Role of international treaties in Vietnamese law
Vietnam is
a party to various international treaties. Many of those contain important
market entry commitments, National Treatment commitments or Most Favoured
Nations Treatments commitments. Accordingly, international treaties sometimes
play an important role in determining the rights and obligations of a foreign
investor. However, when studying an international treaty, one should note the
following:
·
an
international treaty can only be directly applied in Vietnam if the provisions
of the relevant treaty are specific and clear enough and the Vietnamese
Government decides to apply those provisions directly. Accordingly, until there
is a specific law issued to implement an international treaty, Vietnamese
authorities may decide not to apply an international treaty on the basis that
such provisions are not specific and
clear enough; and
·
in
case the provisions of an international treaty and the provisions of a domestic
law are “different” on the same issue, the international treaty will prevail. It
is not clear what constitutes a difference between an international treaty and
a domestic law.
Usually, an
international treaty is intended to provide for the minimum rights and benefits
that Vietnam needs to provide to a foreign investor. Therefore, Vietnam should
be free to issue a law, which contains better or broader rights and benefits.
However, in some cases where domestic laws contain better and broader rights
and benefits, the authority may still refuse to apply the domestic laws on the
ground that they are “different” from the provisions of the relevant
international treaty. A notable example is the view taken by the Working
Group Implementing the Enterprise Law and the Investment Law (Working Group) about the applicability
of Resolution 71/2006 on the voting and quorum thresholds of a joint stock
company and a limited liability company (more on this tomorrow).