Hierarchy of Vietnamese legislation

The law of Vietnam consists of the following main legal instruments, which can be issued by various authorities:


                                                     
Issuing authorities
Instruments dated from 1 January 2009
The National Assembly
Constitution; Laws and Resolutions
The Standing Committee of the National Assembly
Ordinance; and Resolutions
The President
Order; and Decision
The Government
Decrees
The Prime Minister
Decisions
The Supreme Court
Resolutions
The Chief Judge of the Supreme Court
Circulars
The Procurator-General
Circulars
Ministries or ministerial level entities
Circulars
The General State Auditor
Decisions
Local People’s Committees
Decisions, and Directives
Local People’s Council
Resolutions

In addition to the above legal instruments, more than one issuing authorities can together issue a “joint” legal instrument. Legal instruments issued before 1 January 2009 may be issued in a different form under the old Law on Legal Instruments. Nowadays, Vietnamese copies of legal instruments in Vietnam are regularly published on the Official Gazette of the Government and  widely available on the internet (e.g. luatvietnam.com.vn; legal.khaitri.vn). English copies of certain important legal instruments are also available for a fee on certain websites (the most reliable one being www.vietnamlaws.com).

In general, legal instruments issued by higher authorities will have higher validity. Legal instruments issued by central authorities will be applicable nationwide while legal instruments issued by local authorities will be applicable within the specific localities only.

Usually, the “legal framework” covering a specific area of law includes:
·   a Law issued by the National Assembly setting out the general principles of such area;
·   one or more Decrees issued by the Government, which further clarify and implement the Law issued by the National Assembly; and
·   one or more Circulars issued by the relevant Ministries in charge of the area in question, which provide more detailed implementation of the Decrees issued by the Government.

In practice, the drafting of all of the above legal instruments is controlled by the relevant Ministry in charge of the relevant area. For example, the Ministry of Finance will control the drafting of all legislations regarding capital market such as the Law on Securities, the implementing Decrees and Circulars. In addition, usually the Law issued by the National Assembly can only be expected to be fully implemented in practice after the relevant Ministries issue the detailed implementing Circulars. Therefore, there is usually substantial delay between the time a Law of the National Assembly is issued and the time such Law is fully implemented in practice.

Amended Law on Lawyers causing potential troubles for foreign law firms in Vietnam



Last week, the National Assembly just passed the amended Law on Lawyers, which amends various provisions regarding the scope of operation of foreign law firms and foreign lawyers in Vietnam. Before being adopted, the amendments have raised alarms to foreign law firms in Vietnam (see this Article) although technically the amendments just repeat what were passed 5 years ago when Vietnam joined the WTO.

Under the WTO Commitments of Vietnam, foreign law firms are not allowed (1)    participation in legal proceedings in the capacity of defenders or representatives of their clients before the courts of Viet Nam; and (2) legal documentation and certification services of the laws of Viet Nam. While foreign law firms have widely accepted restriction (1) regarding appearing before the courts, no one pays attention to restriction (2) on “legal documentation and certificate” and what that means.

The repeat of the same restrictions in the amended Law on Lawyers has brought up this matter. In particular, one could make an argument that restriction (2) on legal documentation and certification services could prevent a foreign law firm in Vietnam from drafting or giving opinions Vietnamese governing law contracts. If this interpretation is taken by the Government and the MOJ then it will substantially restrict the scope of operation of foreign law firms in Vietnam unless they can find a local associated firm. It will be interesting to see what will happen when the implementing decree and circular are issued.