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 Mutual Legal Assistance in Civil Matters, currently under development, contains many new provisions, most notably the addition of the application of foreign law. (Illustrative image)

Several new provisions are noteworthy in the draft Law.

According to a representative from the Department of International Law, Ministry of Justice , the draft Law on Mutual Legal Assistance in Civil Matters (Law on Mutual Legal Assistance in Civil Matters) is one of four draft laws developed based on the separation of the current Law on Mutual Legal Assistance. According to Resolution No. 129/2024/QH15 dated June 8, 2023, of the National Assembly on the Program for the development of laws and ordinances in 2025, adjusting the Program for the development of laws and ordinances in 2024, the draft law was discussed by the 15th National Assembly at its 9th session and will be passed at its 10th session.

The Ministry of Justice was tasked with leading the Government in submitting this draft Law. After incorporating the opinions of National Assembly deputies, National Assembly delegations, the National Council , and National Assembly committees, the draft Law was submitted to the 15th National Assembly for approval, comprising 4 chapters and 38 articles. The draft Law institutionalized the approved proposed policies for lawmaking, stipulated the procedures for implementing Vietnam's civil settlement requests and foreign civil settlement requests, and defined the responsibilities of the Ministry of Justice and other relevant ministries, agencies, and organizations in this work.

Compared to the provisions on mutual legal assistance in the current Law on Mutual Legal Assistance, the Draft Law contains many noteworthy new provisions. Specifically, it expands the scope of mutual legal assistance, thereby adding the provision of documents, judgments, and court decisions containing information on civil status; and providing legal information based on the domestication of international treaties on mutual legal assistance to which Vietnam is a signatory.

The draft also includes explanations of terms used in the Law on Civil Procedure, aiming to ensure consistent understanding. It adds provisions on the conditions for applying foreign law in cases where there is no international treaty, or where the international treaty does not provide for such a provision.

Applying information technology to reduce the time required to process requests for civil settlement of disputes, thereby improving implementation efficiency. Expanding the authority of foreign countries to implement civil settlement of disputes to reduce the workload for state agencies.

In particular, the provision on the application of foreign law in civil judicial assistance is considered a prominent new feature of the Draft Law. According to Article 4 of the draft Law, the application of foreign law in civil judicial assistance shall be carried out in accordance with the provisions of international treaties to which Vietnam is a party. 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 cases where Vietnam and a foreign country are not both parties to an international treaty, or where the international treaty to which the Socialist Republic of Vietnam is a party does not provide for the application of foreign law, the application of foreign law shall be considered when the following conditions are met: A competent authority or person of the foreign country requests in writing the application of that country's law; the application of foreign law does not contravene the principle of mutual legal assistance in civil matters as stipulated in Article 5 of this Law, and the consequences of the application do not contravene the fundamental principles of Vietnamese law.

Based on 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 law.

The receipt and processing of requests for mutual legal assistance in civil matters involving the application of foreign law shall be carried out in accordance with the provisions of Clause 2, Article 30 of this Law.

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

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

Contributing to resolving shortcomings in the operation of the Civil Judicial Assistance Program.

Nevertheless, some argue that the application of foreign law is a major issue, and that there are still many differing opinions on the policy regarding its application, thus requiring careful consideration of this provision in the draft Law. In explaining this, the Ministry of Justice, as the lead agency in drafting the Law, affirmed:

Firstly , the Law on Civil Procedure is a procedural law that supports the process of resolving civil cases with foreign elements that require civil procedure assistance. Therefore, the application of foreign law in civil procedure assistance essentially means applying the procedures and processes (methods of implementation) of the foreign party's request as stipulated by foreign law in specific cases. This does not govern the application of substantive law to resolve that civil case.

Secondly , the application of foreign law in civil litigation is not automatic; Article 4 of the draft Law stipulates strict conditions for the application of foreign law.

Thirdly , the provision on the application of foreign law is the codification of one of the policies in the approved proposal for the Law on Civil Procedure. Allowing the application of foreign law in civil legal relations is not a new issue; many Vietnamese legal documents already contain provisions 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 procedure proceedings, for example: Article 15 of the Korean Civil Procedure Law, Article 279 of the Chinese Civil Procedure Code, and Article 11a of the Swiss Law on International Private Law.

The Ministry of Justice hopes that the new points in the draft Law on Civil Procedure, including the provisions on the application of foreign law, will resolve current difficulties and shortcomings in civil procedure activities, improve the effectiveness of this work, and thereby support Vietnamese judicial agencies in having sufficient grounds to resolve civil cases and protect the legitimate rights and interests of individuals and organizations involved.

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