Litigation in Vietnam
People often ask me what country I enjoy traveling to the most. My top two are Iceland and Vietnam. Vietnam is such a vibrant and exciting place, full of beautiful landscapes, amazing cuisine, and a bustling culture. One thing that I appreciate, however, is the challenge of regulating commerce in a country with nearly one hundred million people and a government that was only unified in the past fifty years with a constitution less than ten years old. And so I was excited to speak with Vinh Luu from Asia Legal in Hanoi to learn more.
Why should you continue reading this post about litigation in Vietnam?
You have already read my interviews with lawyers from countries near Vietnam, like Thailand and China, but you are hungry for more knowledge.
You want to see my first interview with a lawyer who codes.
You’re interested in reading about one of a small number of jurisdictions besides the United States that allows pre-trial examination of witnesses.
Vinh Luu is an attorney at Asia Legal in Hanoi.
Can you tell me about the kinds of disputes you handle in your legal practice?
For a law firm specializing in business and corporate consultation, the types of disputes that I handle mostly involve contractual disputes, commercial disputes, labor disputes, fraud cases and real estate project disputes. I also participate in negotiating and mediating complex disputes between large corporations.
What type of clients do you generally represent in disputes?
My clients are mainly medium-sized corporations including real estate developers.
Besides Microsoft Office, what software do you use in your practice?
I use various software to contact our clients at their convenience. I also use software to design and edit slideshows for lecturing. And I create programs to run small tasks that can be automated. The software I use includes:
Communication: Microsoft Teams (main software), WhatsApp, Viber, Zalo, Telegram
Design: Adobe Photoshop, Adobe Illustrator, Adobe Premiere
Coding: Java, Visual Basic, C++
What books and websites do you use for legal research?
Our firm has a physical library with a large number of books and magazines. Many are compiled by notorious and respected lawyers in Vietnam or published by Vietnam Investment Review and Vietnam Law & Legal forum.
For websites, I consult:
Image credit: https://vi.wikipedia.org/wiki/Tòa_án_nhân_dân_(Việt_Nam)#/media/Tập_tin:Lam_Dong_People's_Courts.JPG
Do you electronically file pleadings with the court? Or must you send paper copies of them to the courthouse?
Technically, there is no electronic method to file pleadings with the court in Vietnam. All documents must be prepared in paper copies and submitted by guaranteed delivery.
However, the Vietnamese government has a plan for updating the Law on E-Transactions in 2023, which should allow litigants to submit pleadings and evidence electronically.
Does Vietnam have specialized courts that only hear commercial cases?
Yes, the Economic Courts are specialized in settling commercial cases and other cases related to business activities and corporations.
Generally, the Labor Courts and Economic Courts comply with the same civil procedures as other courts. The Labor Courts hear disputes between employees and employers. The Economic Courts are specialized in settling economic disputes, such as disputes involving business and corporate management, securities, insurance, intellectual property, an commercial contracts.
Who decides the facts in a commercial case? Is it a judge or a jury?
Vietnam has no jury trials.
We do have regulations on people’s assessors. A people’s assessor is selected by local People’s Council or local Courts, among the citizens who are working in certain fields and have certain prestige and experience in judicial work. The people’s assessors perform tasks assigned by the judge, such as studying case files prior to the opening of the trials, participating in the trial, providing personal opinions on the case, and taking equal power with the judge to vote on the issues that fall within the trial panels’ jurisdiction. However, due to the lack of legal reasoning skill, the assessors regularly give opinions and advise the judge on noteworthy issues, but they do not decide facts in a commercial case.
According to Vietnamese law, judges and assessors shall conduct trials independently and obey only the law.
A trial panel normally consists of 1 judge and 2 people’s assessors and, in some complex or high-value cases, there will be 2 judges and 3 people’s assessors. In theory, the tasks of people’s assessors are designed to play an independent and objective role in deciding a dispute by majority voting in the trial panel, however, they rarely express opposing views to the judge. Therefore, the applicable laws, the facts and also the outcome of a dispute are mostly decided by the judge.
Generally speaking, how many pages are the complaints or initial pleadings you see in your work?
It depends on the complexity and facts of each case, but normally it takes about 10-15 pages to draft a complaint or an initial pleading, exclusive of attachments and supportive evidence.
Generally speaking, how long does it take for a case to go from complaint to judgment?
It can take up to 24 months to go from complaint to receiving a judgment.
But to obtain a final and enforceable judgment from the court will take much more time and effort. This is because the judicial system in Vietnam has 4 levels: first-instance, appellate, cassation, and retrial. The first-instance judgment can be revoked by an appellate judgment, the appellate judgment can be revoked by a cassation judgment and so on. At each level, the time to settle a dispute depends on the complexity of the case and the viewpoint of the judges toward the case. Thus, it is hard to tell how long it will take to receive a final judgment in Vietnam.
Because of this, I always advise clients to choose negotiation, mediation, and arbitration as the top method of dispute resolution before taking a dispute to court.
Generally speaking, how is evidence exchanged between the parties before trial? Do you get to interview the opposing witnesses before the trial?
Pursuant to the Vietnamese Code of Civil procedure, which came into force as on July 1, 2016, before trials, the court must summon the litigants to attend one or more meetings to discuss the handover, access, and disclosure of evidence, as well as mediation. At these meetings, the litigants exchange evidence and documents, and the court assists the parties to negotiate and reconcile before bringing the case to trial.
But witnesses are not compelled to participate, and so they rarely show up at the above-mentioned meetings. However, before the trial, lawyers can still gather the testimony of witnesses in papers or records and submit them as evidence.
If you win, does the other side reimburse your attorneys’ fees?
It depends on the agreement of the parties, and not all attorney’s fees are accepted by the courts.
Pursuant to the Vietnamese Code of Civil procedure, attorney's fees may be awarded according to an agreement between the involved parties and the lawyer, within the scope of the provisions of the Law on Lawyers.
It can be said that, with or without a lawyer, the courts still have to settle the case in compliance with the law. Hence, attorney's fees are not considered a necessary or mandatory cost to pursue a lawsuit, thereby forcing the losing party in the case to bear those costs.
Are the courts in Vietnam open to the public? Can ordinary people watch a commercial trial?
Vietnamese courts open to the public and people can attend trials. However, in special cases where it is necessary to keep secrets, preserve the nation’s fine customs and practices, or protect minors, the Courts may conduct trials behind closed doors.
Do you believe that Vietnamese courts have a particular strength for resolving commercial disputes? How about a weakness? What are they?
The only advantage of Vietnamese courts is coerciveness. However, to issue an enforceable judgment is usually time consuming and may encounter many obstacles.
Firstly, it takes quite a long time (approximately 10 years or above) to train a qualified and experienced judge. Many provincial courts admitted that the proficiency of their judges has not met the practical requirements of adjudication activities.
Secondly, lower-level courts often consult with the higher-level courts before trial to be assured that their judgments will not be appealed, which works quite well for simple disputes. But when it comes to complex disputes between large corporations, the lower-level courts cannot really issue an unappealable judgment.
Finally, in some cases, due to the lengthy and complicated proceedings, the judge intentionally skips some procedures, which may cause dissatisfaction to the litigants.
How often do you go to the courthouse?
Fo each case, I go to court between 2-5 times on average. This includes official hearings and also unofficial meetings with the judges.
When you are there, do you need to wear a special robe or wig?
There is no dress code for Vietnamese lawyers when presenting in trials or courthouse.