Under the Vietnam legislation, when carefully considering that the lawful rights and interests are infringed, individuals/ organizations shall have the right to file a commercial lawsuit to a competent Court for dispute resolution in Vietnam.
However, in order for the commercial litigation process initiated effectively and quickly, the Plaintiff should fully understand the legal proceedings of the Court in Vietnam, prepare a necessary petition, evidence and documents to make sure that the competent Court can make a legally effective judgment or decision most beneficial to him/her. This process must be carefully prepared both in the pre-litigation phase and litigation process. In general, the following proceedings should be followed:
I. Pre-litigation phase
This phase requires the Plaintiff to clearly and precisely determine his/her claims stated in the petition as well as choose the competent Court in Vietnam and method of filing the petition, prepare required documents and evidence before submission.
1. Determination of the competent Court in commercial cases
The Plaintiff should adhere to the provisions of Article 30 of the Civil Procedure Code to determine whether the dispute is subject to the jurisdiction of the Court or not.
In case the parties have a lawful agreement on dispute resolution by a commercial arbitration in Vietnam, the Court shall not make any acceptance to settle such cases accordingly. Or if a legally effective judgment or decision in settlement of the dispute has been made by the Court in Vietnam, the parties are not entitled to re-initiate the lawsuit (except for some cases at Point c, Clause 1, Article 192 of the Code of Civil Procedure).
2. Determination of the statute of limitations to file a commercial lawsuit
Based on the law relations and types of dispute, the Plaintiff can refer to the regulations of law to precisely determine the statue of limitations to file a lawsuit. The statute of limitations is usually calculated once individuals or organizations realize that their legitimate rights and interests have been infringed (unless otherwise stated by the laws).
E.g.: the statue of limitations to file a lawsuit of commercial dispute cases 02 years, 03 years for insurance business contract, and 1 year for dispute over damage or loss of goods under a contract of carriage, etc.
3. Determination of the legal status of the parties
In order for the Court in Vietnam to have grounds for resolution of the case, the Plaintiff is required to clearly determine the legal status of each party involved in the case such us the Defendant (who infringed the lawful rights and interests of the Plaintiff), or person(s) with related interests or obligations.
As per commercial lawsuit cases, in case of a contract/transaction established and performed by a branch or representative office, which is under dispute and in need of settlement by the Court, it is the legal entity (the company), which is determined to participate in the legal proceedings instead of the branch or representative office.
4. Determination of the competent Court in Vietnam for settlement
In addition to determining whether the case is under the jurisdiction of the Court specified in Section (1) herein, the Plaintiff needs to exactly determine which Court in Vietnam has the jurisdiction over commercial disputes according to first-instance trial procedures, specifically:
a) Jurisdiction by trial level: The Plaintiff should base on Article 35 and 37 of the Code of Civil Procedure to determine whether the case shall be subject to the jurisdiction of the provincial Court or the district one.
b) Jurisdiction by territory: Depending on the law relations of dispute or agreement of the disputing parties, the Plaintiff shall determine the territorial jurisdiction of the Court under the Article 39 and 40, Code of Civil Procedure.
5. Collection of documents and evidence in relation to the dispute
Collection and assessment of documents, evidence regarding the dispute would be considered as an extremely important step during the pre-litigation phase as well as the whole dispute resolution process. The documents and evidence submitted by the parties are also an important basis for the Court’s consideration to partially/ fully accept or reject the claims of the Plaintiff.
6. Submission of documents to the Court
a) List of the required documents to be submitted to the Court:
- A petition;
- Documents and evidence relevant to the dispute;
- Documents indicating the legal status of the Plaintiff, Defendant, Persons with related interests or obligations (notarized copies);
(As per documents and evidence provided by foreign competent authorities, they must be translated into Vietnamese with certification, notarization and consular authentication)
b) Submission methods:
The Plaintiff can submit the documents related to the lawsuit by one of the following methods:
- Submit directly to the receiving division of the competent Court in Vietnam;
- Send by postal;
- Submit online to the Electronic Information Portal of the Court (if any).
II. Litigation phase
This is the decisive phase of the process. Thus, the Plaintiff must comply with the legal proceedings and take necessary strategic measures to protect his/her lawful interests, in particular:
- Make payment of the advance Court fee to the Civil Judgment Enforcement Authority;
- Submit a self declaration in writing;
- Review and evaluate the counterclaim of the Defendant and independent claims of the Person with related interests or obligations (if any);
- Request the Court to apply interim and emergency measures to ensure the dispute resolution and enforcement (Note: The Plaintiff can request the Court to apply the interim and emergency measures at the time of submission of the petition).
- Further provide the documents, evidence as requested by the Court or request the Court to collect the documents, evidence (if any);
- Make payment for the other litigation fee(s) (if any);
- Request or participate in the confrontation (if any);
- Request or participate in on-site appraisal, property valuation (if any);
- Participate in mediation meetings; disclosure of evidence meetings;
- Participate in the hearing.
The above are the general legal procedures and basic advice on dispute resolution of commercial cases at Court in Vietnam. Furthermore, the Plaintiff should, depending on the complication of the dispute, take some other appropriate legal measures to protect his/her lawful rights and interests.
Author: Lawyer. Le Quoc Viet
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