Protection of human rights in the international civil judicial assistance in vietnam

- “Report on situation of international civil judicial assistance treaties between Vietnam and foreign countries, and the indispensable participation of Vietnam into Hague Conference abo

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Bachelor’s thesis Major: International law

PROTECTION OF HUMAN RIGHTS IN THE

INTERNATIONAL CIVIL JUDICIAL

ASSISTANCE IN VIETNAM

STUDENT: TRAN MINH TUAN STUDENT NUMBER: 0955050224 CLASS: Advance Class 34th Course SUPERVISOR: Dr TRAN THANG LONG

HO CHI MINH CITY, 2013

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BACHELOR’S THESIS REGULAR EDUCATION COURSE 34 (2009 – 2013)

PROTECTION OF HUMAN RIGHTS IN THE

INTERNATIONAL CIVIL JUDICIAL

ASSISTANCE IN VIETNAM

STUDENT: TRAN MINH TUAN STUDENT CODE: 0955050224

SUPERVISOR: Dr TRAN THANG LONG

HO CHI MINH CITY

2013

In this thesis, thanks are given to my family and teachers, who have supported and encouraged me during my study Moreover, I emotionally appreciate our

university lecturers for their teaching and enthusiasm Specially thanks to Dr Tran

Thang Long for being my supervisor and helping me throughout this course with

valuable comment and important amendments Finally, I would like to thanks to Mrs

Mai Hong Quy, our university principal, who promotes this advance program and

gives many students like me a chance to participate in

I hereby commit that the thesis “Protection of human rights in the international

civil judicial assistance in Vietnam” is my own research under Lecturer Dr Tran

Thang Long’s supervisor I would bear full responsibility for my commitment

16 July 2013

The thesis’s author signature

Chapter 1 Overview of protection of human rights in the international civil

judicial assistance 7

1.1 Overview of human rights 7

1.1.1 Historical background and definition of human rights 7

1.1.2 Human rights related to international civil judicial assistance 9

1.2 International civil judicial assistance – basic understandings 12

1.2.1 Concept of international civil judicial assistance 12

1.2.2 Characteristics of international civil judicial assistance 18

1.2.3 International civil judicial assistance in international law 20

1.2.4 International civil judicial assistance in Vietnam 26

1.2.4.1 Groundwork for international civil judicial assistance in Vietnam 26

1.2.4.2 Judicial entrustment 27

1.2.4.3.Recognition and Enforcement of Foreign Judgments 30

1.3 Reciprocal relationship between protection of human rights and international civil judicial assistance 34

Chapter 2 Legal practice on protection of human rights in the field of international civil judicial assistance in Vietnam – Recommendations for improvement 37

2.1.1 Practices of human rights in judicial entrustment in Vietnam 37

2.1.2 Limitations in the current regulations on the protection of human rights in judicial entrusment in Vietnam 42

2.1.2.1 Judicial entrustment process according to Joint Circular No 15/2011/TTLT- BTP-BNG-TANDTC 43

2.1.2.3Handling of judicial entrusment results for foreigners residing overseas46

2.2 Recognition and enforcement of foreign judgment 48

2.2.1 Practices of human right in recognition and enforcement of foreign judgment in Vietnam 48

2.2.2 Limitations in the current regulations on protection of human rights in judicial entrusment in Vietnam 50

2.2.2.1 Determination of person who has right to file applications requesting50 2.2.2.2 Conditions for the recognition and enforcement of foreign judgments51 2.2.2.3 Recognition and enforcement of foreign judgments which otherwise obtained by means of proceedings 54

2.2.2.4.Recognition of foreign legal separation 56

2.2.2.5.The principle of reciprocity 60

2.2.2.6.Conflicting decision 62

2.2.2.7.Regconition of foreign divorce by Vietnamese civil registration authority 64

2.3 Improving legal provision on protection of human rights in international judicial assistance in Vietnam 65

Conclusion 71

ICJA International civil judicial assistance

(revised 2011)

2007

15/2011/TTLT-BTP-BNG-TANDTC guiding the application

of a number of provisions of the Law on judicial Assistance on judicial assistance

in the civil domain

October 8 2010 guiding recording in the civil status book on divorces were conducted overseas

dated 31 October 2012 on judicial assistance

Introduction

1 The necessity of doing research

International co-operation is the legal duty of the states in modern international law.1 International law has developed through increased co-operation among states

in recent years, for instance, the European Union Due to the growth in international trade and private international law, the demand for and complexity of judicial actions in another territory are growing and become critical However, the principle of sovereignty is the barrier for these actions, which limits the ability of national courts to settle the dispute effectively

In the aftermath of the World War II, there was increasing concern for the protection of human rights The main aspect of human rights in private international law or international procedure is civil and political rights, which could

be affected negatively by the barrier of principle of sovereignty

International civil judicial assistance is indispensable element of international co-operation The system of international judicial assistance is based on international treaties or the principle of reciprocity This aim is cooperation between judicial authorities in various matters of law in cross-border civil litigation, which overcome the limitation of sovereignty principle and protect the human rights

Since the Renewal took place in 1986, Vietnam has been achieving significant success in socio-economy, diplomatic and national security In diplomatic sphere, Vietnam has established diplomatic relationships with 180 nations all over the world Particular significance was Vietnam's acceptance into ASEAN in July 1995 and WTO in 2007 This led to the development of civil transaction between Vietnamese citizens and foreigners According to statistics from Vietnamese

1 United Nations General Assembly Special Committee on Principles of International Law concerning Friendly

Relations and Co-operation among States, Consideration of principles of international law concerning friendly

relations and co-operation among states in accordance with the charter of the United Nations: report, United

Nations Publisher, 1966, page 191

relevant agencies, currently there are roughly 4 million overseas Vietnamese living, -+working, learning in 103 countries and territories Over 80% are currently living

in developed industrial countries; 3.2 million have long-term stay permits; over 500 thousand laborers are working under term contracts in over 40 countries and territories; tens of thousands of students, researchers, collaborators are learning, working abroad; nearly 300 thousand, mainly Vietnamese women who married to foreigners.2

The unavoidable result of civil transaction involving foreign elements is the cross-border dispute The protection of Vietnamese citizens rights in these disputes must based on the judicial co-operation between Vietnam and foreign countries In addition, the Vietnamese legal system must create the effective framework However, in practice, the rights of Vietnamese citizens in cross-border dispute in many cases were infringed by ineffective international civil judicial assistance Improvement of quality of international civil judicial assistance in Vietnam is the condition for protects human rights better

Based on the above matters, the author decided to choose the topic “Protection

of human rights in the international civil judicial assistance in Vietnam” for

the author’s graduate thesis

2 Literature review

According to the author research, there are many books, journal articles or theses related to international civil judicial assistance in Vietnam Remarkable documents as follows:

- “Theoretical and practical ground for the issuance of international judicial assistance ordinance” of Institute of Legal scientific, Ministry of Justice,

2001 This document focuses on the importance of international civil judicial assistance and the application to Vietnam

2 “General report on the migration of Vietnamese citizens overseas” at the Conference on International

Migration and Data Management for Policy Development, Hanoi, June 1-2, 2011

http://www.iom.int.vn/joomla/files/Events/II.3.1.%20Overview%20of%20VN%20MP%20by%20CD-MOFA%20_ENG.pdf

- “Report on situation of international civil judicial assistance treaties between Vietnam and foreign countries, and the indispensable participation

of Vietnam into Hague Conference about private international law”,

Department of International Cooperation, Ministry of Justice This is the review of international civil judicial assistance treaties between Vietnam and foreign countries; as well as the challenges and difficulties without international treaties

- “International civil judicial assistance between Vietnam and foreign countries”, 2011 Bachelor thesis in Ho Chi Minh City University of Law by

Do Thi Thu Hien This thesis gave theoretical and practical issues in international civil judicial assistance in Vietnam

- Student scientific research at Ho Chi Minh City University of Law 2012,

“Foreign divorce in Vietnam” by Tran Minh Anh, Tran Minh Tuan and

Hoang Minh Du This research mentions the role of judicial entrustment and recognition and enforcement of foreign judgments in protection of Vietnamese women in foreign divorce

In Vietnam, although there have been a great amount of researches on international civil judicial assistance, there is no detailed research on the role of international civil judicial assistance in human rights In the EU, to improve, simplify and expedite judicial co-operation between the member states and to promote access to justice for people engaging in cross-border dispute3, there are some remarkable articles:

- Professor Theodor JR Schilling4, “The enforcement of Foreign Judgment in the Jurisprudence of the European Court of Human Rights”, January 2012

This researching concentrates on the fair trial in civil matters related to recognition and enforcement of foreign judgment

3 Werner Miguel Kuhn Baca, “The principle of mutual recognition of judicial decisions in EU law in the light of

the ‗Full Faith and Credit‖ clause of the US constitution”, Biblioteca Digital Andina, page 27

4

Professor of law, Humboldt University of Berlin, Germany

- Werner Miguel Kuhn Baca5, “The principle of mutual recognition of judicial decisions in EU law in the light of the ‗Full Faith and Credit‖ clause of the

US constitution”, Biblioteca Digital Andina This paper shows a

comparative analysis of the law of United States and EU on the principle of mutual recognition; proposal for improvement of freedom, security and justice area in EU

- Dr Rafael Arenas Garcia, “Abolition of Exequatur: Problems and solutions Mutual recognition, mutual trust and recognition of foreign judgments: Too many words in the sea”, Year Books of Private International Law 2010 This

article analyzes the Regulation 44/2001 of EU and the role of this Regulation on protection of human rights

In general, these researches mainly examine the role of recognition and enforcement of foreign judgment in European Community to ensure the Article 6 of the European Convention on Human Rights and Fundamental Freedoms (ECHR) about fair trial in civil matters The general relationship between international civil judicial assistance and human rights in these articles has not mentioned yet

This thesis serves as a combination of these researches about theoretical basic of international civil judicial assistance In addition, the thesis presents detailed analysis

of the relationship between human rights and international judicial assistance through

practical cases in Vietnam

3 The scope of the thesis

Due to limitation of time, this thesis just concentrates on research the following points:

Firstly, it is to provide the concept and characteristic of international civil judicial

assistance, the importance of human rights; and the reciprocal relationship between them However, it does not aim to the details of human rights; the theoretical basic of judicial entrustment and recognition and enforcement of foreign judgment

5 Former legal Secretary at the Court of Justice of the European Union, current legal officer at the EFTA

Surveillance Authority

Secondly, the thesis does not intend to cover all of the issues on international civil

judicial assistance in Vietnam and all of legal documents about this The scope is limited in provisions of Civil Procedure Code 2004, Joint Circular 15/2011/TTLT-BTP-BNG-TANDTC, Circular 16/2010/TT-BTP and manly focused on substantive law rather than procedural law

Thirdly, with regard to selection of foreign jurisdiction for comparison, the thesis

will only focus on foreign laws of certain developed countries United States, United Kingdom, Canada, Switzerland or the multilateral treaties

Finally, in the practical case in Vietnam, the thesis takes landmark situations into

consideration for analyzing

- Case study: illustrate the Vietnam’s practice of international civil judicial assistance at the current time in chapter II

- Synthetic method: collecting relevant information from different sources such as books, journal articles, cases, etc

- Inductive method: used in chapter I and chapter II to present the concept of human rights; concept and characteristics of international civil judicial assistance; the reciprocal relationship between them

- Analysis: used in all chapters, to withdraw conclusions and recommendations

5 Significance

Firstly, the thesis provides a general understanding of some fundamental academic

issues of international civil judicial assistance and its relation to the human rights concerns

Secondly, the thesis offers analyses of the legislation of Vietnamese law on

international civil judicial assistance in order to point out its ineffectiveness and the reasons

Thirdly, the thesis introduces foreign laws and relevant international rules on the

thesis matter in order to find out effective solutions dealing with difficulties arising from the protection of human rights in the international civil judicial assistance in Vietnam

Finally, acquiring the experience of foreign legislation, the thesis proposes some

recommendations on which are suitable for Vietnam to improve Vietnamese legislation against infringement of human rights in the international civil judicial assistance in Vietnam

This thesis is hoped to become a useful document for the researching of protection

of human rights in Vietnam through international civil judicial assistance instrument

6 Structure

This thesis is divided into two chapters:

CHAPTER 1: OVERVIEW OF PROTECTION OF HUMAN RIGHTS IN THE INTERNATIONAL CIVIL JUDICIAL ASSISTANCE - the general view of human rights interpretation; definitions and concepts relating to international civil judicial assistance; civil judicial assistance in international law and Vietnamese law; the relationship between international civil judicial assistance and human rights

CHAPTER 2: LEGAL PRACTICE ON PROTECTION OF HUMAN RIGHTS IN THE INTERNATIONAL CIVIL JUDICIAL ASSISTANCE IN VIETNAM – RECOMMENDATION FOR IMPROVEMENT - concentrates on analyzing many cases related to the limitation on protection of human rights in international civil judicial assistance in Vietnam; the recommendations based on legal experiences of foreign laws and international treaties

Chapter 1 Overview of protection of human rights in the international civil judicial assistance

1.1 Overview of human rights

1.1.1 Historical background and definition of human rights

Human rights are the complex and enormous theory Therefore, it can be only presented a brief concept of human rights in order to create a theoretical background in human rights involved in judicial assistance in Vietnam

Before World War II, human rights were rarely discussed in international relationship6, thus, human rights were often violated in universal level, from imperialism in Asia to the bourgeois society in Western countries The climax of this violation was the systematic killing of racial or cultural groups, as the Nazi genocide

of Jews7 and atrocious action of Imperial Japanese Army in 1939 – 1945 periods.8Human rights concern was first included in the preamble of Charter of the United Nation, which was formed in the late of 1945

"We the peoples of the United Nations [are] determined –

[…] to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small".9

Afterwards, world leaders decided to complement the UN Charter with a road map to guarantee the rights of every individual everywhere The Universal Declaration

of Human Rights (UDHR), which was adopted by the UN General Assembly on 10 December 1948, was the result of this consideration.10 The preamble to the Universal

Declaration which was said “Whereas recognition of the inherent dignity and of the

6 Armstrong Atlantic State University, “Lesson 2: Human right in World Politics”, Outline Chapter 1: Human

Rights

http://www.cjsocpols.armstrong.edu/kearnes/Lesson2.htm#OUTLINE Achieved 2 July 2013

7 Adam Jones, Genocide: A Comprehensive Introduction, Routledge Publisher, 2013, Chapter 6, pages 239-241

8

Rudolph Joseph Rummel, Statistics of Democide:Genocide and Mass Murder Since 1900, Transaction

Publishers, Rutgers University, 1999, Chapter 3

9 See whole content of Charter of the United Nation in http://www.un.org/en/documents/charter/

10 “HISTORY OF THE DOCUMENT”, United Nation website

http://www.un.org/en/documents/udhr/history.shtml Achieved 27 May 2013

equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world" emphasizes the importance of human right

not only ally in ethics and morality but also contribute to the development of the world International human rights today are frequently discussed in a wider range of countries, and treated as an ordinary part of international diplomatic

Many private associations treated human rights as an urgent problem of human society Each study project of many authors was brought different views about the concept of human rights According to the statistic of United Nations, there are approximately fifty concepts of human rights at present, which were offered till now.11Among them, the concept of human rights given by the Office of the United Nations High Commissioner for Human Rights (OHCHR)12, inter alia, is highly adopted

Human rights are universal legal guarantees whose function is protecting individuals and groups to against actions or omissions that damage to human dignity, entitlements and fundamental freedoms of humankind.13

Besides, another definition of human rights from OHCHR as follows: Human rights are entitled/ endowed that all members of human community, no sexual, race, religion discrimination, social status, etc; inborn rights after being brought into the world, just simple because they are human This definition bears the symbol of natural rights theories.14

Although the variety of concepts, in fact, human rights could be converged as two main viewpoints15:

The first one is natural rights-school of thought It is believed that human rights

are those inborn, inherent things that all newborn individuals are inherited just simply

11 United Nations, Human Rights: Question and Answers, Geneva, 1994

12 The Office of the United Nations High Commissioner for Human Rights (OHCHR) is a United Nations agency that works to promote and protect the human rights that are guaranteed under international law and stipulated in the Universal Declaration of Human Rights of 1948

13 United Nations, UNHCHR, “Freequently Asked Questions on a Human Rights-based Approach to

Development Cooperation”, New York and Geneva, 2006, page 8

because they are the members of mankind family Human rights, therefore, do not depend on customs, habits, traditional culture or will of any individual, social class, background, organization, community or nation; and not any subject, even a country, could grant or dismiss these inborn and inherent human rights of individuals

By contrast, according to scholars of legal rights-school of thought, it is

believed that human rights are not something inborn and naturally inherent; it must be determined and codified into norms of law or originating from traditional culture So, according to theory of legal rights, scope, limit and fixed point of view, during duration of human rights depend on will of dominated class and some elements such as custom, habit, traditional culture of societies In here, while natural rights have their own homogeneous in all universal, all time, whereas legal rights have relatively distinct nature on culturally and politically relative

To sum up, although they have different point of views about human rights, but

it could be seen that scholars from both schools adopted that human rights embrace a lot of categories and particular traits International human rights are often expressed and guaranteed by law, in the forms of treaties, customary international law, general principles and other sources of international law.16

1.1.2 Human rights related to international civil judicial assistance

Access to justice

Access to justice refers to the ability of people to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards In other words, the right to access to justice may equivalent to the right to the fair trial Right to fair trial includes the following fair trial rights in civil and criminal proceedings The European Court of Human Rights and the Inter-American Court of Human Rights have clarified that the right to a fair trial applies to all types of judicial proceedings, whether civil and criminal According to the European Court of Human Rights Article 6 of the European Convention on Human Rights and the fair

16 “What re human right ?” Website of UNHCHR

http://www.ohchr.org/EN/Issues/Pages/WhatareHumanRights.aspx Achieved 27 May 2013

trial rights apply to all civil rights and obligations created under domestic law and therefore to all civil proceedings.17

Access to justice intersects with human rights in a various ways First, it is itself

a fundamental human right, which belongs to political rights as set out in Article 8 of

the Universal Declaration of Human Rights: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.” The right of requesting the court to protect

legal rights and interests is one of the contents that express the equal right of individual, organization International Covenant on Civil and Political Rights dated 23 March 1976 stated that:

"All persons shall be equal before the courts and tribunals In the determination

of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” 18

Secondly, it is a means to protect and enjoy other rights Thirdly, for the right to access to justice to be truly enjoyed, a number of other human rights must also be protected, such as the right to information, the right to physical safety, the right to confidentiality and the right to privacy.19

A fair and efficient system for providing justice is crucial to the proper functioning of society Not only does it holds individuals, including state officials, accountable for their actions, it also sets norms of behavior for other citizens The idea

of justice is the heart of a democratic society

In national scope, the right to access to justice is ensured by the constitutional separation of power For example, national assembly or parliament creates the fairness and justice by issuing the law; administrative body puts legislation into effect while the

17 See Apeh Uldozotteinek Szovetsege and Others v Hungary 2000) Curtis Doebbler, Introduction to

International Human Rights Law, CD Publishing, 2006, page 108

court provides the function of judgment Additionally, legal assistance to people by lawyers, bailiffs, judicial officers consolidated this right

However, in international law, the way to achieve the justice is more complex The right to access to justice in international law related to international judicial assistance in civil matters (hereinafter referred to as the international civil judicial assistance - ICJA), the co-operation between countries In other words, guaranteeing of justice in international law depends on ICJA, such as whether a dispute party has received sufficient notice for the abroad proceedings and whether it is more convenient for a nonresident to defend in a particular forum than for a resident plaintiff to bring a suit in a foreign jurisdiction where the defendant resides.20 Another example, final judgments of national court give the victorious plaintiff a human right to see the judgment enforced within the judgment state Whether this right is maintained in another state?21 These questions above are the demonstration of the importance of ICJA in protects the right to access to justice in universal level

In addition, with international treaties on ICJA, countries can provide opportunities for foreigners to enjoy free legal aid services and for citizens to enjoy legal aid services in foreign countries.22 It is also the method to accomplish the right of access to justice

ICJA also influences other human rights In the civil relations that fall into the scope regulation of private international law, individuals are main subjects.23

20

Gordon A.Christenson, “International Judicial Assistance and Utah Practice”, University of Cincinnati

College of Law Scholarship and Publications, Utah Law Review, Vol.7, 1961, page 481

21 Theodor JR Schilling, “The enforcement of Foreign Judgment in the Jurisprudence of the European Court of

Human Rights”, January 2012

http://works.bepress.com/theodor_schilling/9 Achieved 21 May 2013

22 For example, the agreement between Vietnam and China stipulated that “Citizens of one signatory party enjoy

reduction and exemption of legal fee and enjoy pro bono legal aid of other signatory party under the same conditions with the latter‘s citizens” (Article 3- Agreement on judicial assistance Vietnam-China)

The agreement between Vietnam and the Republic of France provides for “Citizens of one Signatory Party enjoy

in other Signatory Party‘s territory legal aid under the same conditions as those of the latter‘s citizens and in conformity with the latter‘s law” (Article 7- Agreement on judicial assistance Vietnam-France)

23 Reid Mortensen, Richard Garnett, Mary Keyes, Private International Law in Australia, 2nd edition,

LexisNexis Publisher, 2011, page 6

Therefore, it could be said that the most important role of international co-operation in judicial assistance field is to protect the legal rights and interest of individuals

For example, there is an obligation on the judgment that party A must return a car to party B The obligation was created by the judgment; but this judgment is only effective in the territory of the court which issued that judgment Therefore, the obligation may not be enforceable in other countries, which infringes ownership right

of party B Suppose in the case ICJA is not existed, B could only seek to recover the car by institute new legal proceeding against A, which obviously leads to disadvantages

Another example about foreign divorce case can be taken into account When a woman or a man wishes to divorce with abroad spouse, he or she cannot achieve the judgment of divorce without the service of document or taking the evidence Without ICJA or ineffectual ICJA, the right to marry and find family of the woman or the man, mentioned in Universal Declaration of Human Rights, is negatively affected

1.2 International civil judicial assistance – basic understandings

1.2.1 Concept of international civil judicial assistance

International judicial assistance in civil matters forms a part of the law on international civil procedure Concept or definition of ICJA, which grounded in scope

of judicial assistance issue; nature and degree of diplomacy; as well as the need of each state, change with the times This led to, in legal theory, that not one definition of ICJA

is universally accepted or close to coming to a consensus

In searching for the concept or definition of ICJA, we should refer to the law of some countries or international treaties

Germany

In German law, the term “international judicial assistance” (Internationale Rechtshilfe in German), is provided in the Civil Code and Act of Private International

Law 1968.24 It is the assistance for foreign authorities, particularly courts and consulates Subjects of international legal aid are service of document; the hearing of witnesses and the collection of evidences; the seizure and delivery of certificates; the seizure and delivery of certificates (in particular commercial documents) and essentially information (ex bank information).25

France

Judicial assistance in France (Assistance judiciaire international in French), which is understood by French scholars, comprises a number of services such as the provision of relevant documents; exemption of court fee and charge for foreigners; presentation of evidence pursuant to the foreign law; recognition and enforcement of foreign judgment, etc.26 Beside the Napoleon Code 1804, there is large body of French legislation relating to this field.27

Switzerland

ICJA is an area of public international law in Switzerland, falls under federal jurisdiction28 and Federal Act of 18 December 1987 on Private International Law Definition of international judicial assistance in Swiss law was mentioned by Swiss

Administrative Case Law of the Federal Authorities 1985 as “provision of support to the authorities or courts of a requesting state by the state to which the request is made, by carrying out procedural or other official acts and communicating the results

to the authorities or courts of the requesting state, so that these can be used in specific proceeding.”29

24 Theoretical and practical ground for the issuance of international judicial assistance ordinance of Institute

of Legal scientific, Ministry of Justice, Legal Journal Information, 3/2001, page 32

25 German Wikipedia, article “Rechtshilfe“

http://de.wikipedia.org/wiki/Rechtshilfe Achieved 27 May, 2013

26Theoretical and practical ground for the issuance of international judicial assistance ordinance, Ibid., page 21

27 Ibid

28

Art 54 para 1, Art 122 para 1 and Art 166 para 2 of the Swiss Constitution

29 “International Judicial Assistance in Civil Matter Guidelines”, Private International Law Unit of the Federal

Office of Justice together with the Division for International Legal Assistance (FOJ), the Directorate of

International Law (DFA) and the Office of the Attorney General of Switzerland, page 1

http://www.rhf.admin.ch/etc/medialib/data/rhf.Par.0064.File.tmp/wegl-ziv-e.pdf Achieved 2 May, 2013

In addition, other activities such as inspection, taking statements from witnesses; providing expert opinion that belong to normal sense of international judicial assistance In a broader sense, it includes other official measures related to foreign civil litigation, for instance, the enforcement of foreign decisions or the application of foreign law.30

Republic of Korea

The legal system in the Republic of Korea is based on civil law and most the law are codified For the ICJA, Korean parliament issued the Act on International Judicial Cooperation in Civil Matters, Act No 4342, on 8 March, 1991 The purpose

of this act is to create the ground to infer the concept of ICJA in Korean law; to provide procedures in any civil case, to entrust a foreign country with judicial cooperation, and to settle judicial cooperation entrusted by a foreign country.31

Noticeably, the matters of recognition and enforcement of foreign judgments in South Korea are not covered by the Act on International Judicial Cooperation in Civil Matters, but by Korean Code of Civil Procedure.32

United States

In the US law, international judicial assistance is the process whereby courts in one jurisdiction assist courts located in another jurisdiction.33 It has three main aspects: acquiring information of abroad witnesses, service of documents on abroad person and collect information about foreign law International judicial assistance in US also covers recognition and enforcement of foreign judgments and arbitral awards.34

30 Ibid

31 Article 1 The Act on International Judicial Cooperation in Civil Matters, Act No 4342, March 8 1991

32 International Business Law Consortium, Paul Hopkins (editor), International Enforcement of Foreign

Judgments, Lulu.com, 2006, page 299

33 Peter Metis, “International Judicial Assistance: Does 28 U.S.C & 1782 Contain an Implicit Discoverability

Requirement”, Fordham International Law Journal, Volume 18, Issue 1, 1994, page 337

Another definition can be seen in Gordon A.Christenson, “International Judicial Assistance and Utah Practice”,

University of Cincinnati College of Law Scholarship and Publications, Utah Law Review, Vol.7, 1961, page 478

“an aid that rendered by one nation or its courts to another nation or it courts in support of judicial proceedings in the nation or courts requesting assistance”

34

Gordon A.Christenson, ibid , page 478

Former Soviet Union and Eastern Europe socialist countries

In former socialist legal system of Europe, the concept of International judicial assistance is understood to be distinct procedural activities Distinct procedural activities often include: making and service of document; inspection, collect the evidence; recognition and enforcement of foreign judgments and arbitral awards; witness inquiry.35

Vietnam

Neither does the Law on Judicial Assistance 2007 give the definition of international judicial assistance, nor the Civil Procedural Code 2004 (revised 2011) However, the concept of international judicial assistance is mentioned indirectly in Article 10 Law on Judicial Assistance 2007 (hereinafter referred to as LJA 2007), in which, the scope of civil legal assistance between Vietnam and foreign countries covers:

“1 Service of papers, dossiers and documents related to civil legal assistance;

2 Summon of witnesses and experts;

3 Collection and supply of evidence;

4 Other requests for civil legal assistance.”

Additionally, chapter XXXVI of Civil Procedural Code 2004 titled “Judicial assistance in civil procedures” is only concerned with judicial entrustment In sum, LJA 2007 and CPC 2004 does not mention about the position of recognition and enforcement of foreign judgment in scope of judical assistance Thus, in conceptualising questioning the concept of ICJA in Vietnam, the question of whether recognition and enforcement of foreign judgment belong to ICJA is taken into account

From the academic perspective, recognition and enforcement of foreign judgments, in company with judicial entrustment are the main aspects of ICJA in

35 Theoretical and practical ground for the issuance of international judicial assistance ordinance, Ibid , pages

22-23

Vietnam.36 Importantly, the Vietnamese delegation always determined to request supplement content of recognition and enforcement of foreign judgments in negotiative process of bilateral treaties on ICJA.37 This was mentioned in the Report

No 307/BC-CP on judicial assistance, which states that even if recognition and enforcement of foreign judgment not regulated in LJA 2007, it is the significant part of

of bilateral treaty on ICJA, which signed by Vietnam So from the practical view, it can be said that recognition and enforcement of foreign judgment is an integral part of ICJA in Vietnam

Looking at contents of treaty (agreement) on judicial assistance in civil matters concluded between Vietnam and foreign countries, it can be seen that the scope of ICJA also inconsistent Thus, the examination of entire contents of these treaties, it is shown that the definition of ICJA is broad, covering such issues as conflict of law, conflict of jurisdiction, exchange of judicial information, judicial protection, etc

International treaties

In the Treaty between the United Kingdom of Great Britain and Northern Ireland and the United Arab Emirates on judicial assistance in civil and commercial matters 2007, judicial assistance applies to the service of judicial document and the taking of evidence by means of Letters of Request or commissions.38 The same scope

of judicial assistance can be found on the Agreement on Judicial Asisstance in civil and commericial matters and co-operation in arbitration between Thailand and

36 Article “Scope of international civil judicial assistance”, author Hoang Thu Ha and the article “Report on

situation of international civil judicial assistance treaties between Vietnam and foreign countries, and the indispensable participation of Vietnam into Hague Conference about private international law”, Department of

International Cooperation MOJ

37

Department of International Cooperation MOJ , “Report on situation of international civil judicial assistance

treaties between Vietnam and foreign countries, and the indispensable participation of Vietnam into Hague Conference about private international law”

38 Clause 2 Article 4 Treaty between the United Kingdom of Great Britain and Northern Ireland and the United Arab Emirates on judicial assistance in civil and commercial matters

Australia 199739, Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea 1999.40

In other bilateral treaties, the scope of judicial assistance is more broader Article 1 of the Agreement on mutual judicial assistance in civil matters between Vietnam and Kazakhstan 2011 determines the scope of judicial assistance in the following civil matters:

“i) Service of documents relating to mutual judicial assistance;

ii) Taking and transferring of evidence;

iii) Summoning of witness and expert;

iv) Recognition and enforcement of the court judgments, decisions and arbitral awards as provided in Chapter V of this Agreement;

v) Exchange of legal information and materials relating to mutual judicial assistance;‖

Agreement on judicial assistance in civil and criminal matters between Vietnam and Russia 1999 and Agreement between India and the United Arab Emirates on juridical and judicial cooperation in civil and commercial matters 1999 have the same appoach with this scope.41 Examples above have demonstrated the fact that the concept

of ICJA is heterogeneity in international law

To sum up, by reference to the law of some countries or international treaties,

we can have a definition of international civil judicial assistance as follow:

“International civil judicial assistance is the co-operation among countries through competent jurisdiction authorities for the civil matters (civil, family and marriage, labor and commercial matters) proceeding This allows the parties and authorities in charge to perform necessary activities, including service of document;

“Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea,

done at Canberra on 17 September 1999 “ http://www.austlii.edu.au/au/other/dfat/nia/1999/30.html

41 Article 5 of Agreement on judicial assistance in civil and criminal matters between Vietnam and Russia 1999, Article 2 of Agreement between India and the United Arab Emirates on juridical and judicial cooperation in civil and commercial matters 1999

collecting evidence; recognition and enforcement of foreign judgments and arbitral awards.”

1.2.2 Characteristics of international civil judicial assistance

From the concept of International civil judicial assistance, there are some various views in respect of this concept as the following

Firstly, legal nature of ICJA is the co-operation and aid among the countries in

jurisdiction matters Jurisdiction matter, in the broadest sense, may contain legal protection or settlement of conflict of law In a narrower sphere, which is supported by many countries, it includes the service of document42; collecting evidence; recognition and enforcement of foreign judgments and arbitral awards That co-operation may stretch from a simple request for essential information to more complex undertakings such as the request for summon of expert or taking statements from witnesses

Secondly, the civil matter would have to be interpreted in non-criminal law So

that ownership right, family and marriage (matrimonial), labor and commercial dispute matters fall within the scope of ICJA

Thirdly, legal sources of ICJA are international treaties In the absence of such

agreements, ICJA is carried out by applying the principle of reciprocity, this case is understood as where a host state agrees to extend to foreign nationals the same legal rights that the foreign government extends to its own citizens inside its state.43 It may equivalent to the doctrine of comity in common law countries The concept of comity,

in the legal sense, is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the right of its own citizens and other

42 Service is the transmission of document by an official method Most procedural law provide that in order to allow proceedings to begin the communications to the parties must be served on them or notified to them in order

to have effect (“International Judicial Assistance in Civil Matter Guidelines”, ibid , page 6) In example, Article

147 of CPC 2004: “The courts, the procuracies and the judgment-executing agencies bodies have the obligation

to issue, send or notify procedural documents to the involved parties, other participants in procedures and relevant individuals, agencies and/or organizations according to the provisions of this Code.”

There are many ways of service such as service according to international convention; service by diplomatic

channel; service to the litigation agent; service by mail; service through public notice, etc

43 Nong Quoc Binh, “Condition for recognition and enforcement of foreign judgment, arbitral awards” , Hanoi

University of Law, Science of Law Journal, Special issue of Civil Procedure Code 2004

http://thongtinphapluatdansu.wordpress.com/2007/09/11/474674/ Achieved 22 June 2013

persons who are under the protection of its law.44 In common law countries, recognition of foreign judgment depend upon comity, treaties, legislation, or common law principles.45

International treaties are classified into multilateral and bilateral treaties Details of multilateral treaty can be seen in part 1.2.3 “International civil judicial assistance in international law” of this thesis About bilateral treaty, in general, countries currently sign and ratify many of bilateral treaties of ICJA, for example, Vietnam has 16 bilateral treaties; PR China has 1346; Switzerland has 1547; the Federation of Russia has 30.48

Case law (or precedent) is also the source of law in ICJA, mainly in common

law countries For example, in such cases as Hilton v Guyot, Supreme Court US, 1895, U.S 113, 16 S.Ct.139, 40 L.Ed 85 in the US49 and Chen Li Hung v Ting Lei Miao [2000] 1 HKC 461, [2000] 1 HKLR 252 in Hong Kong, the courts establish new

principle of recognition and enforcement of foreign judgments.50

Forthly, the competent authority in ICJA, normally is the judiciary or

diplomatic agents According to international treaties, special service can be established, such as Central Authority in Hague Service Convention

Finally, the purpose of ICJA, is the protection of rights and benefits of states,

people and organizations The effective exercitation of ICJA ensures the fairness and justice in international civil proceeding, as well as other related human rights, on the ground of friendly diplomatic

44 Peter Hay – Russel J.Weintraus – Patrick J.Borches, Conflict of laws Cases and Materials, Foundation Press,

New York, 2009, page 320

45 Ved P.Nanda – David K.Pansius, Litigation of international dispute in US courts (second edition),

Thomson/West Publisher, 2006, Chapter 20 page 20-2

46 http://www.legalinfo.gov.cn/english/judicial-assistance/node_7628.htm

47

“International Judicial Assistance in Civil Matter Guidelines”, ibid , page 3

48 http://www.worldservicesgroup.com/publications.asp?action=article&artid=2780 Achieved 17 June 2013

49 Peter Hay – Russel J.Weintraus – Patrick J.Borches, ibid., pages 229-238

50 Jie Huang, “Interregional Recognition and Enforcement of Civil and Commercial Judgments: Lessons for

China from US and EU laws”, Duke Law School Theses and Dissertations, page 11

1.2.3 International civil judicial assistance in international law

Undoubtedly, international judicial assistance is the vivid manifestation of

principle “The duty of States to co-operate with one another”, which is the basic principle of modern international law.51 The international cooperation occurred from

ancient time, in many geographical areas around the world Thus, this early

cooperation remains within boundary delimitation and only concerns limited matters such as war and peace; diplomacy; and this is the rights of the state After World War

II, international cooperation became an international duty.52 This principle was

confirmed in The Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (resolution

26/25 (XXV)).53

As mentioned above, international treaties serve as legal sources of ICJA At the end of 19th century, it was a diplomatic and political act where the protection of State sovereignty and of own citizens was of utmost importance Before the first convention on civil procedure worked out by the Hague Conference of Private International Law of 1894, it was regulated by bilateral treaties and only between very few countries.54 Currently, the field of international judicial assistance is more regulated and the number of treaties has increased.55

However, due to diversified definition of ICJA, there is no existence of a multilateral treaty, which covers all of the issue in ICJA Instead, matters relating to ICJA are provided by a number of multilateral conventions as below

The Hague Convention relating to civil procedure of 1 March 1954 (1954 Hague Convention)

54 Eve Jõks, “Some Problems of International Judicial Assistance from an Estonian Perspective”, Juridica

International IV/1999 International law, page 84

55

Ibid

The 1954 Hague Convention provides for the service of documents via the consular channel (Article 1) Under Article 1 paragraph 1 of the 1954 Hague Convention, the consul’s request must indicate the authority issuing or forwarding the document, the names and capacities of the parties, and the address of the addressee In addition, the nature of the document in question must be mentioned

Article 6 of the 1954 Hague Convention permits the direct service by mail to an addressee resident abroad, or via the competent judicial or public officials of the recipient country, or, alternatively, through diplomatic or consular agents Requests for the judicial assistance are in principle to be made in the language of the state body requested, or must be attached certification translation in that language.56

In pursuant to Article 14 paragraph 1 of the 1954 Hague Convention, the judicial authority which executes a letter of request applies their law When the requesting state calls for the request to be executed in accordance with its own law, this request will only be rejected if the required form is contrary to the legislation of the state addressed Article 15 of the 1954 Hague Convention allows foreign requesting authorities to have their requests executed directly by diplomatic officers or consular agents in the state of execution if an agreement between the interested states expressly permits this or if the state in the territory where the letters of request are to

be executed does not object

This convention is the cornerstone for later bilateral treaties on international procedural law, such as German-Franco Treaty 6 May 1961, German-Austro Treaty 6 June 195957 and the Chapter II of the 1954 Hague Convention contributes as the foundation for Chapter I of Hague Evidence Convention

The Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention)

56 Article 10, 1954 Hague Convention

57 Theoretical and practical ground for the issuance of international judicial assistance ordinance”, Ibid , pages

27

Article 1 paragraph 1 of the Hague Evidence Convention provides that the judicial authority of a contracting state may request by letters of request the competent authority of another state to perform any judicial act; and the convention will not apply where the address of the person to be served is unknown Each contracting state has the obligation to design a Central Authority which will undertake to receive requests for service coming from other contracting states and this Central Authority in conformity with national law.58Article 18 permits states to designate more than one Central Authority In addition to the ordinary channel by Central Authority, Hague Service Convention offers for another choice of service from Articles 8 to 10: transmission through the postal channel (Article 10); through the diplomatic or consular channel (Article 9); direct communication between appropriate officials of the two states or between any interested person and appropriate officials in the state addressed (Article 10)

About the form of request, Article 3 of the Hague Service Convention provides for the use by contracting states of a model form for requesting the service of judicial

or extra-judicial documents The text printed on the form must include a version in either English or French.59 It consists of three parts, the request for service, a certificate containing the details of execution and a summary of the document being served.60 The both request and the document will be duplicated

The Central Authority can serve the document by using the law of the receiving state (the domestic law) or the special method requested by applicants In the second case, this method must be compatible with the law of requested country.61 In the event that an authority receives an application for the execution of which it is not competent,

it is required under Article 6 of the Hague Evidence Convention to forward the application without delay to the competent authority Whenever the request is not suit with the Convention, the Central Authority will reject this request and inform the applicant according to Article 4

58

Article 2 Hague Service Convention

59 Under article 7 the Hague Service Convention, the additional printing of the text in one or more official languages of the requesting state (state of origin) is permitted

60 Article 7 para 1 Hague Service Convention

61

Article 5 Hague Service Convention

A service may be refused in the following cases: the case is not in civil nature

or of commercial matter; the execution of service would infringe sovereignty or security of requested party (Article 13) But Article 13 also gives the limitation for such refusal, paragraph 2 indicates that the execution of a request may not be refused

to comply only on the ground that the law of the requested state claims exclusive jurisdiction over the subject-matter of the action or does not permit the action upon which the application is based This mean these ground are not relate to sovereignty.62

In contrast to the 1954 Hague Convention, Hague Service Convention provides mechanism for the protection of the rights of the defendant who has not received a served document This is the expression of ensure the human right in international judicial assistance According to Article 15, when a writ of summons or

an equivalent document had to be transmitted abroad, but the defendant has not appeared, the court is required to postpone the judgment until it is established that the document was either served in accordance with the methods prescribed by the internal law of the state addressed (Art 15 para 1 let a Hague Service Convention), or the document was actually delivered to the defendant or to his residence by another method provided for by the Hague Service Convention (Art 15 para 1 let b) In addition, the court may only postpone judgment, whatever the situation, if service or delivery was affected in sufficient time for the defendant to be able to defend

According to Article 15 Paragraph 2, “each contracting state shall be free to declare that the judge, notwithstanding the provision of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received”, when the following conditions are satisfied: the document was transmitted

by one of the methods provided by Hague Service Convention; a period of not less than six months has elapsed since the date of the transmission and no certificate has been obtained even through every reasonable effort has been made by the competent authority of the requested state

When the judgment has been entered against a defendant, who has not appeared, defendant can request the court relieve him of the effects of failing to appeal

62

“International Judicial Assistance in Civil Matter Guidelines”, ibid , page 15

against the judgment, which expired.63 The court can relieve the defendant, if conditions are fulfilled: the defendant, without any fault on his part, did not have either knowledge of document in sufficient time to defend or the judgment in sufficient time

to appeal; the defendant has disclosed a prima facie defence An application for relief

may be filled only within reasonable time after the defendant has knowledge of the judgment.64 This article not applies to judgments relating to the status or capacity of persons

The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (Hague Evidence Convention)

Article 1 Paragraph 1 of the Hague Evidence Convention provides that the judicial authority of a contracting state may request by letters of request the competent authority of another state to perform any judicial act The Hague Evidence Convention does not require the use of form for the application The content of letter

of request is mentioned in Article 3

The request is executed by the law of the requested state The requested court will apply the appropriate measures of compulsion in the instances and to the same extent as are provided by its internal law for the execution of orders issued by authorities of its own country or of requests made by parties in internal proceedings (Article 10 Hague Evidence Convention) The evidence could be obtained by a person appointed by the requested authority (Article 14 Paragraph 2)

For the protection of human rights, the person to be questioned or who is request to produce document may claim to be exempt from providing evidence, either

on the basic of the law of the requested state, or of the law of the requesting state (Article 11 Hague Evidence Convention)

In general, the execution in ICJA through multilateral treaties is the trend of operation The main contents of those treaties enhance the assistance, make the co-

operation more effectively, thus ensuring the fairness and justice in international procedural law

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (2001 Brussels I Regulation)

The Brussel Convention of 27 September 1968 on Jurisdiction and the

Enforcement of Judgments in Civil and Commercial Matters (The Brussel Convention 1968) is the original source for The Brussels I Regulation, deals with the jurisdiction

of EU Member States’ courts and the recognition and enforcement of the judgments of the courts of Member States.65 The main objective of Brussels Convention 1968 was to guarantee the right to obtain and enforce judgment throughout the European Community In order to achieve this objective, it was necessary to unify the law on international jurisdiction.66

The 2001 Brussels I Regulation which was adopted in December 2000, settles conflicts of jurisdiction in the case of transnational disputes and facilitates the free movement of judgments within the Internal Market.67 The Brussels I Regulation is confined in its scope to proceedings and judgments regarding international legal relationships, including relationships that involve not two Member States, but one Member State and one non-Member State (third State)

Recognition of a judgment given in one court of an EU Member State is automatic in another Member State unless contested Similarly, a declaration that a judgment isenforceable is virtually automatic after purely formal checks of the

65 Joaquim-J Forner, “Special jurisdiction in commercial contracts: from the 1968 Brussels convention to

―Brussels-one regulation‖”, International Company and Commercial Law Review, 2002-3, page 1

http://www.tmzabogados.com/docs/42_special_jurisdiction_in_commercial_contracts from_the_1968_brussels _convention_to brussels-one_regulation_.pdf

66

Jason Chuah - Alina Kaczorowska, Qamp;a Conflict Of Laws, Routledge Publisher, 2000, page 71

67 ―Data Collection and Impact Analysis - Certain Aspects of a Possible Revision of council Regulation

No.44/2001 on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters ('Brussels I'), 17 December 2010 '' European Commission web site, page 1

http://ec.europa.eu/justice/civil/files/study_cses_brussels_i_final_17_12_10_en.pdf

documents.68 The ground for the refusal of recognition in Brussels I Regulation includes69: jurisdiction of the court which delivered the judgment; irreconciable with another judgment; inappropriate service to the defendant and public policy

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also known as the New York Convention 10 June 1958

The New York Convention applies to the recognition and enforcement of foreign arbitral awards and the referral by a court to arbitration.70 The duty of contracting party is recognize and enforce the arbitral award comply with the convention However, grounds for refusal of enforcement in general were provisioned

in Article 571: lack of a valid arbitration agreement; violation of due process; excess of the arbitral tribunal’s authority; the award has been suspended; the award has not yet become binding and the contrary to public policy of requested state

Vietnam became the member of New York convention in 28 July 1995 Consequently, in accordance to New York convention, the practice of recognition and

enforcement of arbitral award in Vietnam is well-governed

1.2.4 International civil judicial assistance in Vietnam

1.2.4.1 Groundwork for international civil judicial assistance in Vietnam

The principles for judicial assistance in Vietnam are respect for each other’s national independence, sovereignty and territory; non-interference in each other’s internal affairs; equality and mutual benefits and in compliance with the international treaties which Vietnam has signed or acceded to and with Vietnamese laws.72 At present, Vietnam has ICJA agreements with 17 countries and territories including

68 Henrik Ringbom, “EU Regulation 44/2001 and its Implications for the International Maritime Liability

Conventions”, Journal of Maritime Law & Commerce, Vol 35, No 1, January, 2004, page 3

69 Dr Rafael Arenas Garcia, “Abolition of Exequatur: Problems and solutions Mutual recognition, mutual trust

and recognition of foreign judgments: Too many words in the sea”, Year Books of Private International Law

2010, pages 14-21

70

New York Arbitration Convention website

http://www.newyorkconvention.org/ Achieved 2 July 2013

71 See whole content of 1958 New York Convention in conv/XXII_1_e.pdf

http://www.uncitral.org/pdf/english/texts/arbitration/NY-72

Article 4 LJA 2007

Czech Republic, Slovakia (successors of former Czechoslovakia), Cuba, Hungary, Bulgaria, Poland, Laos, Federation of Russia (successors of former Soviet Union), People Republic of China, France, Ukraine, Mongolia, Belarus, Democratic People Republic of Korea, Kazakhstan, Algeria and Chinese Taipei Most of them are former Eastern Europe socialist countries For multilateral treaties, Vietnam has not yet signed any multilateral treaty about ICJA, except the New York Convention 1958

When there are no international treaties concerned, ICJA may be accepted by Vietnamese courts on the principle of reciprocity, co-operation with countries that have not concluded treaties of ICJA through domestic channel Currently, Vietnam has established principle of reciprocity with 11 countries: France, Canada, Federation of Germany, Japan, Kingdom of Cambodia, Sweden, South Africa, Egypt, Iran and Belgium.73

1.2.4.2 Judicial entrustment

In the process of settlting foreign civil disputes, a judicial authority of one state

may carry out following procedural operations in the territory of another state: service

of documents; collecting evidence; summon of witnesses and experts, etc In practice, this practice is performed via the platform of judicial entrustment, it means that court requests a foreign court to carry out essential procedural acts in the territory of requested country.74

LJA 2007 gives the definition about Judicial entrustment in Clause 1 Article 6:

“Judicial entrustment means a written request of a competent body of Vietnam or a foreign country for the performance of one or a number of judicial assistance activities under the provisions of the law of the concerned country or the treaty to which Vietnam is a contracting party ” All of bilateral treaties on ICJA between Vietnam

and foreign countries reserve a large amount of articles for judicial entrustment,

73 “Theoretical of Law on Judicial Assistance 2007”, Judgement Science Information, The Institute of Judicial

Science of People Supreme Court, 02-2008, pages 93

74 Le Thi Nam Giang, Private International Law, National University Ho Chi Minh City publisher, 2010, pages

218, 219

because of evaluation of judicial entrustment is the means of succesful judicial assistance.75

Vietnamese courts may judicially entrust foreign courts or be judicially entrusted by foreign courts to conduct a number of civil proceeding activities under the provisions of international treaties to which Vietnam is a party or acceded to or on the principle of reciprocity.76 Judicial entrustment from foreign courts will be declined in case the exercise of this infringes upon the sovereignty of Vietnam or threatens the security of Vietnam; or it does not fall within the jurisdiction of Vietnamese courts.77

When Vietnamese courts exercises judicial entrustments, stemed from the

principle of lex fori, they must abide by Vietnamese civil procedural law However, in

special circumstances, Vietnamse courts may apply foreign civil procedural law, unless it is not contradict to Vietnamse civil procedural law.78

Judicial entrustment process in Vietnam is stipulated by bilateral treaties on ICJA between Vietnam and foreign countries, the CPC 2004 as well as the LJA 2007

In bilateral treaties, judicial entrustment is the step-by-step process, as follows:79

 The request for judicial assistance will be in writing Requested pary execute requests by national law during the process

 If the competent authorites cannot identify the address of the abroad involved party, they must has taken every essential measure

 The requested party must inform the requesting party about the time for judical entrustment

 Apart from general provision, bilateral treaties also give details of other judical entrustment activities: summon of witness and expert80, service of document81, taking and transferring of evidence.82

75 Le Thi Nam Giang, Ibid., page 220

76 Clause 1 Article 15 CPC 2004

77 Clause 2 Article 15 CPC 2004

78 Banh Quoc Tuan, Private International Law, Internal circulation only textbook, page 287

79 Example: Article 7 Agreement on judicial assistance in civil and criminal matters between Vietnam and Russia 1999; Article 6 Agreement on judicial assistance in civil, family and criminal matters between Vietnam and Mongolia 2000, Article 9 Agreement on judicial assistance in civil and criminal matters between Vietnam and DPR Korea 2004

80 Article 8 Agreement on judicial assistance in civil and criminal matters between Vietnam and Russia 1999, Chapter IV Agreement on mutual judicial assistance in civil matters between Vietnam and Kazakhstan 2011

Based on Vietnamese law, about the form for judicial entrustment, the judicial entrustment by Vietnamese courts to foreign courts or by foreign courts to Vietnamese courts must be made in written documents, under the provision of international treaties

or Vietnamese law

Judicial dossiers, according to Article 11 of LJA 2007, comprise the following documents: a competent authority written request for ICJA; judicial entrustment documents and other papers as requested by a competent authority of the enstrusting country The content of judicial entrustment documents is detailed in Article 12 of LJA

2007.83 If necessary, judicial entrustment documents must be accompanied by papers and/or documents essential for the realization of the entrustment

Under the framework of bilateral treaties on ICJA, Vietnamese courts can resolve foreign civil disputes effectively; shorten the length of civil proceeding Nevertheless, there are many countries which Vietnam does not have bilateral treaties

on ICJA, this leaves Vietnamese courts in difficulties requesting for judicial assistance across borders, pose challenges for Vietnamese citizens and organizations In an attempt to overcome this problem, on 15 September 2011, Joint Circular 15/2011/TTLT-BTP-BNG-TANDTC ("Circular 15") was issued guiding the implementation of the Law on Judicial Assistance 2007 Circular 15 (with 4 chapter and 31 articles) stipulates clear, detail duty for the state authority in judicial entrustment process with the limited period of time Thus, the backlog of civil cases will be reduced In practice, Circular 15 has proved to be a gap-filling measure for insufficiency of LJA 2007; however, there still has many limitations, which discuss later in chapter II of thesis

81 Article 8 Agreement on judicial assistance in civil and criminal matters between Vietnam and Russia 1999, Chapter II Agreement on mutual judicial assistance in civil matters between Vietnam and Kazakhstan 2011

82 Chapter III Agreement on mutual judicial assistance in civil matters between Vietnam and Kazakhstan 2011

83 “1 Date and place of making the document;

2 The name and address of the entrusting authority;

3 The name and address of the entrusted authority;

4 Full names and places of resident or working of individuals; full names and addresses or head offices of agencies or organizations directly involved in judicial entrustment;

5 Content of the entrustment, indicating the entrustment purpose, actions and related circumstances,

quotation of applicable legal provisions, measures to effect the entrustment and the entrustment performance duration.”

1.2.4.3 Recognition and Enforcement of Foreign Judgments

Recognition and enforcement of a judgment is usually the final goal in the civil dispute settlement process In both legal theory and practice, the judgments of one State's courts is ineffective in the territory of another State In other words, the judgment is not extend beyond its own borders.This based on the principle of respect sovereignty and territorial jurisdiction.84

However, if the principle of sovereignty is applied absolutely, this will make the barrier for the judgments in civil and commercial matters need to be recognized and enforced in other countries besides the country where the judgment is made This barrier is not comply with globalization trend and the protection of human right So, recognition and enforcement of foreign jugdment is very essential In common law system, recognition and enforcement of foreign judgments is one of the three parts of conflict of law (or private international law), which others is jurisdiction and choice of law.85 Foreign judgment could be decision of foreign courts or foreign arbitration.86The recognition of a foreign judgment is a prerequisite for the enforcement of that judgment.87

Under Vietnamese law, the party seeking recognition and enforcement of foreign judgment in Vietnam shall respect of the following aspects The principle of recognition and enforcement of foreign judgment in Vietnam mentioned in Article 343

of CPC 2004: Vietnamese court consider the recognition and enforcement of foreign civil judgments and decisions of foreign courts when: (1) Civil judgments and

84 Abla J Mayss, Principles Of Conflict Of Laws, Routledge Publisher, 1999, page 87; Le Thi Nam Giang, Ibid ,

page 228

85Reid Mortensen, Richard Garnett, Mary Keyes, ibid , page 135

86 Foreign judgment in Vietnamese law according to Article 342 CPC 2004:

“Civil judgment and decisions of foreign courts and foreign arbitration awards

1 Civil judgment or decisions of foreign courts mean judgment and decisions of foreign courts relating to civil [matters], marriage and family, business, commerce or labor, decisions relating to assets in criminal or

administrative judgment and decisions of foreign courts and other judgment or decisions of foreign courts which are considered to be a civil judgment or decision in accordance with the laws of Vietnam

2 Foreign arbitration awards mean arbitration awards made outside the territory of Vietnam by an arbitrator appointed by mutual agreement of the parties in order to settle a dispute arising from their business, commercial and labor legal relations.”

87 Swan Sik, African Yearbook of International Law, 1996, 6th book of Asian Yearbook of International Law Series, Martinus Nijhoff Publishers, 1998, page 162

decisions of courts of a country which is a party to a relevant international treaty of which Vietnam is a participant or a signatory; (2) in the principle of reciprocity without the appearance of international treaty and (3) in national law The enforcement

in Vietnam of foreign judgment depends on the recognition of Vietnamese court

Vietnam is the member of New York Convention, thus the recognition and enforcement of arbitral awards in Vietnam is in conformity with rules of New York Convention Participation of Vietnam in treaty about foreign judgment of courts is not The content of 16 bilateral treaties matters, which relating to the recognition and enforcement of foreign judgments are addressed in a direct and detailed way, not referred to national law.88 In Clause 5 Article 343 CPC 2004, judgments of foreign courts for which no request for enforcement in Vietnam and no petition for not to recognize are made shall be automatically recognized in Vietnam in comply with international treaty which Vietnam is a signatory or participant In Clause 5 Article

343 of CPC 2004, judgments of foreign courts for which no request for enforcement in Vietnam and no petition for not to recognize are made shall be automatically recognized in Vietnam in comply with international treaty which Vietnam is a signatory or participant

According to bilateral treaties, the civil judgment or decision of contracting party shall be automatically recognized and enforced (i.e Clause 1, 2 Article 44 Agreement on judicial assistance Vietnam-Laos89; Article 51, 52, 53 Agreement on judicial assistance Vietnam-Russia90; Article 21 Agreement on judicial assistance Vietnam-Republic of France91) However, foreign judgment of courts is not regconized and enforced if it falls in one of the circumtances in Article 356 CPC 2004:

“1 The civil judgment or decision is not yet legally enforceable in accordance with the laws of the country in which the court has made such judgment or decision

88 Banh Quoc Tuan, Ibid , page 322

89 Article 44 Agreement on judicial assistance Vietnam-Laos “Recognition and enforcement of civil judgment or decision”

90 Article 51 Agreement on judicial assistance Vietnam-Russia “Recognition of non-monetary judgment” and Article 52 “Recognition and enforcement of money judgment”

91 Article 21 Agreement on judicial assistance Vietnam-France “Condition for recognition and enforcement” See more at http://www.vietlaw.biz/bldisplay/db1/show_tm1.php?doc=1200#

2 The person against whom enforcement is sought, or his or her legal representative,

is absent from the trial of the foreign court because such person is not properly summoned

3 The case falls under the particular jurisdiction of the court of Vietnam

4 The case has been resolved by a legally enforceable civil judgment or decision of the court of Vietnam or of a foreign court which has been recognized by the court of Vietnam or before the foreign tribunal accepts to resolve the case, the court of Vietnam has accepted and is resolving such case

5 The time-limit for enforcement of the judgment has expired in accordance with the laws of the country in which the court which has made such civil judgment or decision

or in accordance with the laws of Vietnam

6 The recognition and enforcement in Vietnam of the civil judgment or decision of the foreign court is contrary to the basic principles of the laws of Vietnam.”

In analysing these circumstances, the Vietnamese courts have the power to refuse the request for recognition and enforcement on the ground that to do so would

be contrary to basic principles of the laws (or public policy, public order) of Vietnam; infringement the jurisdiction of Vietnamese court; the reason come from judgment itself and especially, the violation of right of person whom enforcement is sought and reasonably absent from the trial in foreign court This is similar to the defense “natural justice” in common law countries92

or Article 34 (2) of Council Regulation (EC) No 44/2001 about inappropriate service to the defendant93, in the principle that both parties be given a fair opportunity in adversarial system If the defendant’s human right was violated in the original proceeding, recognition of the ensuing judgment could

93 Dr Rafael Arenas Garcia, ibid , page 20 Article 34 (2) of Council Regulation (EC) No 44/2001:

―where it was given in default of appearance, if the defendant was not served with the document which

instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him

to

arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;”

constitute a new violation of international law.94 It can be said that if judgments violate human rights, they must not be recognized and enforced This principle is suitable with the right to access to justice under human rights However, Vietnamese law approaches this principle in a narrow sphere, only about the presence of the defendant; but in practice, forms on violation of human right in civil proceeding must be broader, such

as the intervention of third parties

Persons seeking enforcement, or their legal representatives, shall be entitled to apply to a court of Vietnam for the recognition and enforcement of a foreign judgment, where the individuals against whom enforcement is sought permanently reside and work in Vietnam or the bodies or organizations against which enforcement is sought have principal offices in Vietnam or where the assets relating to the enforcement foreign judgment are located in Vietnam at the time of lodgement of the petition Concerned parties, persons with related rights and interests or their legal representatives will be entitled to apply to a court of Vietnam for not to recognize a foreign judgment for which no petition for enforcement in Vietnam is made.95

Regconition of foreign divorce by Vietnamese civil registration

authority

Before 2005, Decree 68/2002/NĐ-CP allowed Vietnamese civil registration authority to regconize judgment or decision of divorce by competent foreign authority,

in Clause 2, 3 Article 20.96 Decree 68 was guided by Circular 07/2002/TT-BTP dated

16 February 2002 of MOJ, Section 1.1.3, Part II provisioned that Vietnamese citizens who had judgment or decision of divorce by courts or other competent agencies of foreign countries must take the procedure to annotate in Department of Justice

94 Rafl Michaels, “Recognition and Enforcement of Foreign Judgments”, Max Planck Institute for Comparative

Public Law and International Law, Heidelberg and Oxford University Press, 2009, page 7

95 Article 344 CPC 2004

96 Clause 2,3 Article 20 Decree 68/2002/NĐ-CP:

“2.The divorces between Vietnamese citizens or between Vietnamese citizens and foreigners, which have

already been settled at courts or other competent agencies of foreign countries, shall be regconized in

Vietnam, if there are no applications for non-recognition of such divorces in Vietnam

3 The marriage recognition prescibed to in Clause 1 of this Article and the divorce recognition prescibed in Clause 2 of this article shall be annotated in registers according to the law provisions on civil status

registration.”