Currently, with economic development and increasing international integration, Vietnam has participated in the Vienna Convention, trade agreements (CPTPP, EVFTA, AFTA, and others), etc. This has enhanced the application of foreign laws across countries. So, when is foreign law applied? What are Vietnam’s regulations on this issue? Let’s explore this with NPLaw through the following article.
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I. Current situation of applying foreign law in Vietnam
With the development of commercial activities, the application of foreign law in Vietnam has made significant progress. Vietnamese enterprises have expanded their trade with other countries, resulting in numerous contracts signed in bilingual formats. Moreover, in these contracts, the parties have effectively used foreign legal provisions to regulate the agreements. This shows that the application of foreign law in Vietnam has become more flexible compared to the past.
II. Legal provisions relating to the application of foreign law in Vietnam
1. When is foreign law applied in Vietnam?
Currently, civil relations involving foreign elements are the most common area in which foreign law is applied in Vietnam. The application of foreign law is invoked in the following cases:
- The applicable law for civil relations involving foreign elements is determined based on international treaties to which the Socialist Republic of Vietnam is a member or under Vietnamese law.
- Example: Vietnam is a member of the 1980 Vienna Convention. Except for the reserved provisions, Vietnam is obligated to comply with the terms it has agreed to.
- The parties agree to choose foreign law in accordance with Clause 2, Article 664 of the 2015 Civil Code.
- Example: A is a Vietnamese trader, B is a U.S. trader, and they agree to apply French law to govern their sales transaction.
- When a conflict of laws rule refers to the application of foreign law. These conflict rules may originate from international treaties to which Vietnam is a member or from Vietnamese domestic law.
- Example: A (a Vietnamese worker) marries B (a Korean national). Article 126 of the Law on Marriage and Family 2014 states that, in marriages between a Vietnamese citizen and a foreigner, each party must comply with their own country's laws regarding marriage conditions. If the marriage takes place before a competent Vietnamese authority, the foreigner must also comply with the provisions of this law regarding marriage conditions. In this case, Mr. B must comply with both Korean and Vietnamese laws.
2. Conditions for applying foreign law in Vietnam
According to Article 670 of the Civil Code 2015, the application of foreign law in Vietnam must meet the following conditions:
- The consequences of applying foreign law must not be contrary to the fundamental principles of Vietnamese law;
- The content of the foreign law must be identifiable even after taking necessary procedural measures.
3. Why is it necessary to apply foreign law in Vietnam?
Applying foreign law in Vietnam is necessary and inevitable in the context of international integration, for the following reasons:
- Ensuring fairness and transparency: In transactions or disputes involving foreign elements, the application of foreign law helps protect the rights of the parties fairly and transparently.
- Promoting international cooperation: The application of foreign law helps strengthen international cooperation in the legal field, contributing to promoting partnerships between Vietnam and other countries.
- Encouraging foreign investment: Applying foreign law can increase the confidence of foreign investors, thereby attracting more capital into Vietnam.
- Complying with international law: Vietnam is a member of many international organizations and has signed various treaties. The application of foreign law helps ensure compliance with these agreements.
III.Questions about applying foreign law in Vietnam
1. Can foreign law be applied to civil transactions in Vietnam?
According to the 2015 Civil Code, foreign law may be applied to civil transactions involving foreign elements under Article 664, specifically:
- The applicable law is determined according to international treaties to which the Socialist Republic of Vietnam is a member or Vietnamese law.
- If the international treaties or Vietnamese law allow the parties to choose, then the applicable law is determined based on such a choice.
- The law of the country with the closest connection to the civil relation involving foreign elements may apply.
2. Principles of applying foreign law in Vietnam
The application of foreign law in Vietnam is subject to the following principles:
- Voluntariness: Parties in a transaction or dispute have the right to choose the law of a specific country.
- Consistency: Once a choice of law has been made, the parties may not change it unless all parties agree.
- Respect for national sovereignty and interests: Foreign law may only be applied when it does not violate the sovereignty, national interests, or public order of Vietnam.
- Compliance with social ethics: Foreign law must not violate the social ethics of Vietnam.
- Closest connection principle: In the absence of an agreement on the applicable law, the law of the country most closely connected to the transaction or dispute will apply.
- Priority of international law: In case of a conflict between foreign law and international law to which Vietnam is a member, international law shall prevail.
3. When is the application of foreign law not allowed in Vietnam?
According to Article 670 of the 2015 Civil Code, foreign law shall not be applied in the following cases:
- If the consequences of applying foreign law are contrary to the fundamental principles of Vietnamese law;
- If the content of foreign law cannot be determined despite all necessary procedural efforts.
IV. Legal consultation services related to applying foreign law in Vietnam
The above information provides an overview of the application of foreign law in Vietnam. For further support and legal guidance, you may contact NPLaw for consultation from our experienced team of lawyers and legal experts.
