Application of foreign law: New provisions in the Draft Law on Judicial Assistance in Civil Matters

(Chinhphu.vn) - The draft Law on Mutual Legal Assistance in Civil Matters, which is being drafted, has many new provisions compared to the current Law on Mutual Legal Assistance, notably the addition of the application of foreign laws. This represents an important step in institutionalizing the policy of strengthening international cooperation in the civil field.

The draft Law on Judicial Assistance in Civil Matters, which is being drafted, has many new provisions, notably the addition of the application of foreign laws. Illustrative photo

Many notable new regulations in the draft Law

A representative of the Department of International Law, Ministry of Justice, said that the Law on Mutual Legal Assistance in Civil Matters (LLLA) is one of four Law projects developed on the basis of separating the current Law on Mutual Legal Assistance. According to Resolution No. 129/2024/QH15 dated June 8, 2023 of the National Assembly on the Law and Ordinance Development Program for 2025, adjusting the Law and Ordinance Development Program for 2024, the Law project was commented on by the 15th National Assembly at the 9th Session and will be passed at the 10th Session.

The Ministry of Justice was assigned to preside over and assist the Government in submitting this Law project. After receiving comments from National Assembly Deputies, National Assembly Delegations, the Nationality Council and National Assembly Committees, the draft Law was submitted to the 15th National Assembly for approval, consisting of 04 Chapters and 38 Articles. The draft Law institutionalized the approved proposed law-making policies, regulated the order and procedures for implementing Vietnam's TTTPDS requests and foreign TTTPDS requests, and the responsibilities of the Ministry of Justice and relevant ministries, branches and agencies in this work.

Compared to the provisions on TTTPDS of the current Law on Mutual Legal Assistance, the Draft Law has many notable new provisions. Specifically, the scope of TTTPDS is expanded, thereby adding the scope of providing documents, judgments, and decisions of courts containing information on civil status; providing legal information on the basis of internalizing international TTTPDS treaties of which Vietnam is a member.

The draft also adds an explanation of the terms used in the Law on TTTPDS, to ensure a unified understanding. It also adds provisions on the conditions for applying foreign law in cases where there is no international treaty, or the international treaty does not provide for it.

Apply information technology to reduce the time to transfer TTTPDS requests, improve implementation efficiency. Expand the authority to implement foreign TTTPDS to reduce the workload for state agencies.

In particular, the provisions on the application of foreign law in civil judicial assistance are considered a prominent new point of the Draft. According to Article 4 of the Draft Law, the application of foreign law in civil judicial assistance is implemented in accordance with the provisions of international treaties to which Vietnam is a member. The Ministry of Justice shall preside over and coordinate with the Supreme People's Court, the Ministry of Foreign Affairs and other relevant agencies to consider requests for civil judicial assistance that propose the application of foreign law.

In case Vietnam and a foreign country are not members of an international treaty, or the international treaty to which the Socialist Republic of Vietnam is a member does not stipulate, the application of foreign law shall be considered when all the following conditions are met: The competent authority or person of the foreign country makes a written request for the application of that country's law; The application of foreign law is not contrary to the principle of mutual legal assistance in civil matters prescribed in Article 5 of this Law and the consequences of the application are not contrary to the fundamental principles of Vietnamese law.

Pursuant to the provisions of Points a and b of this Clause and relevant laws, the Ministry of Justice shall preside over and coordinate with the Supreme People's Court, the Ministry of Foreign Affairs and other relevant agencies to consider and decide on the application of foreign laws.

The reception and processing of requests for civil judicial assistance with a request to apply foreign law shall be carried out in accordance with the provisions of Clause 2, Article 30 of this Law.

In principle, the implementation of foreign TTTPDS requests will be carried out in accordance with Vietnamese law. The provision in Article 4 allowing the application of foreign law to implement TTTPDS demonstrates Vietnam's goodwill and cooperation in resolving civil cases with foreign elements.

However, to ensure national sovereignty in the judicial field, the application of foreign law is not automatic but must meet all the conditions in Clause 2. At the same time, the permission to apply foreign law must be carefully considered by the Ministry of Justice in coordination with relevant agencies.

Contribute to solving problems in TTTPDS activities

However, there are still some opinions that the application of foreign law is a big problem, the policy for the application of foreign law still has many different views, so it is necessary to consider this provision in the draft Law. Explaining this, as the agency in charge of drafting the Law project, the Ministry of Justice affirmed:

Firstly , the Law on Civil Procedure is a procedural law, supporting the process of resolving civil cases with foreign elements requiring a request for civil procedure. Therefore, the application of foreign law in civil procedure is essentially the application of the order and procedures for implementing (the method of implementing) the request of the foreign party according to the provisions of foreign law in specific cases. This does not regulate the application of substantive law to resolve such civil case.

Second , the application of foreign law in TTTPDS is not automatic. Article 4 of the draft Law has strict regulations on the conditions for applying foreign law.

Third , the regulation on the application of foreign law is the legalization of one of the policies in the proposal to develop the Law on Civil Procedure that has been approved. Allowing the application of foreign law in civil legal relations is not a new issue. There are many legal documents of Vietnam that have regulations on the application of foreign law, especially the 2015 Civil Code and the 2015 Civil Procedure Code.

Fourth , research on international experience shows that many countries allow the application of foreign law in civil arbitration, for example: Article 15 of the Civil Arbitration Law of Korea, Article 279 of the Civil Procedure Code of China, Article 11a of the International Private Law of Switzerland.

The Ministry of Justice hopes that with the new points of the draft Law on Civil Procedure, including the provisions on the application of foreign laws, it will resolve current difficulties and problems in civil procedure activities, improve the effectiveness of this work, thereby supporting Vietnam's judicial agencies to have sufficient basis to resolve civil cases, protect the rights and legitimate interests of relevant individuals and organizations.

Dieu Anh

Source: https://baochinhphu.vn/ap-dung-phap-luat-nuoc-ngoai-quy-dinh-moi-trong-du-thao-luat-tuong-tro-tu-phap-ve-dan-su-102251026112446244.htm