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§ 80:1 Legislation
Under Vietnamese law, civil judgments issued by courts of certain foreign countries may be enforced in Vietnam. Before a judgment can be enforced, it must be recognized, and its enforcement in Vietnam must be permitted, by a decision of the competent People's Court.
The law governing the matter is the Civil Litigation Code of 15 June 2004 of the National Assembly. The Civil Litigation Code provides that only civil judgments of a foreign court can be enforced in Vietnam. The Civil Litigation Code defines "foreign civil judgments" as "judgments and decisions on civil, marriage, family, business, commerce, and labor issues, decisions on property in a criminal sentence, and any other decisions of foreign courts which, according to Vietnamese laws, are civil judgments".1
§ 80:2 Principles of recognition and enforcement of foreign judgments—Treaties
The recognition and enforcement of foreign judgments must meet various conditions as provided in the Civil Litigation Code. A Vietnamese court may consider enforcement of a foreign judgment in Vietnam if the judgment is from a country with which Vietnam has a bilateral treaty regarding enforcement of judgments or from a country which, together with Vietnam, is a signatory to an international treaty on the subject. Such treaties must provide that each party will recognize and enforce judgments of the other party.1
At the time of writing, Vietnam had signed judicial aid treaties on civil, family, and criminal law with several countries, including:
- Czech Republic;
- North Korea;
- The Philippines;
- Ukraine; and
- United Kingdom.
Such treaties meet the above requirement.
§ 80:3 Principles of recognition and enforcement of foreign judgments—Recognition by regulation
Civil judgments of courts of countries not covered in the list above can be recognized by Vietnamese courts if Vietnamese regulations so provide.1
Article 343 of the Civil Litigation Code stipulates that enforcement of foreign judgments from a country which has not signed a treaty on enforcement of judgments with Vietnam and foreign judgments from a country which has not signed to an international treaty with Vietnam may, nevertheless, still be possible.
§ 80:4 Procedures for recognition of foreign judgments
To enforce a foreign judgment in Vietnam, the judgment holder ("the applicant") must first obtain a decision on recognition and enforcement of the judgment from an appropriate Vietnamese court.
For this purpose, the applicant must submit a request to the Ministry of Justice of Vietnam,1 together with documents required by the relevant treaty. If the treaty does not prescribe specific enclosures, the following documents must be led:
- A certified copy of the foreign judgment;
- Certification that the foreign judgment has come into force and should be executed in Vietnam and that the time limit for execu- tion has not expired, unless such information is indicated clearly in the foreign judgment;
- Evidence that a copy of the foreign judgment has been delivered to the judgment debtor; and
- Evidence that, if the judgment debtor did not attend the hearing or trial, the judgment debtor was properly summoned to, or informed of, such hearing or trial.2
The application and enclosures in a foreign language must be legalized by the appropriate Vietnamese Embassy and translated into Vietnamese, and the translation must be duly certified.3
Within seven days from receipt of a completed application, the Ministry will pass the file to the court authorized to deal with the proceedings.4 The authorized court may be the People's Court in ei- ther the province or the city where, in the following order5 of priority:
- The judgment debtor, being an individual, resides or, in the case of a legal entity such as a company, its head office is located;6
- The judgment debtor, being an individual, works; or
- Assets relating to the enforcement are available.7
The authorized court is required to accept the case for hearing.8 First, there is a pre-hearing, which will take place within four months from the date of acceptance of the case. The time limit may be extended by a further two months.9 This extended period will apply if there is a demand from the court for any further explanation by the applicant or by the foreign court which made the foreign judgment concerning any unclear issues. During the pre-hearing period, the court may issue one of the following decisions:
- Suspend the hearing if the applicant has revoked the request for enforcement of the foreign judgment;
- Suspend the hearing if the judgment debtor has voluntarily fulfi lled his duties or has died but his rights and duties cannot be inherited;
- Suspend the hearing and return the file to the Ministry if it is not within the competence of the court or if the court cannot find the address of the judgment debtor or the location of the property concerned; or
- Conduct a hearing.10
In the event the court decides to conduct a full hearing, such hearing must commence within one month from the date of the court's decision.11
While considering the request, the court may not consider the merits of the case, as that has been already dealt with by the foreign court. The court may only review the foreign judgment and the documents which have been submitted to ensure that they conform to the provisions of the Civil Litigation Code, other Vietnamese regulations, and the relevant treaty.12
The court may issue either a decision on recognition and enforcement of the foreign judgment in Vietnam or a decision on its nonrecognition.13 The court may decide not to recognize the foreign judgment in the following cases:
- The foreign judgment is not effective according to the law of the country where the foreign judgment was made;
- The judgment debtor or his legal representative did not attend the trial or hearing before the foreign court because he was not legally summoned;
- The case can only be adjudicated by a Vietnamese court;
- The case also was considered by a Vietnamese court, and the judgment issued has become effective;
- The case was settled by another foreign court whose judgment has already been recognized by the Vietnamese court;
- Before the foreign court accepted the case (and gave its judgment), the case had already been accepted and considered by a Vietnamese court;
- The time limit for enforcement of the foreign judgment has expired according to the law of the country where the foreign judgment was made or according to Vietnamese law; or
- The recognition and enforcement of the foreign judgment in Vietnam is contrary to fundamental principles of Vietnamese law.14
The court's decision is final and binding, unless it is appealed to the People's Supreme Court. The appeal can be made by either party or by the People's Prosecutor.15 The appeal must be made within 15 days from the date of the court's decision, or 30 days if the appeal is made by the People's Supreme Prosecutor.16 If the parties were not present at the hearing, the 15-day period starts to run from the date on which they received a copy of the court's decision.17
According to the Civil Litigation Code, the parties who were absent from the hearing are deemed to have received a copy of the court's decision by signing a certification of receipt upon delivery of the decision.18 If the court's decision cannot be delivered directly to the absent parties, it must be displayed at the office of the local People's Committee in the locale where the absent parties reside.19
Note that article 355.3 of the Civil Litigation Code provides that the judgment debtor must be present at the hearing or can ask the court to conduct the hearing without his presence. The Civil Litigation Code is silent on whether the applicant must attend the hearing. However, article 357 states that, in the event the parties are abroad, a copy of the court's decision must be sent to them via the Ministry.20
§ 80:4 International Execution Against Judgment Debtors
The appeals court has the right to uphold or to revise partly or wholly the decision of the rst instance.21 The decision of the People's Supreme Court on the appeal is final and binding.22
§ 80:5 Enforcement of a foreign judgment
The Civil Litigation Code states that a foreign judgment which has been recognized by a Vietnamese court and which the court allows to be enforced will take effect in Vietnam in the same way as a judgment of a Vietnamese court.1
The enforcement of the judgment must follow the Law on Enforcement of Civil Judgments of 14 November 2008, with effect from 1 July 2009 (the "Law on Enforcement").2
According to the Law on Enforcement, once a decision on recognition comes into effect, the applicant must le the following documents with the Department of Enforcement to implement the court's decision:
- A request for enforcement;
- A copy of the court's decision; and
- A copy of the foreign judgment, with certified Vietnamese translation.3
Within five working days from receipt of the dossier and request for enforcement, the Chief of the Department must issue a decision and assign an enforcer to execute the foreign judgment against the judgment debtor. On receipt of the decision, the enforcer must notify the judgment debtor and give him a period of no more than 15 days to comply voluntarily. If the judgment debtor does not do so, the judgment will be enforced.4 If the judgment is enforced, the judgment debtor must bear all costs of enforcement.5
To prevent the judgment debtor from concealing or destroying his property, the enforcer has the right to promptly seize assets. Seized assets will be auctioned,6 especially in the event the parties fail to agree on the delivery of the assets.7
To enforce a foreign judgment, an individual judgment holder or an organization has ve years from the date the court's decision comes into force in which to enforce the judgment.8
Furthermore, article 348 of the Civil Litigation Code stipulates that the state must ensure the transfer abroad of monies and assets received from the enforcement of the foreign judgment. However, no regulation to implement article 3 4 8 has yet been introduced . Therefore, at present, there is no certainty that the state will assist in the transfer abroad of money and assets obtained as a result of enforcement of a foreign judgment.
§ 80:6 Court fees, lawyers' costs, and interest
The terms "cost" and "fee" are de ned by the Ordinance on Costs and Fees of 28 August 2001 of the Standing Committee of the National Assembly. The Ordinance on Costs and Fees states that:
'Cost' is an amount of money which an organization/individual must pay in respect of services provided by another organization/individual.1
'Fee' is an amount of money which an organization/individual must pay in respect of (public) services provided by a state authority or an authority delegated by the state.2
Court fees are governed by Ordinance Number 10/2009/PL UBTVQH12 of 27 February 2009 on Court Costs and Fees. According to the List of Court Costs and Fees issued together with the Ordinance, the applicant must pay fees at the following rates when it submits a request to the Ministry:
- VND 2-million for individuals residing permanently in Vietnam, or organizations having their head office in Vietnam; or
- VND 4-million for individuals not residing permanently in Vietnam, or organizations not having their head office in Vietnam.
The fee (called a filing fee) must be paid in full in a lump sum. A carbon copy of the fee collection receipt must be sent to the court, together with the dossier. The fee is not reimbursed to the applicant whether or not the court approves the request for recognition and enforcement.3
Regulations concerning litigation generally provide that the appellant must pay the appeal court costs which, in the case of a civil judgment appeal, are VND 200,000. If the appellant does not pay, the request for appeal will be withdrawn, unless the appellant is exempt.
§ 80:6 International Execution Against Judgment Debtors
The party who appeals against a decision regarding recognition must pay the appeal court fees in advance. The fees are VND 200,000.
The fees will be reimbursed to the appellant if the appeal is successful.4
With regard to lawyer's costs, the Law on Lawyers of 29 June 2006, issued by the National Assembly, stipulates that a lawyer's remuneration may be agreed between a lawyer and his client. It is usually calculated on the basis of:
- The number of hours spent by the lawyer;
- The pre-agreed remuneration for a specific case;
- A percentage of the value of the lawsuit or contractual or project value; or
- A long-term contract with fixed remuneration.5
In addition to remuneration, client and lawyer may reach agreement to pay travel costs, accommodation, and other reasonable expenses.6
In Vietnam, there is no requirement that the winning party's lawyer's costs should be paid by the losing party. Rather, the law provides that the cost of a lawyer will be borne by the party that hired the lawyer, unless the parties agree otherwise.7 Reference to lawyers' costs can be found in the Schedule of Arbitration Fees and
Costs issued in connection with the Arbitration Rules of the Vietnam International Arbitration Center at the Chamber of Commerce and Industry of Vietnam. Pursuant to the Schedule, a lawyer's costs are referred to as "expenses"8 which each party must bear.9 Interest on a judgment debt is not regulated by Vietnamese law.
§ 80:7 Conclusion
In brief, the legal system in Vietnam is in its formative stages. The incomplete system of law is further complicated because laws, ordinances, and other regulations are not self-contained.
Additional and implementing legal documents are often required. This is the case with the Civil Litigation Code. Thus, implementing provisions must still be promulgated.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.