Private International Law in Vietnam: On General Issues, Contracts and Torts in Light of ... European Developments

After the Vietnamese War, civil relations with foreign elements have increased and, consequently, private international law has gained some importance in Vietnam. However, both the relevant legal provisions and the practice of the courts in Vietnam are insufficient. Trinh Nguyen studies Vietnamese private international law in light of European developments. She focuses in particular on the general issues, contracts and torts. She describes and assesses the currently effective provisions of Vietnamese law and the corresponding judicial practice of the courts. Together with the knowledge of European private international law, with the main emphasis on the Rome I and Rome II Regulation, she makes use of comparative law to propose future developments for Vietnam based on the critical evaluation of the western doctrine. Cover Acknowledgements Table of Contents List of Abbreviations Introduction Part 1 – General Principles of Vietnamese Private International Law I. Historical Development II. Definition, Scope and Position of Private International Law in Vietnam 1. Definition a) Divergences b) Subject defined 2. Scope 3. Position III. Sources 1. International treaties 2. Domestic legislation 3. Custom 4. Judicial practice IV. Characterisation 1. A factual situation or a legal rule is characterised 2. Characterisation by lex fori or lex causae 3. Codified rules on characterisation and tentative characterisation of certain legal institutions V. The Incidental Question 1. Vietnamese practice 2. Theoretical basis VI. Connecting Factor for Personal Status 1. Nationality a) Historical development of nationality as a connecting factor b) Scope of utilisation of nationality in Vietnamese legislation c) Dual nationality (1) Vietnamese policies regarding dual nationality (2) Dual nationality in jurisdiction and applicable law d) Stateless person e) Nationals of countries with a composite system of private law 2. Permanent residence, domicile, and habitual residence a) Residence in role of connecting factor b) Residence in jurisdictional rules c) In recognition and enforcement issues d) Some suggestions e) Illegal resident (1) Illegal Vietnamese residents abroad (2) Illegal foreign residents in Vietnam VII. The Application of Foreign Law 1. The duty of ascertaining foreign law in Vietnam 2. Means used to ascertain the content of foreign law 3. Interpretation of foreign law 4. In the event that foreign law cannot be ascertained – the application of the lex fori 5. Cassation and review of the application of foreign law 6. Some solutions VIII. Renvoi 1. Statutory bases 2. Renvoi in contract 3. Future of renvoi in Vietnam IX. Public Policy 1. Codification of public policy in Vietnam 2. Form of public policy in Vietnam and the distinction between public policy and mandatory rules 3. Relative character of public policy a) The need to consider the actual circumstances of the case b) Connection between the dispute and forum jurisdiction 4. Standard of public policy 5. Effect of public policy 6. In recognition and enforcement of foreign judgments 7. Some reflections on Vietnamese public policy X. Concluding Remarks Part 2 – Contracts I. Overview II. Scope of the Law Governing the Contract III. Party Autonomy 1. Modality and form of choice a) Dispute-resolution clause b) Other indicators of a tacit choice of law 2. Multiple choice of law for a single contract 3. Variation of the chosen law 4. Validity of the choice of law 5. Choice of non-state law a) Concept of non-state law b) Vietnamese legislation on non-state law as the applicable law c) International treaties in Vietnamese choice of law rules d) International commercial practices as the chosen law e) Choice of other sorts of non-state law f) Proposing a position on choice of non-state law for Vietnam 6. Limitations on the power to choose the applicable law a) Connection to the law chosen b) Domestic contracts (1) The foreign elements of the contract (2) The technique of limiting the choice of law as regards domestic contracts (3) The unilateral character of the limitation under Vietnamese law c) Other contracts where the choice of law is restricted (1) Foreign investment in Vietnam (2) Contracts entered into and performed entirely in Vietnam (3) Contract relating to immovables in Vietnam d) Contract where one party is presumed to be weaker IV. The Proper Law in the Absence of an Effective Choice of Law by the Parties 1. The use of the law of the place of performance in Vietnam 2. Difficulties in ascertaining the place of performance 3. Development orientation for Vietnam regarding the law applicable to contracts in the absence of a choice of law a) Adopting the principle of closest connection b) Adopting the characteristic performance test (1) Identifying the characteristic performance (2) Geographical location of the characteristic performance (3) Limitation of doctrine of characteristic performance for the circumstances of Vietnam (4) Suggestion for Vietnam c) Whether or not to have fixed rules? d) How to cope with contracts not falling into the list of fixed rules e) The order and co-ordination of the closest connection principle, the characteristic performance test, and fixed rules f) Escape clause (1) The danger of misapplying the escape clause and practical worries for Vietnam (2) Demand for cautious application and stricter wording (3) Appropriate approach for the displacement (4) Concerns regarding the connecting contracts. g) Default rule V. Concluding Remarks Part 3 – Tort I. Introduction II. Vietnamese Conflict Rules for Tort III. Approaches to Tort Conflicts 1. Double actionability rule 2. Lex loci delicti as a universal encounter a) Place of acting b) Ubiquity approach c) Place of damage – Approach of Rome II 3. Place of residence of the victim 4. Proper law approach IV. Proposal for Vietnamese Law 1. Place of harm as the primary rule 2. The suitable connecting factor for the tort conflicts rule from the perspective of the international jurisdiction of Vietnamese courts over tort cases 3. Direct/indirect damage and locating direct damage a) Differentiating between direct and indirect damage b) Locating damage (direct) (1) Personal injury and damage to property (2) Economic loss (3) Suggestion for Vietnam c) Maritime torts 4. Damage in different countries V. Flexibilisation 1. Exceptions for specific torts 2. Common habitual residence a) Vietnamese rule of common nationality b) Proposed common habitual residence rule for Vietnam 3. Escape clause a) Accessory connection: pre-existing relationship b) Suggestion for Vietnam VI. Concluding Remarks General Conclusion Annex – Translation of Relevant Provisions Vietnamese Civil Code 2005 Civil Code Part Three: Civil obligations and civil contracts Chapter XVII: General provisions Article 395 – Offer modification proposed by the offeree Article 396 – Acceptance of offers to enter into contracts Part Seven: Civil relations involving foreign elements Article 758 – Civil relations involving foreign elements Article 759 – Application of civil law of the Socialist Republic of Vietnam, treaties, foreign laws and international practices Article 760 – Bases for the application of laws to stateless persons or foreigners with two or more foreign nationalities Article 761 – Civil legal capacity of foreigners Article 762 – Civil act capacity of foreigners Article 763 – Determination of persons as having no, having lost or having been restricted in, civil act capacity Article 764 – Determination of persons as missing or dead Article 765 – Civil legal capacity of foreign legal persons Article 766 – Property ownership rights Article 767 – At-law inheritance involving foreign elements Article 768 – Testamentary inheritance Article 769 – Civil contracts Article 770 – Forms of civil contract Article 771 – Civil contracts entered in absentia Article 772 – Unilateral civil transactions Article 773 – Compensation for damage outside contract Article 774 – Copyright involving foreign elements Article 775 – Industrial property rights and the rights to plant varieties, which involve foreign elements Article 776 – Technology transfer involving foreign elements Article 777 – Statute of limitations for lawsuits Vietnamese Civil Procedure Code 2004 Civil Procedure Code Part One: General Provisions Chapter I: Task and effect of the Civil Procedure Code Article 2 – Effect of the Civil Procedure Code Chapter III: Court’s jurisdiction Article 35 – Territorial jurisdiction of courts Article 36 – Jurisdiction of courts selected by plaintiffs or requesters Part Five: Procedures for resolution of civil matters Chapter XX: General provisions on procedures for resolution of civil matters Article 283 – Grounds for protest according to cassation procedures Chapter XIX: Reopening procedures Article 305 – Grounds for protest according to reopening procedures Part Six: Procedures for recognition and enforcement in Vietnam of civil judgments or decisions of foreign courts and/or foreign arbitral awards Chapter XXVII: Procedures for consideration of petitions for recognition and enforcement in Vietnam of civil judgments or decisions of foreign courts Article 356 – Foreign courts’ civil judgments or decisions which shall not be recognized and enforced in Vietnam Part Nine: Procedures for resolving civil cases and matters involving foreign elements and judicial assistance in civil procedures Chapter XXXIV: General provisions on procedures for resolution of civil cases and matters involving foreign elements Article 407 – Civil procedure-legal capacity and civil procedural act capacity of foreign citizens and stateless people Chapter XXXV: Jurisdiction of Vietnamese courts to settle civil cases and/or matters involving foreign elements Article 410 – General provisions on the Vietnamese courts’ jurisdiction to resolve civil cases and/or matters involving foreign elements Article 411 – Exclusive jurisdiction of Vietnamese courts Vietnamese Law on Marriage and Family 2000 The Marriage and Family Law Chapter II: Getting married Article 9 – Conditions for getting married Article 10 – Circumstances where marriage is forbidden Article 11 – Marriage registration Chapter XI: Marriage and family relations involving foreign elements Article 100 – Protection of the legitimate rights and interests of the parties to the marriage and family relations involving foreign elements Article 101 – Application of foreign laws to the marriage and family relations involving foreign elements Article 102 – Competence to settle matters related to the marriage and family relations involving foreign elements Article 103 – Marriage involving foreign elements Article 104 – Divorce involving foreign elements Article 105 – Child adoption involving foreign elements Article 106 – Guardianship in the marriage and family relations involving foreign elements Bibliography Index Trinh Nguyen untersucht das Internationale Privatrecht Vietnams vor dem Hintergrund europäischer Entwicklungen. Sie beschreibt und bewertet gegenwärtige Regelungen im vietnamesischen Recht und die dazugehörige Gerichtspraxis. Anhand einer kritischen Auseinandersetzung mit der westlichen Rechtslehre macht sie Vorschläge für das zukünftige vietnamesische Recht.