Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
I. Sources of private international law
1. Major legislation
In Vietnam it is well established that national law is the major source of private international law. The major provisions on private international law are contained in three acts. First, the Vietnamese Civil Procedure Code 2004 (Legal normative documents – Website of Vietnamese Ministry of Justice, available at <www.moj.gov.vn/vbpq/en/pages/vbpq.aspx>, henceforth VCPC 2004) contains Part VI, regulating the recognition and enforcement of judgments in Vietnam, decisions of foreign courts and decisions of foreign arbitrators. The VCPC 2004 also contains Part IX, which regulates civil procedure as to civil disputes with foreign elements and judicial assistance in civil procedure.
Second, the Vietnamese Civil Code 2005 (henceforth VCC 2005) contains 20 general provisions on the applicable law, while the previous Vietnamese Civil Code 1995 (henceforth VCC 1995) contains only 13 provisions. The latter lacks many important conflict rules, such as rules on succession, civil contracts entered in absentia, the determination of a person as missing or dead and the statute of limitations for lawsuits. In the VCC 2005, these rules are added, and a number of other rules are amended and supplemented. However, this set of rules is very general and outdated. In particular, art 760 contains rules on the determination of →nationality as a →connecting factor with regard to stateless persons and foreigners with two or more foreign nationalities. In the matter of capacity and civil status, arts 761 and 762 deal with the ‘legal capacity to hold rights and obligations’ and the ‘capacity to act’ of foreigners. Articles 763 and 765 deal with ‘the determination of persons as having no, having lost or having been restricted in [their] capacity to act’ and the ‘legal capacity to act of foreign corporate bodies’ respectively. Property ownership rights are covered by art 766. For succession, there are two articles (arts 767 and 768) that refer respectively to ‘at-law inheritance involving foreign elements’ and ‘testamentary inheritance’. The largest number of provisions is devoted to contract, with three articles: art 769 on civil contract, art 770 on forms of civil contracts and art 761 on civil contracts entered into in absentia. Article 772 deals with ‘unilateral civil transactions’. The issue of ‘extra-contractual liability’ is referred to in art 773. This part of the VCC 2005 also contains three provisions on ‘copyright’ (art 774), ‘industrial property rights and the rights to plant varieties’ (art 775) and ‘technology transfer’ (art 776). The final provision of this part, as well as the Code, is art 777, which is a conflict rule on the ‘statute of limitations for lawsuits’.
The third major act which contains private international law rules is the Vietnamese Law on Marriage and Family 2000 (henceforth VMFL 2000). Chapter XI of the VMFL 2000 contains seven articles regulating marriage and family relations involving foreign elements. These provisions refer to a range of issues such as →marriage (art 103), divorce (art 104; →Divorce and personal separation), →adoption (art 105) and guardianship (art 106; →Guardianship, custody and parental responsibility).
Apart from these coherent and unified sets of rules, the rest of the legislation on private international law is spread over many codes and other legal instruments, such as the Vietnamese Commercial Law 2005 (henceforth VCL 2005), the Law on Nationality 2010, the Law on Investment 2005, the Maritime Code 2005 (henceforth VMC 2005), the Labour Code 1994 (supplemented in 2002, 2006, 2007 and 2013), the Civil Aviation Act 2006, the Act on Enforcement of Civil Judgments 2005, the Residence Act 2006 and the Law on Adoption 2010 (henceforth VLA 2010). With lesser legal effects, there are a number of Ordinances and a great number of bylaws such as Decrees, Decisions, Resolutions and Circulars of the Supreme People’s Court interpreting and guiding the application of relevant laws.
Despite this fragmentation, there has been no clear agenda for a comprehensive act that unifies and modernizes these scattered rules.
2. p. 1International conventions
International treaties of which Vietnam is a member, by way of ratification or accession, prevail over national legislation where there are differences between the two sources. This principle is enshrined in art 759(2) VCC 2005 and art 2(3) VCPC 2004. There have been an increasing number of treaties of which Vietnam is a contracting state that contain rules on private international law.
From 1980 to 2013, Vietnam signed 19 treaties and agreements on legal assistance in →civil and commercial matters. The scope of application of these treaties has changed over time. The treaties in the earlier period that were signed with the former socialist countries were more comprehensive. They cover aspects of legal assistance and procedure, international jurisdiction, →choice of law, and recognition and enforcement of judgments. Their content is principally similar to each other as they are tailored on the model of bilateral treaties between Russia and other former socialist countries. These treaties were concluded with: the German Democratic Republic (15 February 1988, expired); the USSR (10 December 1981, succeeded by Russia until 2012); Czechoslovakia (12 October 1982, succeeded by the →Czech Republic and →Slovakia); →Cuba (30 November 1984); →Hungary (18 January 1985); →Bulgaria (3 October 1986); the Republic of →Poland (22 March 1993); the Lao People’s Democratic Republic (6 July 1998); the →Russian Federation (25 August 1998, entered into force 2012); →Ukraine (16 April 2000); the Mongolian People’s Republic (17 April 2000); →Belarus (14 September 2000); and the People’s Democratic Republic of →Korea (4 May 2002).
In more recent years, the treaties concluded with →China (19 October 1998); →France (24 February 1999), →Taiwan (12 April 2010), Algeria (28 February 2012, entered into 24 June 2013) and →Kazakhstan (signed 31 October 2011, not yet in force) have a narrower scope of application. They deal solely with the cooperation of judicial agencies and the recognition and enforcement of judgments, without regulating the questions of choice of law and jurisdiction.
It has been noticed in Vietnam that several countries with which Vietnam has not signed and does not want to sign legal assistance treaties are contracting states of certain conventions of the Hague Conference and that they have not signed bilateral treaties regarding these matters with other countries either.
Apart from legal assistance treaties, Vietnam has signed a great number of bilateral commercial and maritime treaties (→Maritime law (uniform law)), treaties on encouragement and protection of investment, treaties on anti-double taxation (→Double taxation treaties), treaties on exemption of visa entry, etc.
With regard to the Hague Conference, from 10 April 2013, Vietnam became its 73rd member (the application was filed on 29 August 2012). Among the numerous Hague Conventions, in 2011, Vietnam ratified the 1993 Hague Adoption Convention (Hague Convention of 29 May 1993 on protection of children and co-operation in respect of intercountry adoption, 32 ILM 1134), 18 years after it had originally signed it. This is the very first Hague Convention that Vietnam has signed and ratified, which might pave the way for the ratification of more conventions in the future. It is also notable that in order to ratify this Convention, a significant amendment to the law on intercountry →adoption had to be implemented in Vietnam. Starting with a few provisions in the VMFL 2000 and decrees detailing the implementation of these provisions, there is now a separate law on adoption, which was issued in 2010 (henceforth VLA 2010).
Vietnam is also a contracting state of one UN Convention, that is, the New York Convention (New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, 330 UNTS 3). This Convention has been transformed, if not to say, copied into the ordinance on recognition and enforcement in Vietnam of foreign arbitral judgements and subsequently incorporated into a chapter of the VCPC 2004.
In addition, Vietnam has ratified two conventions on aircraft and air transportation: the Geneva Aircraft Convention (Convention of 19 June 1948 on the international recognition of rights in aircraft, 310 UNTS 151) and the Warsaw Convention (Convention of 12 October 1929 for the unification of certain rules relating to international carriage by air, 137 LNTS 11).
Regarding regional cooperation, in recent years Vietnam has played a dynamic role in the ASEAN by actively hosting or taking part in forums and conferences, and raising suggestions and initiatives to enhance the effectiveness of cooperation of legal assistance in civil and commercial matters, especially with other p. 1ASEAN members. However, besides the treaty of legal assistance in criminal matters concluded between ASEAN members in 2004, which is the first treaty of legal assistance in the ASEAN framework, there has not been much movement on treaties in civil matters yet. Cooperation in terms of legal assistance regarding civil and commercial matters between ASEAN members is currently still implemented under the principle of →reciprocity.
One might see a future for the ASEAN in the model of the EU. However, it may be a long way for the ASEAN to come to that level of development in the field of private international law, because the modes of cooperation of the ASEAN and the EU are different in many respects. In the EU, there has been a change from the conventional method to European legislation in matters of legal cooperation. While EU legal instruments are binding, most ASEAN agreements or Action Plans are politically based and function as ‘soft law’, which means they are non-legal and have ‘public characteristics’. Moreover, EU policies are carried out through supranational authorities, a mechanism which is absent in the ASEAN. Although a direct comparison between the EU and the ASEAN in this case is, in some ways, not feasible, there is much space and prospect for future ASEAN judicial cooperation.
3. Role of case-law
International custom is acknowledged as a source of Vietnamese private international law. International commercial custom is defined by Resolution No 04/2005/NQ-HĐTP 17 September 2005 of the Judges’ Council of the Supreme People’s Court as common practice that has been repeatedly applied in international commerce and recognized by relevant international organizations.
International custom governs civil relations with foreign elements in two situations. First, following the parties’ will. According to art 769(1) VCC 2005, art 5(2) VCL 2005, art 4(2) VMC 2005, art 4(3) Law on technology exchange 2006 and art 5(3) Ordinance on foreign currency administration 2005, parties can choose international custom to govern their contracts as long as it is not contrary to the basic principles of the law of the Socialist Republic of Vietnam. Second, according to art 759(4) VCC 2005, international custom can be applied in the absence of choice to fill gaps in Vietnamese laws.
In Vietnam before 2012 the use of case-law was not recognized. Case-law is in general not a source of law. However, there exists ‘de facto case-law’. While no direct reference to judgments of national courts of different levels is permitted, the Supreme Court has developed rules of guidance issued in its Resolutions, Circulars or Annual Reports of judicial practice. These documents provide lower-level courts with guidance for dealing with certain cases. The rules contained in these documents have a strong binding force in reality. If a regional court does not take account of them, there would be a risk of its judgments being repealed by higher courts. Parties in a dispute that do not appreciate these rules tend to lose the case and vice versa.
Nevertheless, in recent times there has been a new trend in Vietnam. The use of case-law has been upheld by Decision No 74/QĐ-TANDTC 31/10/2012 of the Vietnamese Supreme Court approving the project ‘Developing case-law’ of the Supreme Court. However, case-law in Vietnam does not follow the model of English and American common law, but has a civil law orientation. First, not all cases carry precedent authority; only those Cassation Decisions of the Council of Judges of the Supreme People’s Court and of Specialized Courts of the Supreme People’s Court (the Civil Court, the Economic Court and the Labour Court) approved by the Council of Judges of the Supreme People’s Court are considered as case-law. Second, case-law is inferior to statutory rules. While courts are encouraged to cite precedent when deciding cases, the reference is only meant to ensure the consistency of the case at hand with the system. In fact, the basis for deciding cases must remain the statutory rules. Therefore, it is emphasized that the reference to case-law does not mean that Vietnamese courts decide cases on the basis of case-law, but that case-law will only serve as a guide and auxiliary source to increase the persuasiveness and the clarity of the court’s decisions.
4. Role of doctrinal writing
There have not been many doctrinal writings in private international law in Vietnam. Nevertheless, the number of scholars and research is increasing. Doctrinal writings have fostered the revision of old laws and the drafting p. 1of new ones. However, it does not have binding force on the courts and is not a source of law.
II. History of private international law
Private international law rules appeared in Vietnam relatively late compared to other countries. The first milestone was a statutory rule (art 33) contained in the Gia Long Code 1812. The rule designated the application of local laws to foreigners. Although the rule itself had a criminal nature, it was extended by the courts to be applied to civil matters as well. The second rule was found in Bộ Luật Dân sự Giản yếu (Simplified Civil Code), published in 1883. This rule (art 3(3)) regulated the extraterritorial application of local laws to Vietnamese citizens who were resident abroad. Later, the same rule was embodied in art 2 of Bộ Hoàng Việt Trung kỳ Hộ Luật (Hoàng Việt Middle Region Code), issued in 1936. It is noticeable that the French authorities imposed the second and third rules during their colonization period, and the content of those rules was identical to French law. The influence of French private international law was so intensive that it penetrated the South Vietnam Civil Code of 1972, when South Vietnam was under the control of the USA. Accordingly, arts 5–7 of this Code nearly copied the principles embodied in art 3 French CC (French Civil Code, Code Civil of 21 March 1804, henceforth French CC). Moreover, arts 18 and 19 imported arts 14 and 15 French CC to grant to Vietnamese courts far-reaching jurisdiction.
In North Vietnam, private international law did not develop in the period from 1945 to 1974 due to the War. From 1975 (the year of unification of the two parts of the country) until 1986, civil relations with foreign elements mainly arose out of relationships with other socialist countries. Private international law rules were mostly unified conflict, substantive and jurisdictional rules contained in legal assistance treaties. In addition, there were some random national conflict rules, which were unilateral.
From 1986 until the present day, because of the ‘Open Policy’, civil relations with foreign elements began to bloom. A system of rules on private international law has been developed in a number of acts. Moreover, Vietnam has strived to sign or join a significant number of international treaties and organizations, which has contributed to the improvement of private international law in the country. The influence of French private international law nowadays is no longer as prominent. Vietnamese legislators have shown their independence in referring to foreign law and selecting rules that they consider appropriate for the circumstances of the country.
III. Administration of private international law
1. Courts and non-judicial authorities
Vietnam has a civil court system. While courts at the district level are general, courts at the provincial level are specialized civil, economic or labour courts in relation to private law matters. Private international law matters are not dealt with separately in a special court; they fall within the jurisdictional powers of those designated courts. Apart from the courts, private international law matters, for instance, →choice of law and judicial procedure, are also handled by a number of non-judicial authorities, such as provincial-level justice departments, the Ministry of Justice and Consular Departments.
2. Application of foreign law
Vietnamese law currently does not contain an express general statutory provision on the manner of the application of foreign law (→Foreign law, application and ascertainment). There is no rule stating whether foreign law is applied ex officio or upon application by the parties. Meanwhile, case-law is rare and unclear on the issue. Scrutiny of the relevant provisions and cases confirms that Vietnam is following the French model, where the duty to apply foreign law is incumbent on the courts or on the parties, depending on the character of the choice-of-law rules. Where the conflict rules refer to foreign law, the courts bear the main duty of ascertaining it. Parties are nevertheless not deprived of the right to provide information on foreign law to facilitate consideration of the issue by the courts. However, courts do not always have the dominant active role. In cases where the rules grant parties the freedom of choice of law, it is incumbent on the parties to plead the chosen foreign law, and the courts may only consider the application of the pleaded foreign law. This kind of ‘mixed approach’ requires cooperation between the courts and the parties for the efficient ascertainment of foreign law.
In Vietnamese law there has been no provision to date detailing the means through which a p. 1court is to ascertain the content of foreign law. However, there is evidence that the court may prefer the method of requesting assistance from the Ministry of Foreign Affairs and the Ministry of Justice. Article 22 Decree No 138/ND-CP of 15 November 2006 sets out the duty of these agencies when it comes to assisting the courts in the task of ascertaining foreign law.
If information on foreign law cannot be obtained, Vietnam follows the most common approach: applying the →lex fori. This approach is partly embodied in art 5 Decree No 138/ND-CP of 15 November 2006, detailing the implementation of the Civil Code’s provisions on civil relations involving foreign elements. Apart from this specific rule, the application of the lex fori can be inferred from case-law and doctrinal writings.
Regarding the question of whether the lack of proof of foreign law entails the dismissal of the claim by a Vietnamese court, there has been no statutory answer. It can be concluded from court practice that where the court is obliged to ascertain foreign law and it has failed to do so, the claim will not be dismissed. Vietnamese law on the matter is applied in lieu of foreign law to resolve the case. On the other hand, where the →burden of proof is assigned to the parties, the failure of proving foreign law has led to the dismissal of the claim.
Vietnamese laws have not given any direct answer to the question of whether the application of foreign law is subject to review by the Supreme People’s Court or not. The procedure, if any, expected to take place is likely the cassation procedure. In reference to art 283(3) VCPC 2004, the Supreme People’s Court of Vietnam would discharge this duty. A serious incorrect application of the law can form the basis of an application to annul the whole judgment, decision or part thereof. Nevertheless, there has not been any such case reported in Vietnam so far.
IV. Basic principles of jurisdiction
1. General structure
Vietnamese courts are granted jurisdiction when the defendant is resident in Vietnam. With regard to foreign defendants, the jurisdiction of Vietnamese courts is established in art 410(2)(a) and (b) VCPC 2004. Article 410(2)(a) grants jurisdiction to Vietnamese courts when the defendant is a foreign agency or organization which is headquartered in Vietnam or has a managing agency, branch or representative office in Vietnam. Article 410(2)(b) grants jurisdiction to Vietnamese courts when the defendant is a foreign national or a stateless person who permanently resides, works or lives in Vietnam, or has assets in Vietnamese territory.
With regard to Vietnamese defendants, in accordance with arts 410(1) and 35(1)(a) VCPC 2004, Vietnamese courts have general jurisdiction over those individuals who reside or work in Vietnam, and over those agencies or organizations that are headquartered in Vietnam. Vietnamese courts also have general jurisdiction when the Vietnamese defendants have assets in Vietnam. This basis of jurisdiction is established in art 36(1)(a) VCPC 2004.
Moreover, the jurisdiction of Vietnamese courts is also established when there is a combination of bases. Article 410(2)(d) VCPC 2004 grants jurisdiction to Vietnamese courts over civil cases or matters related to civil relations which are established, changed or terminated on the grounds prescribed by Vietnamese law, or which happen in Vietnamese territory but involve at least one party that is a foreign individual, agency or organization. Article 410(2)(e) also grants jurisdiction to Vietnamese courts over civil cases or matters related to civil relations which are established, changed or terminated on the grounds prescribed by foreign laws or which happen in foreign countries, but involve exclusively parties that are Vietnamese citizens, agencies or organizations, and either the plaintiff or the defendant resides in Vietnam.
Exclusive fora are established entirely in art 411 VCPC 2004. Article 411(2) grants Vietnamese courts exclusive jurisdiction over a range of civil matters based on the place where the events occur or of the residence/presence of individuals or of the location of the immovable property in Vietnamese territory.
Articles 4(2) and 260(1) VMC 2005 allow parties to choose foreign courts to settle their disputes, and there have been cases where the courts respected such an agreement, thus denying jurisdiction. Nevertheless, there has been no general provision to this effect in the VCC 2005. Scholars have suggested including an express provision allowing choice-of-forum agreements with exceptions regarding labour contracts to be performed in Vietnam and cases in which the decisions of foreign courts will not be recognized or enforced in Vietnam – for example, where the disputes fall within the exclusive jurisdiction of Vietnamese courts.
2. p. 1Contract
According to art 411(1)(b) VCPC 2004, Vietnamese courts have exclusive jurisdiction over disputes arising out of transportation contracts in which the carriers are headquartered or have branches in Vietnam. This aspect of exclusive jurisdiction is criticized as being too wide and may offend the jurisdiction of foreign courts.
The jurisdiction of Vietnamese courts over matters relating to a contract is established in art 410(2)(f) VCPC 2004. This rule applies when disputes arise out of a contract whose partial or full performance takes place in Vietnamese territory. Regarding the case where a contract is partially performed in Vietnam, it is now debateable whether Vietnamese courts have jurisdiction only over the part performed in Vietnam or over the whole contract.
3. Non-contractual obligations
As regards non-contractual obligations, the jurisdiction of Vietnamese courts is established in art 410(2)(d) and (e), described above. Additionally, art 36(1)(d) VCPC 2004 is presumed to grant Vietnamese courts jurisdiction in disputes over compensation for non-contractual damage when the plaintiffs reside, work or are headquartered in Vietnam.
4. Family matters
In matters of divorce (→Divorce and personal separation), according to art 410(2)(g) VCPC 2004, Vietnamese courts have jurisdiction when at least either the plaintiff or the defendant is a Vietnamese citizen. Vietnamese courts, however, have exclusive jurisdiction in accordance with art 411(1)(c) VCPC 2004 over divorce cases between Vietnamese citizens and foreign citizens/stateless persons if both spouses reside, work or live in Vietnam. Another jurisdictional rule is art 410(2)(c) VCPC 2004, which grants Vietnamese courts jurisdiction over alimony claims or parent identification when the plaintiff, whether a foreign national or stateless person, permanently resides, works or lives in Vietnam.
There is no specific jurisdictional rule for →succession. Scholars suggest that art 633(2) VCC 2005 should be construed to grant jurisdiction to Vietnamese courts when the last place of residence of the decedent is in Vietnam or when all or part of his or her estate is located in Vietnam.
Article 411(1)(a) VCPC 2004 grants Vietnamese courts exclusive jurisdiction in civil cases involving in rem rights in properties being immovable property in Vietnamese territory. Specifically as regards the recognition of an asset in Vietnamese territory as derelict or the recognition of the current manager’s ownership over derelict immovable property in Vietnamese territory, Vietnamese courts have exclusive jurisdiction in accordance with art 411(2)(e).
There is no specific jurisdictional rule for insolvency (→Insolvency, jurisdiction and vis attractiva). It has been suggested that art 7 Vietnamese Bankruptcy Law 2004 (henceforth VBL 2004) grants Vietnamese courts jurisdiction to conduct bankruptcy proceedings for Vietnamese cooperatives having an estate or operation abroad. Vietnamese courts are also believed to have jurisdiction to carry on bankruptcy proceedings for foreign →companies operating in Vietnam. This basis for jurisdiction is established through a combination of art 4(1) VBL 2004 and art 410(2)(a) and (d) VCPC 2004.
8. Intellectual property
The general jurisdictional rules based on the residence of foreign or Vietnamese defendants are applied in this field. In addition, the jurisdictional provisions on contracts and non-contractual obligations in general could be envisaged to grant Vietnamese courts jurisdiction. Specifically, Vietnamese courts have jurisdiction as regards copyright under Vietnamese law held by a foreigner and allegedly infringed by another foreigner in accordance with art 410(2)(d) VCPC 2004 (see above, section IV.1).
V. Basic principles of choice of law
1. General provisions
Textbooks in Vietnam unanimously recognize the principle that when adjudicating disputes with foreign elements, the courts solely apply p. 1their own procedural law. Current Vietnamese legislation does not contain any general rule on characterization. In doctrinal writings, one author has suggested that the courts should employ the →lex fori approach to characterization. He believes that this approach helps simplify the work of the court. As regards →renvoi, art 759(3) VCC 2005 allows renvoi in the form of remission to the internal law of Vietnam. Pursuant to art 5(3) Decree No 60/NĐ-CP of 6 June 1997, Vietnam used to accept transmission to the law of a third state as well. However, current statutory provisions do not indicate whether transmission is accepted or not. →Public policy is contained in art 759 VCC 2005 under the term ‘basic principles of the law of the Socialist Republic of Vietnam’. The application of Vietnamese law instead of contravened foreign law used to be provided for by certain Vietnamese legal documents. Case-law and scholarly suggestions also approve this approach. Nevertheless, the issue of fraud (evasion) of the law and the application of the law of states with more than one legal system has not been addressed by current legislation.
Article 769(1) VCC 2005 allows parties to choose the law applicable to their contract. The rule does not require the chosen law to have any connection with the contract and it also allows a choice of international custom by the parties. Nevertheless, →party autonomy is excluded when a contract is entered into and performed entirely in Vietnam. In that case, Vietnamese law would apply. In addition, Vietnamese law is applied exclusively as regards contracts relating to immovable property in Vietnam. In the absence of choice, the same article designates the application of the law of the country where the contract is performed. There is no →escape clause or similar device.
In accordance with art 773(1) VCC 2005, compensation for damage sustained in the absence of a contract shall be determined in accordance with the law of the country where the act causing such damage takes place or where the actual consequences of such act arise. However, it is unclear who (the courts or the parties) has the right to choose between the two places when the two places are in different countries. Article 773(3) provides an exception to this rule, where the act causing damage occurs outside the territory of the Socialist Republic of Vietnam and the person who causes the damage and the victim are both Vietnamese citizens or legal persons; in such cases, the law of the Socialist Republic of Vietnam shall apply. This unilateral rule is believed to apply bilaterally. The specific rules for →maritime torts are established in art 773(2) VCC 2005 and art 3 VMC 2005.
The law applicable to the legal capacity of foreign corporate bodies is established in art 765(1) VCC 2005. Accordingly, legal capacity is determined by the law of the country where the foreign legal person has been established. Under art 4(20) Vietnamese Enterprise Law 2005 (henceforth VEL 2005), it is that country that also bestows its →nationality on the enterprise. Accordingly, it has been construed that the legal capacity of a corporate body is determined according to the nationality of that legal person.
Although the VCC 2005 gives only one rule specifically dealing with the legal capacity of corporate bodies, it is widely believed that the principle of nationality is also determinative of other aspects of corporations such as incorporation, representation, transformation and termination.
An exception in favour of the application of Vietnamese law is embodied in paragraph 2 of art 765(1) VCC 2005, which provides that in cases where corporate bodies establish and/or perform civil transactions in Vietnam, their legal capacity shall be determined in accordance with the law of Vietnam.
4. Family matters
Conflict rules in family matters are contained in Chapter XI VMFL 2000. Article 103 VMFL 2000 stipulates →marriage conditions by establishing a combination between the law of the →nationality of the parties and the law of the country where the marriage is effected. Accordingly, in marriages between Vietnamese citizens and foreigners, each party must abide by his or her country’s legislation on the marriage conditions. If their marriage is effected at a competent Vietnamese state agency, the foreigner must also abide by the provisions of Vietnamese law on marriage conditions. As regards marriages between foreigners in Vietnam before p. 1the competent Vietnamese agencies, foreigners must abide by the marriage conditions in the VMFL 2000 in addition to the conditions of marriage laid down in their national laws. The VMFL 2000 does not contain provisions on the law applicable to formalities of marriage. Article 11 Decree No 68/2002 implementing the VMFL 2000 nevertheless establishes a unilateral conflict rule that if the marriage registration is made before the Vietnamese competent agencies, it must conform to the formalities set forth by Vietnamese laws. Meanwhile, marriages between two Vietnamese or between a Vietnamese and a foreigner celebrated by foreign authorities will be recognized in Vietnam if the parties have their marriages annotated in registers according to the legal provisions on civil status of Vietnam. According to art 12 of this Decree, Vietnamese diplomatic or consular offices abroad are also competent to authorize marriages. Although this Decree has already been substituted by Decree No 24/2013 which does not contain such express rules, these principles are implied in the provisions of the new Decree. Conflict rules regulating issues such as the effects of marriage, the nullity of marriage and its effects are unfortunately missing. A marital property agreement between spouses in a foreign country may not be recognized in Vietnam due to public policy effects since the general perception in Vietnam is that marriage cannot be regulated by contract.
The law applicable to divorce is established in art 104 VMFL 2000. Pursuant to art 104(1), Vietnamese laws on marriage and family would apply to divorce relations between a Vietnamese citizen and a foreigner or between two foreigners permanently residing in Vietnam. Pursuant to art 104(2), in divorce cases where a party being a Vietnamese citizen does not reside in Vietnam at the time of requesting the divorce, the divorce shall be settled according to the law of the country where the husband and the wife permanently co-reside. Meanwhile, art 104(3) stipulates that the settlement of a divorced couple’s →immovable property located in a foreign country shall comply with the lex situs.
In the matters of intercountry adoption, the conditions on adopting persons are laid down in art 29(1) VLA 2010. Under this article, overseas Vietnamese or foreigners permanently residing abroad who seek to adopt a Vietnamese citizen must meet all the conditions required by the law of the country in which they permanently reside and by Vietnamese law. The use of the connecting factor of permanent residence results from the ratification in 2011 by Vietnam of the 1993 Hague Adoption Convention.
For guardianship in marriage and family relations involving foreign elements, art 106 VMFL 2000 distinguishes between guardianship effected in Vietnam and guardianship effected in foreign countries (→Guardianship, custody and parental responsibility). In the former case, art 106(1) VMFL 2000 requires the application of Vietnamese law, whereas in the latter, art 106(2) VMFL 2000 stipulates the application of the law of the country of the guardian’s residence.
Again, a number of conflict rules in family matters are missing. These are, among others, rules on the relationship between husband and wife, the relationship between parent and child and the determination of parentage.
Article 768(1) VCC 2005 provides that the capacity to make, change and cancel testaments must comply with the national laws of the testators. Article 768(2) VCC 2005 establishes that testaments must comply with the requirements as to the form of the laws of the countries where the testaments are made. Vietnamese scholars suggest changing this rule so as to allow a testament to be valid if its form conforms to the laws of one of the following countries: the country where the testament is made, the country of the last place of residence and the country of the decedent’s nationality.
With regard to at-law inheritance, the respect for the law of location of immovable property is seen in art 767(2) VCC 2005, according to which the inheritance rights to immovable property must comply with the laws of the country where such immovable property is located. As to assets other than immovable property, under art 767(1) VCC 2005, the law applicable to inheritance at law is the law of the decedent’s nationality at the time of his or her death.
6. Property rights
Article 766(1) VCC 2005 contains a general rule on property ownership rights (→Property and proprietary rights), ordering the application of the lex situs to the establishment, p. 1implementation, alteration and termination of property rights, and the contents of such rights. According to art 766(2), the lex situs also determines whether property is classified as movable or immovable. Two exceptions from the lex situs are contained in art 766(2) and (3). Accordingly, under art 766(2), as regards ownership rights in movable property in transitu, the applicable law is the law of the country of destination, if there is no other agreement. The second exception in art 766(3) is applied to the determination of the ownership rights to civil aircraft and sea-going vessels (→Property and proprietary rights in vessels) in Vietnam, according to which the determination must comply with the law on civil aviation and the maritime law of Vietnam.
7. Intellectual property
The VCC 2005 contains two rules designating the protection of copyrights and industrial property rights under Vietnamese law. Article 774 VCC 2005 establishes the application of Vietnamese law on copyright and of treaties to which Vietnam is a contracting party on the basis that the work is publicized and disseminated for the first time in Vietnam, or is created and performed in a certain form in Vietnam. Article 775 VCC 2005 provides for the protection of industrial property rights or the rights to plant varieties by Vietnamese laws and treaties to which Vietnam is a contracting party on the basis that the objects of the industrial property rights or of the rights to plant varieties have been granted protection titles or recognized by the Vietnamese state. It is believed that the unilateral character of these rules results from the lex loci protectionis principle prevailing in matters of intellectual property rights.
VI. Recognition and enforcement of judgments
Rules on the recognition and enforcement in Vietnam of foreign judgments are established in Part VI VCPC 2004. Article 343 of this Code regulates the principles that apply to the recognition and enforcement of foreign judgments in Vietnam. Accordingly, foreign civil judgments can be recognized and enforced in Vietnam in the following ways: by a treaty, by provisions of Vietnamese law and by the principle of →reciprocity. Of the three bases, the reciprocity principle is usually applied to divorce judgments. It is, however, criticized as not generating the expected results, which are to protect the legitimate rights of people and the interests of the country. The grounds for the denial of recognition and enforcement of foreign judgments are listed in art 356 CPC 2004 as follows: the foreign judgment is not final; the absence of the judgment debtors or their lawful representatives due to improper summons; the exclusive jurisdiction of Vietnamese courts; the existence of an effective or recognized civil judgment or decision on the same case or the pending proceedings before a Vietnamese court; the statutes of limitation for judgment execution have expired; and violation of public policy. As regards the procedures for recognition and enforcement, the VCPC 2004 designates separate procedures for the recognition and enforcement of executory judgments and for non-executory ones.
The most recent Vietnamese legislation on arbitration is the Law on Arbitration 2010 (henceforth VLAR 2010). The competence of arbitration to settle disputes has been widened compared to the Ordinance on Arbitration 2003. Accordingly, art 2 VLAR 2010 grants to arbitration competence to settle disputes arising from commercial activities as well as disputes between parties in which at least one party engages in commercial activities. Article 14(2) VLAR 2010 provides that the parties can choose the applicable law. In the absence of such a choice, the arbitral tribunal shall apply the law that it considers most appropriate to the dispute. Article 14(3) VLAR 2010 allows the arbitral tribunal to apply international custom when there are no concrete provisions relating to the content of the dispute in the laws chosen by the parties.
Nguyen Thi Hong Trinh
Bajuseto Hardjowahono, The Unification of Private International Law on Commercial Contracts within the Regional Legal System of ASEAN (Ulrik Huber Institute for Private International Law 2005);
Bộ Tư Pháp [Vietnamese Ministry of Justice], Bình luận khoa học một số vấn đề cơ bản của Bộ Luật Dân Sự [Scientific Comments on Fundamental Issues of p. 1the Civil Code] (Nhà xuất bản Chính Trị Quốc Gia [National Political Publishing House] 1997); Do Van Dai and Mai Hong Quy, Vietnamese Private International Law (Vietnamese National Political Publishing House 2010);
Du, Ngoc Bich, ‘Cross-Border Recognition and Enforcement of Foreign Judgments in Vietnam’ (2008) 4(3) J Priv Int L 479;
Hanoi Law School, Tư pháp quốc tế [Private International Law] (Nhà xuất bản Tư Pháp [Judicial Publishing House] 2006);
Nguyễn Trung Tín, ‘Tư pháp quốc tế Việt Nam trong chặng đường 60 năm bảo vệ, xây dựng và phát triển đất nước [Vietnamese Private International Law in the 60 Year Period of Protecting, Building and Developing the Country]’ (2005) 8 Tạp chí nhà nước và pháp luật [Vietnamese State and Law Journal] 17;
Vietnamese Ministry of Justice, Báo cáo đánh giá tình hình ký kết hiệp định tương trợ tư pháp trong lĩnh vực dân sự giữa Việt Nam và các nước và sự cần thiết gia nhập hội nghị La Hay về Tư pháp quốc tế (Report Evaluating the Signing of Mutual Judicial Assistance in Civil Fields between Vietnam and Other Countries and the Need to Join the Hague Conference on Private International Law) (2011).