Nguyen Thi Khanh Ngoc, LL.M. Law Faculty, University of Economics and Law, Vietnam National University, Ho Chi Minh City
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| An inter-country couple’s divorce is at court in Nghe An province__Photo: https://congan.nghean.gov.vn |
The growing number of civil relations involving foreign elements entails the emergence of civil cases and matters involving foreign elements. Once civil and commercial cases and matters of this kind occur more frequently, legal institutions for dispute settlement must be more flexible to meet requirements of disputing parties. One of those requirements is the application of foreign laws in the settlement of disputes in general and in trial activities of courts in particular.[1]
Vietnam’s current regulations on application of foreign laws
The application of foreign laws means application of laws of countries other than Vietnam and territories around the world. The 2015 Civil Code (the Civil Code) specifies three cases where foreign laws may be lawfully applied in Vietnam:
(i) There is a conflict of laws clause in a treaty to which Vietnam is a contracting party or in Vietnam’s law that is referred to. Article 664.1 of the Civil Code stipulates that a foreign law may be applied in accordance with a treaty to which Vietnam is a contracting party or in accordance with Vietnam’s law. This is a case where there are uniform regulations on a conflict of laws clause in a treaty or in a domestic law that refers to the application of foreign laws;
(ii) Parties to a relation have reached an agreement on the choice to apply foreign laws (choice of law), provided such agreement satisfies the conditions for choice of law. Article 664.2 of the Civil Code states: “Where a treaty to which the Socialist Republic of Vietnam is a contracting party or Vietnam’s law provides that parties to a civil relation involving foreign elements have the right to choice of law, the applicable law shall be the one chosen by the parties”. Obviously, the choice of law is extended to any sphere and not limited if it is specified by treaties or Vietnam’s laws. This provision is totally fair for the interests of parties to such civil relations as inheritance, compensation for non-contractual damage, etc., and follows the trend of private international law regarding the choice of law accepted by the advanced countries around the world; and,
(iii) Relevant treaty(ies) to which Vietnam is a contracting party and Vietnam’s laws have no conflict of laws clause that is referred to and parties to a civil relation involving foreign elements have reached no agreement on choice of applicable foreign laws but competent agencies may still apply a foreign law when they can prove that such law constitutes a source that is the most relevant to such civil relation[2].
It can be seen that the Civil Code’s provisions on choice of law have set a premise for the application of foreign laws in the settlement of civil relations involving foreign elements in general. In addition, regarding other specialized legal relations involving foreign elements like commerce, maritime, civil aviation, marriage and family, and investment relations, lawmakers have also included provisions on application of foreign laws in relevant specialized laws[3].
The above provisions are regarded as necessary conditions for a foreign law to be applied by Vietnamese authorities. Besides, the sufficient conditions for application of a foreign law in Vietnam is that such application does not fall into any of the cases not eligible for application of foreign laws specified in Article 670 of the Civil Code as analyzed below.
First, consequence(s) of the application of such foreign law is/are contrary to the fundamental principles of Vietnam’s law. Fundamental principles of Vietnam’s law are not interpreted in the Civil Code but mentioned under the Supreme People’s Court’s Resolution 01/2014/NQ-HDTP dated March 20, 2014, guiding a number of provisions of the Law on Commercial Arbitration[4].
Second, provisions of such foreign law cannot be identified although necessary measures have been applied in accordance with procedural law.
As stated in Article 481 of the Civil Code, the responsibility to identify and provide foreign law provisions to the court for application to settle a civil case or matter involving foreign elements rests with the parties involved in such case or matter (civil litigants). In case a foreign law is applied in accordance with Vietnam’s law or with reference to a treaty to which Vietnam is a contracting party, civil litigants have the right to provide relevant foreign law provisions to a Vietnamese court while the latter may request the Ministry of Justice, Ministry of Foreign Affairs or an overseas Vietnamese representative mission or Vietnamese or foreign agencies, organizations and individuals to provide relevant foreign law provisions. Past six months from the date of request, if no relevant foreign law provisions can be found, Vietnam’s law provisions will be applied.
It can be said that provisions of general laws or specialized laws of Vietnam serve as firm legal bases for the application of foreign laws in trial activities of Vietnamese courts.
Application of foreign laws in settlement of civil cases and matters by Vietnamese courts
It is worth mentioning that the application of Vietnam’s laws for settlement of civil cases and matters involving foreign elements is appropriate because most of such cases and matters involve disputes over land use rights in Vietnam, ownership of houses together land use rights in Vietnam, inheritance of property in Vietnam, and divorces. For real estate-related disputes, the application of Vietnam’s laws is regarded as best adhering to principles of settlement of disputes of this kind. Likewise, the application of Vietnam’s laws to settle divorce cases involving foreign elements that are mostly between Vietnamese citizens at home and overseas Vietnamese or between Vietnamese citizens and foreign citizens is compliant with Vietnam’s laws as well as treaties on mutual legal assistance in civil matters to which Vietnam is a contracting party.
Regarding the application of foreign laws to settle civil cases and matters involving foreign elements by the parties’ choice of law, Vietnam’s current laws have so far had no specific provisions on conditions for choice of foreign laws for application. This has affected the right to free will, which is a fundamental principle in civil relations, of the involved parties.
Meanwhile, the application of foreign laws by Vietnamese courts to settle civil cases or matters involving foreign elements has posed the requirement that foreign law provisions provided by the involved parties in accordance with the Civil Code are treated either as evidences or as sources of law for application.
If foreign law provisions are regarded as evidences, the responsibility to provide evidences rests with civil litigants in accordance with the procedural law. However, the Civil Code stipulates that such responsibility rests with civil litigants only when foreign law provisions applicable to their relations are chosen by themselves. The involved parties are not obliged but have the right to provide foreign law information, particularly when foreign law provisions are invoked by the conflict of laws clause or regarded as being the most relevant to civil relations involving foreign elements concerned. Then the responsibility to seek information about applicable foreign laws rests with the court.
If foreign law provisions are considered a source of law, it is necessary to review the whole legal system of the foreign country of origin before such provisions are applied in Vietnam. This would pose a great challenge for Vietnamese courts that settle civil cases or matters involving foreign elements, especially when the Civil Code does not specify subjects obliged to pay expenses for searching and providing information about foreign law provisions even though it empowers courts to request other agencies and organizations to coordinate with them in doing so.
In addition, before foreign law provisions provided by civil litigants to Vietnamese courts can be applied in the settlement of civil cases or matters involving foreign elements, the validity of documents containing such provisions must be verified under Article 481.1 of the 2015 Civil Procedure Code[5] and such documents must be translated into Vietnamese and lawfully notarized or consularly legalized with translators’ signatures[6].
Recommendations for proper application of foreign laws in settlement of civil cases and matters involving foreign elements
As the application of foreign law provisions by Vietnamese courts might prolong the settlement of civil cases and matters involving foreign elements, there should be solutions to facilitate the search for and application of foreign laws, thereby guaranteeing legitimate rights and interests of civil litigants without affecting court proceedings.
Firstly, it is necessary to add provisions on conditions for application of foreign laws in case civil litigants have reached agreement on choice of law. The recognition by Vietnam’s law of the freedom of choice of law of parties to civil relations involving foreign elements conforms to laws of foreign countries around the world and adheres to the principle of free will of the parties. However, in order to improve the practicality of the choice of law and increase the possibility of application of foreign laws by Vietnamese judges, Vietnamese lawmakers should issue more specific provisions on conditions for choice of law applicable to parties to civil relations entitled to the choice of law. This aims at providing a legal basis for Vietnamese judges to apply or refuse to apply foreign laws.
Secondly, it is suggested to clarify the obligation to provide foreign law information and conditions on forms of foreign law provisions to be provided to Vietnamese competent agencies.
Thirdly, more specific guidance should be issued to help courts identify foreign law provisions they need, such as those on building of websites on foreign law information, coordination with legal experts and law training institutions in studying foreign law provisions, etc.
Fourthly, it is a need to encourage domestic institutions engaged in jurisprudential and comparative law research to translate and publish essential legal norms of the foreign legal systems that are the most influential on civil relations involving foreign elements. Moreover, more comparative law research centers should be developed to provide foreign law information to the Vietnamese court system when necessary. For its part, the Supreme People’s Court should expand cooperation with foreign courts in exchanging legal information and trial practices and training foreign law knowledge for Vietnamese judges.
Last but not least, the development of more court precedents concerning the application of foreign laws should be accelerated so as to ensure consistency in law application[7].-
[1] The Vietnamese version of this article is published on tapchitoaan.vn.
[2] Application of law of the country that has the closest relationship with a specific civil relation involving foreign elements means that Vietnamese lawmakers use legal terms and knowledge of private international law (for example, the common law system or the European Union’s legal system) in the settlement of conflicts of law.
[3] Such as the Commercial Law, Investment Law, Marriage and Family Law, Maritime Code of Vietnam, Civil Aviation Law, etc.
[4] Article 14.2.dd of this Resolution provides: “Arbitral award contrary to the fundamental principles of Vietnam’s law means an award that violates the fundamental code of conduct that is universally valid for the formulation and application of Vietnam’s law.”
[5] Documents containing foreign law provisions found by civil litigants not from official data sources or documents ineligible for being consularly legalized can hardly be accepted by Vietnamese courts for use in the settlement of civil relations involving foreign elements.
[6] Poor-quality or inconsistent translations of documents containing foreign law provisions are likely to greatly affect the application of such provisions by Vietnamese judges, especially when such documents and important legal terms referred to therein are not written in English or a common foreign language.
[7] For example, the Supreme People’s Court has issued Court Precedent 13/2017/AL on application of international law in the settlement of civil cases and matters.
