Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam

Abstract

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

Keywords:

• reciprocity principle
• foreign judgments
• recognition and enforcement
• Vietnam

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 They are:

• - Agreement on Legal and Judicial Assistance on Civil and Criminal Matters between the Socialist Republic of Vietnam and the Socialist Republic of Czech and Slovakia (signed on 12 October 1982. It entered into force on 16 April 1984). The Czech Republic and Slovakia have succeeded to this Agreement.

• - Agreement on Judicial Assistance on Civil, Family, Labour and Criminal Matters between the Socialist Republic of Vietnam and the Republic of Cuba (signed on 30 November 1984, in force).

• - Agreement on Judicial Assistance on Civil, Family and Criminal Matters between the Socialist Republic of Vietnam and the People Republic of Hungary (signed on 18 January 1985, in force).

• - Agreement on Judicial Assistance on Civil, Family and Criminal Matters between the Socialist Republic of Vietnam and the People Republic of Bulgaria (signed on 3 October 1986, in force).

• - Agreement on Judicial Assistance on Civil, Family and Criminal Matters between the Socialist Republic of Vietnam and the Republic of Poland (signed on 23 March 1993; entered into force on 18 January 1995).

• - Agreement on Legal and Judicial Assistance on Civil and Criminal Matters between the Socialist Republic of Vietnam and the Federation of Russia (signed on 25 August 1998, entered into force on 27 August 2012).

• - Agreement on Judicial Assistance in Civil and Criminal Matters between the Socialist Republic of Vietnam and the Lao People’s Democratic Republic (signed on 6 July 1998; ratified by Vietnam on 3 June 1999; entered into force on 19 February 2000).

• - Agreement on Judicial Assistance in Civil and Criminal Matters between the Socialist Republic of Vietnam and the People’s Republic of China (signed on 19 October 1998; ratified by Vietnam on 30 June 1999; entered into force on 25 December 1999).

• - Agreement on Judicial Assistance on Civil Matters between the Socialist Republic of Vietnam and the Republic of France (signed on 24 February 1999; entered into force on 1 May 2001).

• - Agreement on Legal and Judicial Assistance on Civil and Criminal Matters between the Socialist Republic of Vietnam and Ukraine (signed on 6 April 2000; entered into force on 19 August 2002).

• - Agreement on Judicial Assistance on Civil, Family and Criminal Matters between the Socialist Republic of Vietnam and Mongolia (signed on 17 April 2000; entered into force on 13 June 2002).

• - Agreement on Legal and Judicial Assistance on Civil, Family, Labour and Criminal Matters between the Socialist Republic of Vietnam and the Republic of Belarus (signed on 14 September 2000; entered into force on 18 October 2001).

• - Agreement on Legal and Judicial Assistance on Civil and Criminal Matters between the Socialist Republic of Vietnam and the People’s Democratic Republic of North Korea (signed on 4 May 2002; entered into force on 24 February 2004).

• - Agreement on Judicial Assistance on Civil Matters between the Office of Economy and Culture of Vietnam in Taipei and the Office of Economy and Culture of Taipei in Vietnam (Signed on 12 April 2010; entered into force on 2 December 2011).

• - Agreement on Judicial Assistance on Civil and Commerce Matters between the Socialist Republic of Vietnam and the People’s Democratic Republic of Algeria (signed on 14 April 2010; entered into force on 24 June 2012).

• - Bilateral Agreement on Judicial Assistance in Civil Matters between the Socialist Republic of Vietnam and the Republic of Kazakhstan (signed on 31 October 2011; entered into force on 28 June 2015).

• - Agreement on Judicial Assistance in Civil Matters between the Socialist Republic of Vietnam and the Kingdom of Cambodia (signed on 21 January 2013, entered into force on 9 October 2014).

2 See Art 125 of the 2014 Law on Marriage and Family; Articles 36–47 Decree No.126/2024/NĐ-CP (dated 31 December 2014) detailed guidance on the 2014 Law on Marriage and Family. Arts 48, 49, 50 the 2014 Law on Civil Status.

3 See at: https://moj.gov.vn/tttp/Pages/home.aspx accessed on 25 April 2023.

4 See at: https://moj.gov.vn/tttp/Pages/dlcn-va-th-tai-Viet-Nam.aspx accessed on 25 April 2023.

5 They are: L. L. Ch. Alex v L. K. Wah [2012]; Ch. M Co., Ltd v A Viet Nam Co., Ltd. [2018]; U E & E PTE Co., Ltd v CDK Co., Ltd. [2018]; K. Co., Ltd v A. L. Th. Co., Ltd [2018].

6 See at: https://congbobanan.toaan.gov.vn/ accessed on 25 April 2023.

7 They are Decision No. 25/2019/QĐPT-KDTM (dated 27 May 2019) of the High Court in Ho Chi Minh City (U E & E PTE Co., Ltd v CDK Co., Ltd. [2018]) and Decision No. 708/2018/QĐKDTM-ST (dated 5 June 2018) of the Ho Chi Minh City Court of First Instance (Ch. M Co., Ltd v A Viet Nam Co., Ltd. [2018]).

8 See at: https://anle.toaan.gov.vn/webcenter/portal/anle/anle accessed on 25 April 2023.

9 See the First Instance Court of Ho Chi Minh city’s Decision No.2083/2007/QĐST-KDTM (dated 19 November 2007). The full text of this Decision was personally obtained by the author.

10 See the Appellate Court in Ho Chi Minh City’s Decision No. 62/2008/QDKDTM-PT (dated 7 August 2008). The full text of this Decision was personally obtained by the author.

11 See the First Instance Court of Ho Chi Minh City’s Decision No. 572/2012/QDST (dated 3 May 2012), p. 2. The full text of this Decision was personally obtained by the author.

12 See the First instance court of Ho Chi Minh City’s Decision No. 572/2012/QDST (dated 3 May 2012), p. 3.

13 Ibid.

14 See the Appellate Court in Ho Chi Minh City’s Decision No. 278/2012/QĐPT-HNGĐ (dated 29 September 2012). The full text of this Decision was personally obtained by the author.

15 See the Hong Kong Ministry of Justice, “Reciprocal Enforcement of Judgments – Civil and Commercial Foreign Judgments”, https://www.doj.gov.hk/en/legal_dispute/rejccfj.html accessed on 3 September 2022. See Barbara Chiu, Crystal Luk, Desmond Cheuk and Jamie Yuen, King & Wood Mallesons, “Enforcement of Judgments in Hong Kong: Overview”, https://uk.practicallaw.thomsonreuters.com/1-618-8241?transitionType=Default&contextData=(sc.Default)&firstPage=true accessed on 3 September 2022.

16 See Decision No. 1186/2016/QĐST-DS (dated 2 December 2016) of the Ho Chi Minh First Instance Court, 5–8. The full text of this Decision was personally obtained by the author.

17 See Decision No. 1186/2016/QĐST-DS (dated 2 December 2016) of the Ho Chi Minh First Instance Court, 9–17.

18 See Decision No.111/2017/QĐPT-KDTM (dated 21 June 2017) of the Court of Appeal of Ho Chi Minh City High Court, 7–9. The full text of this Decision was personally obtained by the author.

19 The situation where a lower ranking legal document contains a provision which is not consistent with a higher-ranking legal document, may occur sometimes, especially with regard to provisions on procedures for co-operation between governmental bodies of Vietnam.

20 Article 439 of the 2015 CPC provides that: Foreign courts’ civil judgments or decisions which may not be recognised and enforced in Vietnam:

1. Foreign courts’ civil judgments or decisions which fail to satisfy one of the conditions for recognition prescribed in a treaty to which the Socialist Republic of Vietnam is a contracting party.

2. Civil judgments or decisions which have not taken legal effect in accordance with the law of the country where the court that has rendered such judgments or decisions is located.

3. The judgment debtor or his/her/its lawful representative was absent from a court hearing of the foreign court because he/she had not been duly summoned or the foreign court’s documents had not been served to them within a reasonable time limit prescribed by the law of the country where such foreign court is located so they could not exercise their right to defence.

4. The foreign court that has rendered the judgment or decision has no jurisdiction to settle such civil case or matter as prescribed in Article 440 of this Code.

5. There has been a legally effective civil judgment or decision on this civil case or matter that is rendered by the Vietnamese court, or the Vietnamese court has accepted and is settling the case or matter before it is accepted by a foreign adjudication body or there has been a civil judgment or decision rendered by a court of a third country which has been recognised and permitted for enforcement by the Vietnamese court.

6. The statute of limitations for judgment enforcement has expired in accordance with the law of the country where the court that has rendered such civil judgment or decision is located, or with Vietnam’s law on enforcement of civil judgments.

7. The enforcement of the judgment or decision has been cancelled or terminated in the country where the court that has rendered the judgment or decision is located.

8. The recognition and enforcement in Vietnam of a civil judgment or decision of a foreign court is contrary to the fundamental principles of the law of the Socialist Republic of Vietnam.

21 See Decision 708/2018/QĐKDTM-ST (dated 5 June 2018) of the Ho Chi Minh City Court of First Instance, 3–5. The full text of this Decision was obtained by the author.

22 See Decision No. 02/2018/QDKDTM-ST (dated 9 July 2018) of the First Instance Court of Binh Duong province, 2–6. See the full text of this Decisions at: https://congbobanan.toaan.gov.vn/2ta176295t1cvn/chi-tiet-ban-an accessed on 12 August 2023.

23 See Decision No.1335/2018/QĐST-KDTM (dated 27 September 2018) of the Ho Chi Minh City First Instance Court, 3. The full text of this Decision was personally obtained by the author.

24 See Decision No. 25/2019/QĐPT-KDTM (dated 27 May 2019) of the High Court in Ho Chi Minh City, 7–10. See the full text of this Decision at: https://congbobanan.toaan.gov.vn/2ta312993t1cvn/chi-tiet-ban-an accessed on 6 August 2023.

25 See Decision No. 28/2020/QĐKDTM-PT (dated 29 June 2020) of the High Court at Ho Chi Minh City, 5–7. The full text of this Decision was personally obtained by the author.

26 See more information about the project at: https://www.undp.org/vietnam/projects/fairbiz-promoting-fair-business-environment-viet-nam accessed on 9 May 2023. This project, carried out by the UNDP in cooperation with the UK government, aims to promote fair, transparent and predictable business environments in dynamic ASEAN countries. By working with both governments and the private sectors, the project focuses on six countries in ASEAN and Viet Nam is one of the priority countries.

27 See the full draft at: https://vinhphuc.toaan.gov.vn/webcenter/portal/htvb/chi-tiet-vbdt?dDocName=TAND119509 accessed on 9 May 2023.

28 See Art 7(1) of the 1.1 Draft.

29 See Art 7(2)(a) of the 1.1 Draft.

30 See Art 7(2)(b), Article 7(3) of the 1.1 Draft.

31 See Art 7(4) of the 1.1 Draft.

32 See Art 7(5) of the 1.1 Draft.

33 See Art 19(2) of the 1.1 Draft.

34 In the 2nd China-ASEAN Justices Forum in Nanning-China in 2017, leaders of the supreme courts of member states of ASEAN, China and some South Asian countries reached certain consensus (the Nanning Statement) in which Article 7 proposed a presumed reciprocity if there is no precedent for refusing to recognise and enforce civil commercial judgments on the ground of reciprocity. See the full statement at: https://cicc.court.gov.cn/html/1/219/208/209/800.html accessed on 9 May 2023.

35 See Du Ngoc Bich, “Nguyên tắc có đi có lại có là giải pháp?” [Is the Reciprocity Principle a Solution?] (2004) 8 Tạp chí Nghiên cứu lập pháp – văn phòng Quốc hội [Legislative Journal – Office of the National Assembly] 57–63; Ngoc Bich Du, “Cross-Border Recognition and Enforcement of Foreign Judgments in Vietnam” (2008) 4 Journal of Private International Law 479–500; Du Ngoc Bich, “Sửa đổi cách tiếp cận các quy định về công nhận thi hành bản án dân sự, thương mại của tòa án nước ngoài” [Modifying the Approach to Regulations on Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters] (2008) 23/12 Tạp chí tòa án nhân dân- Tòa án Tối cao [Journal of the People’s Court – Supreme Court] 2–11; Du Ngoc Bich, “Tiếp cận lý thuyết và tiếp cận thực tiễn đối với vấn đề công nhận, thi hành bản án dân sự của tòa án nước ngoài” [Theoretical and Practical Approaches on Recognition and Enforcement of Foreign Judgments] (2019) 7(375) Tạp chí Nhà nước và pháp luật [Journal of State and Law] 48–55.

36 See A Chong (ed), Recognition and Enforcement of Foreign Judgments in Asia (Asian Business Law Institute, 2017); A Reyes (ed), Recognition and Enforcement of Judgments in Civil and Commercial Matters (Studies in Private International Law – Asia) (Hart Publishing, 2019); Yujun Guo, “Principle 5: Reciprocity”, in A Chong (ed), Asian Principle for the Recognition and Enforcement of Foreign Judgments (Asian Business Law Institute, 2020), 57–76; C Okoli, “The Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters in Asia” (2023) 18 Journal of Private International Law 535–37.