DISPUTE RESOLUTION, PAGE 3

6. What is the extent of pre-trial exchange of evidence, and how is evidence presented at trial?

A procedure permitting pre-trial exchange of evidence does not exist in Vietnam. Rather, the Court obtains statements and evidence from the plaintiff and defendant and each party has a right to see the evidence presented by the other party⁴.

The parties are also permitted to photocopy evidence presented by other parties or collected by the Court and can request the Court to collect evidence on their behalf where they are unable to collect it themselves. The primary source of evidence is oral testimony from individuals whom the Court has accepted as witnesses with direct knowledge of the matters in dispute. Cross-examination of witnesses is permitted.

Expert witnesses may be called to comment upon technical matters, and written evidence in the Vietnamese language may be submitted directly to the Court.

7. To what extent are the parties able to control the procedure and the timetable?

How quick is the process? The Court, rather than the parties to the dispute, controls the procedure. The procedural timetable is fixed by law. If the parties can not reach a settlement at the Court arranged conciliation meetings, then by law the hearing must commence within four months from the date on which the Court accepted the case.

If, however, there is a legitimate reason why a hearing can not commence (e.g. the complexity of the case), then this period may be extended by a further two months. If the Court determines that the matters in dispute are of an economic or labour nature, then a hearing must commence within two to three months from the date on which the Court accepted the case.

8. What interim remedies are available to preserve the parties' interests pending judgment?

The Court may issue interim orders during proceedings to protect evidence or to ensure enforcement of a judgment at a future date. In cases of emergency, the parties can request interim remedies concurrently with submitting the petition to the court. Interim orders may be made to take an inventory of the assets in dispute, to freeze a bank account, to prohibit a party from doing something or to require a party to do something or to permit the harvesting or preservation of products and/or permit the sale of perishable products. However in practice, interim orders are made very rarely.

9. What substantive remedies are available?

The Court has wide powers to provide remedies, including injunctive relief (see above), declarations and orders for an account of profits, a transfer of property, or monetary awards of damages to compensate for losses suffered. Non-compensatory damages are only awarded in instances of particularly oppressive conduct (and are extremely rare).

10. What means of enforcement are available?

Court orders are currently enforced by reference to procedures set out in Ordinance on Enforcement of Civil Judgments dated 14 January 2004 (“2004 Ordinance”). The 2004 Ordinance provides details of the powers of the “Office of Judgment Enforcement” under the Ministry of Justice, which is the body responsible for managing the enforcement of civil orders. Provincial and District “Offices of Judgment Enforcement” are responsible for enforcing civil orders from the People’s Supreme, Provincial and District Courts.

A judgment creditor can commence an enforcement action by filing an application for enforcement at the relevant Office of Judgment Enforcement. The Office of Judgment Enforcement will review the application and if it is in order, will issue a “Judgment Enforcement Decision” and contact the judgment debtor to request settlement of the judgment debt. If the judgment debtor fails to settle the judgment debt within a stated period, the Office of Judgment Enforcement then decides on the most effective method of enforcement. Once a Judgment Enforcement Decision has been issued, the Office of Judgment Enforcement must actively enforce the decision on behalf of the judgment creditor.

The Office of Judgment Enforcement has wide powers including, amongst other things, the right to:
(i) deduct sums from the judgment debtor’s bank account, and seize judgment debtors’ monies and valuable papers;
(ii) freeze judgment debtors’ bank accounts or other assets in banks and credit organisations;
(iii) distrain assets of the judgment debtor, including those being held by third parties;
(iv) take possession of judgment debtor’s house and land use right; and
(v) ban the judgment debtor from undertaking certain work, or force the judgment debtor to undertake certain work. To date and in practice, judgment enforcement has been problematic in Vietnam.

11. Does the Court have power to order costs?

Are foreign claimants required to provide security for costs? The court has the power to order costs. However, lawyers’ costs must normally be borne by the parties themselves unless the parties in dispute have otherwise agreed, and we are not aware of any Vietnamese Court that has awarded lawyers’ costs to a successful party unless agreed previously by the losing party. However, certain guidelines on costs are expected shortly from the Vietnamese authorities which are expected to clarify when costs can be recovered. Foreign claimants are not required to provide security for costs.

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⁴In practice, the prior permission of the Court must be obtained before a review of the other party’s evidence will be allowed and while such permission will normally be granted by the Court, such permission is often only granted to a party’s appointed lawyer and not to any other authorised persons.