Indochine Counsel has recently updated its chapter in the Kluwar Online Enforcement of Foreign Judgments for 2020. You can access last year’s edition here:
As I had the opportunity to work on this, I thought I would list a few highlights of the procedure using that source as a reference. Below is a discussion of some important aspects of enforcing foreign judgments in Vietnam.
Civil foreign judgments and decisions of foreign courts are defined as:
judgments and decisions of foreign courts relating to civil matters, marriage and family, business, commerce or labour, decisions relating to assets in criminal or administrative judgments and decisions of foreign courts and other judgments or decisions of foreign courts which are considered to be a civil judgment or decision in accordance with the laws of Vietnam.
For a foreign judgment to be enforced in Vietnam, there must be reciprocity with the country from which the judgment originates. Courts are only able to recognize judgments as reciprocal if there is a treaty, actual reciprocity meaning the source country recognizes Vietnamese judgments, or there is a legal basis for recognition.
Upon a request for enforcement being lodged with the Vietnamese courts, it may be reviewed for procedural issues and also on substantive grounds insomuch as the substance of the judgment may affect national security, public welfare or the laws of Vietnam. The local courts can review and refuse to recognize a foreign judgment if:
- the civil judgment does not satisfy any of the conditions as regulated by international conventions to which Vietnam is a member;
- the civil judgment is not yet legally enforceable in accordance with the laws of the country in which the judgment was made;
- the person against whom enforcement is sought or his/her legal representative was absent at the foreign trial due to insufficient service of process;
- the case falls under the particular jurisdiction of the court of Vietnam such as cases involving land or divorce and family law; or other civil cases where the parties have the right to select local court for dispute resolution in accordance with the laws of Vietnam or an international treaty to which Vietnam is a member, and the parties agreed to select such local court;
- 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 judgment was accepted by the foreign court, the court of Vietnam had already accepted jurisdiction;
- the time limit for enforcement has expired in the country of judgment;
- the recognition and enforcement in Vietnam would be contrary to the basic principles of the laws of Vietnam; or
- the civil judgment has been revoked or enforcement suspended in the country where the civil judgment has been made.
Fraud in the foreign country is reachable by the courts of Vietnam.
If the defendant instituted proceedings in Vietnam such action would preclude the enforcement of a foreign judgment on the same issues. An appeal in the foreign courts would be treated according to the laws of the foreign country. In other words, if the decision is not final in the foreign country, it will most likely not be enforceable in Vietnam.
The local courts are obliged to examine service of process according to the laws of the country in which it was initiated. If the service is insufficient for the foreign courts, or in some way contradictory, the local court can examine that process and decide not to enforce a judgment because of it. Local rules for service should not factor into the review by the local court.
The Vietnamese courts may issue preliminary injunctive relief. The foreign complainant would be required to post a bond. Such a bond must be equal to the value of goods or things to be seized
Once the courts endorse an enforcement action it is delivered to the judgment enforcement office of the Ministry of Justice. The local judgment enforcement personnel will then notify the party against whom enforcement is granted of the enforcement decision. Such party has ten days to respond by complying voluntarily. If after that time period the party has failed to voluntarily comply with the enforcement action, the judgment enforcers will take coercive action to fulfil the court judgment.
The estimated time between lodging of a petition and enforcement, while set forth in the law, is uncertain. The local courts are underfunded and move slowly; therefore, any time estimate based on the actual law may vary widely from the actual time it can take. According to legislation, however, unopposed enforcement should take two months or if opposed from four to six months plus additional time if there are appeals.
If the judgment is enforced, it is enforced by attachment of movable property, receivables, yields, etc. Immovable property cannot be attached to satisfy a foreign judgment, but it can be auctioned. Other fines and fees may accrue to the respondent, but there are no provisions for civil imprisonment or of any action to prevent a respondent from leaving the country if he so chooses.
Vietnam does recognize foreign arbitral awards according to the New York Convention 1958. This means that an arbitral award granted by a recognized arbitration tribunal in another country which is also a member of the New York Convention will be recognized and enforced in Vietnam. Once a foreign arbitral award is recognized by the court, enforcement is the same as if it were a judgment of the court.