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The issue of applying foreign law in resolving civil cases in Vietnamese Courts

The application of foreign laws in the resolution of civil cases in Vietnamese courts is becoming increasingly common amidst the context of international economic integration and development. However, the implementation of applying foreign laws in Vietnam still faces many challenges and has not been officially applied in many cases.

This poses a series of challenges and new opportunities for Vietnam’s judicial system, requiring the need for amendments and supplements to detailed provisions on the application of foreign laws in the process of resolving civil cases in Vietnam. The following article will analyze in detail the content of applying foreign laws in civil disputes with foreign elements in Vietnam under the 2015 Code of Civil Procedure, No. 92/2015/QH13 (“2015 Code of Civil Procedure“), the difficulties, obstacles in implementation, and some proposed solutions.

Legal framework for the application of foreign laws in Vietnam

Provisions on the application of foreign laws in Vietnam are stipulated in various legal normative documents.

For example, Articles 667 and 770 of the Civil Code 2015, No. 91/2015/QH13, regulate the application and cases where foreign laws are not applied. Article 4, Clause 5 of the Investment Law 2020, No. 61/2020/QH14, stipulates that contracts involving at least one party being a foreign investor may agree to apply foreign laws or international investment practices if such agreements do not contravene Vietnamese laws.

Provisions on the application of foreign laws are also stipulated in various laws and legal codes such as the Maritime Law, Commercial Law, Marriage and Family Law, Technology Transfer Law, etc.

However, despite these provisions, the implementation and application of these contents in practice are still rudimentary, lacking practicality because these provisions generally do not closely reflect reality, only providing general directions without specific guidance on implementation.

It was not until 2015 when the 2015 Code of Civil Procedure was promulgated that Vietnam officially had relatively strict provisions on the application of foreign laws. Specifically:

“Article 481. Determining and providing foreign laws for courts to apply in resolving civil cases with foreign elements

In cases where Vietnamese courts apply foreign laws to resolve civil cases with foreign elements according to Vietnamese law, international treaties to which the Socialist Republic of Vietnam is a member, the responsibility for determining and providing foreign laws shall be as follows:

1. If the parties have the right to choose the applicable foreign law and have chosen to apply that foreign law, they shall have the obligation to provide that foreign law to the court handling the civil case. The parties shall be responsible for the accuracy and legality of the foreign laws provided.

In cases where the parties do not agree on the foreign law or, if necessary, the court shall request the Ministry of Justice, the Ministry of Foreign Affairs, the diplomatic representative office of the Socialist Republic of Vietnam abroad, or through the Ministry of Foreign Affairs to request the diplomatic representative office of the foreign country in Vietnam to provide the foreign laws;

2. In cases where Vietnamese law, international treaties to which the Socialist Republic of Vietnam is a member stipulate the application of foreign laws, the parties have the right to provide foreign laws to the court or the court may request the Ministry of Justice, the Ministry of Foreign Affairs, or the diplomatic representative office of the Socialist Republic of Vietnam abroad to provide foreign laws;

3. The court may request agencies, organizations, or individuals with expertise in foreign laws to provide information on foreign laws;

4. Upon the expiry of 6 months from the date the court requests the provision of foreign laws under this Article without results, the court shall apply Vietnamese law to resolve the civil case.”

The issue of identifying and providing foreign law to the Court to resolve civil disputes with foreign elements

The issue of determining and providing foreign laws to the court for the resolution of civil disputes with foreign elements is approached differently by most countries worldwide.

The first perspective revolves around the notion that the parties involved in the dispute have the right and obligation to seek, determine, and provide foreign laws to the court.

The second perspective holds that the judicial authority, namely the court, is responsible for actively seeking and identifying foreign laws to use as a basis for adjudication.

Under the first perspective, the parties are expected to actively seek and determine the accuracy and validity of foreign laws for the court, treating it as a matter of factual evidence in the dispute. Failure or inability of the involved parties to do so may lead the court to assess that they have not provided sufficient valid evidence and thus may not be accepted.

This perspective, known as the “Fact Doctrine,” developed by judges when foreign laws are proven and acknowledged as evidence in a case, is applied by some countries like the United States, United Kingdom, Australia, the Netherlands, and EU countries.

Assigning the responsibility of providing foreign laws to the parties demonstrates openness and flexibility in resolving civil disputes but also has the drawback of ensuring accuracy, with the potential risk of prolonging the case if errors occur in the documents provided.

When parties provide evidence, the authenticity and reliability of foreign legal documents pose significant risks if not authenticated or confirmed for legality by relevant authorities. Therefore, in countries applying this policy, parties may dispute the validity or credibility of laws provided by the other party.

In the second perspective, the approach of these countries’ judicial systems is that the court, as the responsible authority, actively seeks and identifies foreign laws used to resolve the case. Thus, even if the parties do not mention or request the application of foreign laws in a dispute with foreign elements, judges and courts, responsible for resolving disputes, must proactively understand all factors that may affect the issuance of the final decision.

The choice of which policy a country adopts depends on its unique characteristics, including its legal system (common law or civil law), domestic and foreign policies that may fluctuate over time, among other factors. Therefore, assessing which perspective is more correct or better is subjective.

However, in reality, even in countries that delegate the authority or obligation to seek and determine foreign laws for judicial systems, courts tend to seek professional opinions from the parties or reputable experts in the relevant field rather than solely determining foreign laws themselves.

According to Article 481 of the 2015 Code of Civil Procedure, Vietnam follows the perspective that the parties have the right to provide foreign laws to the court for dispute resolution.

Rights and obligations to provide foreign law in civil disputes in Vietnam

Rights and obligations to provide foreign law in civil disputes in Vietnam differ from countries strictly adhering to the first or second viewpoint. Vietnam adopts a policy where, in cases where the parties have the right to choose the applicable foreign law and have chosen to apply foreign law, the parties are obliged to provide that foreign law to the court to resolve the civil dispute.

In this regard, the most significant difference is that the parties providing foreign law to the court in Vietnam is a right rather than an obligation. Only when the parties have reached an agreement and decided to provide foreign law, confirmed this with the court, does the provision become the obligation of the parties.

Granting the parties the right to choose to provide foreign law to the court reflects the legal system’s respect for the rights and acknowledges the parties’ capabilities. This is because, in most disputes, the parties are the most knowledgeable about the applied laws, having conducted in-depth research and understanding of foreign law application in the dispute.

The parties are closely tied to the case, so they would have conducted thorough research. However, due to their self-interest, the documents they submit may be invalid, biased, or advantageous to them by intentionally selecting favorable provisions and excluding unfavorable ones.

If the parties have the right to provide foreign law, the court is obligated to verify the authenticity of these documents, especially when these legal documents are essential legal bases for making final decisions.

In cases where the parties do not agree on the applicable foreign law, the court is responsible for verifying the content of foreign law, possibly through requests to the Ministry of Justice, Ministry of Foreign Affairs, diplomatic missions of Vietnam abroad, and relevant departments to provide foreign law.

Furthermore, the court is also entitled to request individuals or organizations with expertise in foreign law to provide information about foreign law.

Thus, Vietnam’s regulations emphasize flexibility in resolving civil disputes but are strict in granting the right to provide foreign law to the parties. In Vietnam’s law, if international agreements that Vietnam is a member of require the application of foreign law, the parties are granted the right to provide foreign law.

Challenges for the court in identifying individuals, organizations, or entities with expertise in foreign law

The provisions on the application of foreign law stipulated in Article 481 of the 2015 Code of Civil Procedure fundamentally meet the demand for providing a legal framework for resolving civil disputes with foreign elements, which may require the application of foreign law.

However, the content remains somewhat rudimentary, lacking specific standards or guidelines. For instance, Article 481(3) of the 2015 Code of Civil Procedure stipulates that the court may request individuals, organizations, or entities with expertise in foreign law to provide information about foreign law, but to date, there are no guidelines or criteria to determine which individuals, organizations, or entities have expertise in foreign law.

Furthermore, the 2015 Code of Civil Procedure does not provide regulations on the form of seeking expert opinions. In other legal jurisdictions, when parties provide foreign law through expert opinions, they may pay to invite experienced experts in dispute resolution, known as “expert witnesses,” who are allowed to express their opinions during trial hearings.

Naturally, these witnesses must swear that their knowledge and statements are truthful to the best of their understanding. Other disputing parties may challenge the testimony of these witnesses, raising questions to undermine their credibility or reduce confidence in their expertise.

Vietnam currently lacks detailed regulations on this issue, leading to some difficulties in implementation. For example, it is uncertain whether these expert witnesses are required to participate directly in court hearings, whether they can participate online through platforms like Zoom, Google Meet, etc., and whether they have the right to debate with opposing expert witnesses on their area of expertise.

Therefore, Vietnam needs to consider amending and issuing stricter regulations in this area. It may develop a list of individuals, organizations, or entities with qualifications related to the legal field in a foreign country to be recognized as having expertise. This list should be regularly updated to reflect global changes, thereby becoming a suitable source of foreign law.

Perspective on the legal consequences of the litigant not providing foreign legal content on time

The legal consequences of a party failing to provide foreign legal content within the prescribed deadline in Vietnam can be significant. In cases where a party has chosen the right to provide legal content to the court but fails to fulfill the obligation to provide it to the court within six months during the court’s request to resolve the case, the court will apply Vietnamese law to settle the civil case based on Article 481(4) of the 2015 Code of Civil Procedure.

In essence, since Vietnam provides the right to choose to apply foreign law in cases where foreign law may apply, instances where a party has chosen foreign law to apply to disputed legal relationships but cannot find and provide foreign law within the six-month period are acts of non-compliance with normal practices.

Ideally, the party should have known, searched for, and identified foreign legal sources for application before accepting the right to provide. The choice to provide and then failing to execute reflects the unprofessionalism of the party, as they should have started seeking legal content before the dispute reached the litigation stage.

Therefore, to settle the civil case in this situation, Vietnamese courts will apply Vietnamese law. If Vietnamese law is chosen to settle a case where foreign law should have been used, it implies that Vietnamese law is understood as fundamentally no different from foreign law.

In cases where Vietnamese law does not have specific provisions to resolve civil disputes, Vietnamese courts will apply precedents, principles similar to law, basic principles of civil law, precedents, and principles of fairness in this order based on Article 45 of the 2015 Code of Civil Procedure.

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