On 4 March 2020, Vietnam signed the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters. The Convention takes effect on 3 May 2020. Vietnam is the 63 country to join the Convention.
In joining the Convention, Vietnam continues its gradual accession to international judicial treaties. In 2016, Vietnam joined the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and it has long been a member of the New York Convention on the Recognition of Foreign Arbitral Awards.
Joining the Convention was deemed judicious by the authorities in view of the increasing number of civil cases that involved foreign elements. From 2008-2011 the number of cases with foreign elements averaged around 2,000 cases a year. By 2019 that number had doubled to 4,000 a year. Vietnam found that the obligation to provide evidence to foreign courts was reasonable in light of the benefit it would face in increased evidence gathering cases in its own courts.
The Convention is straightforward. If a civil or commercial case arises in a contracting state and it becomes evident that evidence related to the matter resides in another contracting state, then the first state–the requesting state–may issue a request to the state where the evidence resides for cooperation in obtaining that evidence.
Once a request is lodged with the relevant authority of the executing state, that state may proceed to conduct procedures to obtain that evidence. Such procedures will be in accordance with its own laws of evidence. Thus, a request from the United States for certain information that might not be available under the law of Vietnam, would be disallowed under the Convention. Conversely, witnesses or organizations providing evidence in Vietnam–in such an example–are also exempt from providing evidence if they are privileged under United States law.
There are other permutations for consular and diplomatic officers to obtain evidence in the territory of a contracting state, but they are secondary to the basic understanding that the Convention allows one contracting state to engage the assistance of another contracting state in obtaining evidence for a judicial matter in its own territory.
For investors in Vietnam, this is important as they deal in cross-border issues every day. They may hold a meeting making a decision in one country and then execute that decision in another. Each action they take–whether executive or on the ground–may create evidence. And now, for citizens of 62 other nations, evidence in Vietnam is available to be reached.
While of limited effectiveness at the moment for outward evidence–as it is often difficult to agree on dispute resolution in a country other than Vietnam–it may provide opportunities to introduce evidence into Vietnamese procedures that would not otherwise be available. This creates a broader net for evidence and forces the judicial officials to take into consideration a more international approach to the application of the law and, hopefully, force them to increase competence and capabilities in turn.
Often, too, investors in Vietnam turn to arbitration proceedings in Singapore, Malaysia, or other regional hubs. Foreign courts may be appealed to in efforts to obtain evidence or conduct other procedures in service to the arbitration. By joining the Convention, Vietnam now is liable to participate in such requests and to provide such evidence. It is a win-win situation and a positive step forward for Vietnam’s participation in the global community.