to law, observe the rules of their profession, refrain from committing acts prohibited in the draft Law, comply with the code of professional ethics and conducts issued by the Vietnam Bar Association, and be permanently present in Vietnam.

3. Procedures for granting permits to foreign lawyers organizations and foreign lawyers

The procedures for granting permits to foreign lawyers organizations and foreign lawyers to practice law in Vietnam provided for in the draft Law on Layers are similar to those stipulated in Decree No. 87.

a/ Procedures for granting permits to foreign lawyers organizations

Under the draft Law, to establish a branch in Vietnam, foreign lawyers organizations must prepare the following documents: an application for permission to establish a branch, copies of papers evidencing the lawful establishment of the applying foreign lawyers organization, granted by foreign competent authorities and a written description of its operation. For the establishment of a foreign law firm, the following documents are required: an application for permission to establish a foreign law firm, copies of papers evidencing the lawful establishment of the applying foreign lawyers organization or organizations, granted by foreign competent authorities, with a written description of its or their operation, a list of foreign lawyers expected to work for the law firm, and the law firm’s charter.  For the establishment of a joint-venture law firm, the following documents should be submitted: an application for permission to establish a joint-venture law firm, copies of papers evidencing the lawful establishment of the foreign and Vietnamese lawyers organizations, a copy of the operation registration paper of the Vietnamese lawyers organization, written description of the foreign lawyers organization, a list of foreign and Vietnamese lawyers expected to work for the joint venture, and the joint venture contract.

The draft Law also provides for the main contents of establishment applications and firm charters.

Dossiers of application should be addressed to the Ministry of Justice. After receiving permits from the Ministry of Justice, foreign law-practicing organizations must register their operation with provincial-level Justice Services of the localities where they are based.

b/ Procedures for granting practice permits to foreign lawyers

To be granted law practice permits in Vietnam, foreign lawyers should submit dossiers of application to the Ministry of Justice. Such a dossier will consist of an application, papers certifying that the applicant is a lawyer of a foreign lawyers organization who is appointed to practice law in Vietnam or certifying the recruitment of the applicant by a Vietnam-based foreign lawyer organization operating or Vietnamese lawyers organization, a copy of the applicant’s foreign law practice certificate, and his or her judicial record or substitute papers. Practice permits granted to foreign lawyers working in Vietnam will have a validity of five years and may be extended once, with each extension not exceeding five years.

The Ministry of Justice will be responsible for considering applications and granting practice permits to foreign lawyers. In case of refusal, it will notify in writing the reasons for the refusal to the applicants. After getting practice permits, foreign lawyers must register their practice with provincial-level Justice Services of the localities where their organizations are headquartered.

Under the provisions of the draft Unified Enterprise Law and Common Investment Law, which are due to be submitted to the 8th session of the National Assembly for passage, foreign lawyers organizations operating in Vietnam will be considered a form of enterprise. So, in our opinion, the grant of practice permits to these organizations and the registration of their operation and operation changes should comply with the provisions of these two laws. The draft Law on Lawyers should specify the cases in which practice permits will not be granted so as ensure transparency and provide legal grounds for settlement of claims.-

 

CONFERENCE ON INTERNATIONAL TRADE LAW

A weak legal system and poor enforcement of laws could slow the pace of foreign investment, said an Australian lawyer at an international trade law conference held in Ho Chi Minh city on October 7.

The event, organized for the first time in Vietnam by the City Bar Association and the Law Association for Asia Pacific (LawAsia), drew 350 delegates from 26 countries, including Vietnam, Japan, China, US, France, the United Kingdom, Germany, Laos, Cambodia, etc.

It dwelt on such topics as free trade areas - current issues; globalization of trade and services; money laundering and other criminal issues; the impact of trade involving US and Vietnam; Intellectual Property Bill - recent developments; international e-commerce - current issues; trade law and WTO - recent developments; and settlement of trade disputes through arbitration.

“Despite wide-ranging economic reforms aimed to encourage foreign investment, Vietnam’s investment environment remains difficult and needs improvement,” chairman for international law at the Queensland Law Society in Australia, Robert Winter told the conference.

“A growing private sector, increasing efficiency, higher returns on invested capital, and an improved legal system are all contributing to growth,” he said.

To gain the confidence of investors, the country also needs to strengthen law enforcement, equitize more State-owned companies and protect intellectual property rights, Mr. Winter said.-

VNL_KH1 

Send Us Your Comments:

See also:

Video

Vietnam Law & Legal Forum