Under the Civil Procedure Code, the Ministry of Justice is the focal agency to receive applications for recognition and enforcement of foreign judgments or decisions and awards, review the legality and properness of dossiers, forward to a competent court, and announce results of the court consideration on the application or appeal. The Ministry of Justice will handle an application only when the party obligated under the judgment or decision has a place of residence or a place of work in Vietnam, or assets relating to the enforcement of a foreign court judgment or decision in Vietnam at the time of submission of the application.
Regarding the competence to consider applications for recognition and enforcement of foreign judgments or decisions or awards, Article 352 of the Code provides for People’s Courts of provinces or cities in which the party obligated under the judgment or decision resides or works, or assets related to the enforcement of the judgment or decision in Vietnam are located.
The Ministry of Justice shall, within seven working days after receiving the application and the attached documents, forward a dossier of the case to a competent court. If the court finds any unclear details in the civil judgment or decision of the foreign court or foreign arbitrator, it can require the court or the arbitrator that has rendered such judgment or award to provide further explanation. The court shall, within four months after the acceptance of the application, hold a hearing to consider the application if there is no evidence for suspension or termination. In the process of consideration and reviewing dossiers, the court also has to conduct investigations of the residence of the party obligated under the judgment or decision and assets related to the judgment or decision.
Under Article 355 of the Code, the consideration of an application will be in accordance with the following procedures:
- an application shall be considered at a hearing conducted by a Panel consisting of three Judges of which one Judge shall be the presiding judge as may be assigned the Chief Justice.
- the procurator of the Procuracy at the same level must participate in the hearing. If the procurator is absent from the court hearing, the hearing must be postponed.
- the court hearing shall be conducted in the presence of the party obligated under the judgment or his/her legal representative. The consideration of an application shall proceed if the party obligated under the judgment or his/her legal representative has filed a request for the court to consider the application in his/her absence or is absent although they have been duly summoned.
After having considered the application and the attached documents and listened to the opinions of the summoned persons and the procurator, the Panel shall discuss and decide by majority vote. The Panel has the right to issue a decision to recognize and enforce in Vietnam or to reject the civil judgment and decision of a foreign court. After the court of first instance, the appeal rights of persons concerned are ensured in accordance with Vietnamese law. The appeals and protests shall be considered by the Supreme Court according to appeal proceedings.
Under Clause 4 Article 355 of the Code, the Panel shall not re-try the case and only consider whether proceedings under which the judgment or decision were rendered were legal or not (only on examination of procedural bases, not substantive law). Recently some Panels have examined the substance of cases when considering applications for enforcement of foreign judgments or decisions or awards. The fault is commonly made that the panel compares the application of foreign laws with the provision of domestic law, so that they can review whether the substance of the case is in conformity with Vietnamese laws before making a decision on recognition and enforcement.
Additionally, there is a lack of cooperation between competent agencies in proceedings. The Ministry of Justice is a focal agency to receive dossiers from persons concerned, and is the responsible “communication channel” between domestic authorities and individuals and organizations that request execution of judgments (most of which are overseas). However the facts show that courts do not keep the Ministry of Justice informed when they handle or hold a hearing to consider applications, making it impossible for the Ministry of Justice is impossible to be proactive whenever it receives questions from foreign individuals or organizations. The Supreme People’s Court has not paid sufficient attention to providing directions for the handling of these cases. It results in courts giving inconsistent consideration to applications and causing unreliability for foreign individuals and organizations.