The role of "Official Letters" in Vietnam legal system

Official letters (công văn) are regarded as administrative documents (văn bản hành chính) as opposed to a legal instrument and are intended to contain correspondences from various authorities. However, in practice, in official letters addressed to other authorities or companies, many authorities express their views and interpretations of a legal provision. In many cases, Government authorities even give instruction on how certain issues should be addressed if there is no law regarding such issue or the law is not clear.

Accordingly, although official letters are not legal instruments and do not have the force of law, in practice, official letters provide useful interpretive aid and guidance for lawyers and practitioners in Vietnam. The downside of relying on official letters is that they are not always publicly available and the view or interpretation contained in an official letter can be changed in the future or conflict with other official letters or legal instruments. An official letter issued by one authority may not bind another authority if the other authority is not under control of the issuing authority.

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. 

Introducing Vietnam Business Law blog by Nguyen Quang Vu

This is my personal blog about Vietnam business law. From time to time, I will share my view, opinion and knowlegde about Vietnamese law on this blog. I hope you will find my posts helpful. Please feel free to leave comments or share your view as well.