PROTECTION OF HUMAN RIGHTS IN THE INTERNATIONAL CIVIL JUDICIAL ASSISTANCE IN VIETNAM (luận văn thạc sỹ luật)

HO CHI MINH CITY UNIVERSITY OF LAW
MANAGING BOARD OF SPECIAL PROGRAMS
------ -----

Bachelor’s thesis
Major: International law

PROTECTION OF HUMAN RIGHTS IN THE
INTERNATIONAL CIVIL JUDICIAL
ASSISTANCE IN VIETNAM
STUDENT: TRAN MINH TUAN
STUDENT NUMBER: 0955050224
CLASS: Advance Class 34th Course
SUPERVISOR: Dr. TRAN THANG LONG

HO CHI MINH CITY, 2013


HO CHI MINH CITY UNIVERSITY OF LAW
MANAGING BOARD OF SPECIAL TRAINING PROGRAMS
------ -----

BACHELOR’S THESIS
REGULAR EDUCATION COURSE 34 (2009 – 2013)

PROTECTION OF HUMAN RIGHTS IN THE
INTERNATIONAL CIVIL JUDICIAL
ASSISTANCE IN VIETNAM

STUDENT: TRAN MINH TUAN
STUDENT CODE: 0955050224

CLASS: ADVANCE CLASS 34th COURSE
SUPERVISOR: Dr. TRAN THANG LONG

HO CHI MINH CITY
2013


Acknowledgments

In this thesis, thanks are given to my family and teachers, who have supported
and encouraged me during my study. Moreover, I emotionally appreciate our
university lecturers for their teaching and enthusiasm. Specially thanks to Dr Tran
Thang Long for being my supervisor and helping me throughout this course with
valuable comment and important amendments. Finally, I would like to thanks to Mrs
Mai Hong Quy, our university principal, who promotes this advance program and
gives many students like me a chance to participate in.


Commitment

I hereby commit that the thesis “Protection of human rights in the international
civil judicial assistance in Vietnam” is my own research under Lecturer Dr. Tran
Thang Long’s supervisor. I would bear full responsibility for my commitment.
16 July 2013
The thesis’s author signature


TABLE OF CONTENTS
Introduction ....................................................................................................................1
Chapter 1. Overview of protection of human rights in the international civil

judicial assistance ...........................................................................................................7
1.1. Overview of human rights .....................................................................................7
1.1.1. Historical background and definition of human rights ..................................7
1.1.2. Human rights related to international civil judicial assistance.......................9
1.2. International civil judicial assistance – basic understandings .............................12
1.2.1. Concept of international civil judicial assistance .........................................12
1.2.2.

Characteristics of international civil judicial assistance .........................18

1.2.3.

International civil judicial assistance in international law .....................20

1.2.4. International civil judicial assistance in Vietnam ........................................26
1.2.4.1. Groundwork for international civil judicial assistance in Vietnam.....26
1.2.4.2. Judicial entrustment .............................................................................27
1.2.4.3.Recognition and Enforcement of Foreign Judgments ..........................30
1.3. Reciprocal relationship between protection of human rights and international
civil judicial assistance ...............................................................................................34
Chapter 2. Legal practice on protection of human rights in the field of
international civil judicial assistance in Vietnam – Recommendations for
improvement .................................................................................................................37
2.1.1. Practices of human rights in judicial entrustment in Vietnam .....................37
2.1.2. Limitations in the current regulations on the protection of human rights in
judicial entrusment in Vietnam ..............................................................................42
2.1.2.1. Judicial entrustment process according to Joint Circular No
15/2011/TTLT- BTP-BNG-TANDTC ..................................................................43

2.1.2.2. Handling of results of the delivery of judicial entrusment documents
to overseas Vietnamese citizens .............................................................................45
2.1.2.3Handling of judicial entrusment results for foreigners residing overseas46
2.2. Recognition and enforcement of foreign judgment.............................................48
2.2.1. Practices of human right in recognition and enforcement of foreign
judgment in Vietnam ..............................................................................................48
2.2.2. Limitations in the current regulations on protection of human rights in
judicial entrusment in Vietnam ..............................................................................50
2.2.2.1. Determination of person who has right to file applications requesting50
2.2.2.2. Conditions for the recognition and enforcement of foreign judgments51
2.2.2.3. Recognition and enforcement of foreign judgments which otherwise
obtained by means of proceedings ...................................................................54
2.2.2.4.Recognition of foreign legal separation ...............................................56
2.2.2.5.The principle of reciprocity ..................................................................60
2.2.2.6.Conflicting decision..............................................................................62
2.2.2.7.Regconition of foreign divorce by Vietnamese civil registration
authority ............................................................................................................64
2.3. Improving legal provision on protection of human rights in international
judicial assistance in Vietnam ....................................................................................65
Conclusion .....................................................................................................................71


ABBREVIATIONS

ICJA

International civil judicial assistance

CPC 2004

Vietnamese Civil Procedure Code 2004
(revised 2011)

LJA 2007

Vietnamese Law on Judicial Assistance
2007

Circular 15

Joint Circular No. 15/2011/TTLT-BTPBNG-TANDTC guiding the application
of a number of provisions of the Law on
judicial Assistance on judicial assistance
in the civil domain.

Circular 16

Circular No. 16/2010/TT-BTP dated
October 8 2010 guiding recording in the
civil status book on divorces were
conducted overseas.

Report No 307/BC-CP

Report No 307/BC-CP of Government
dated 31 October 2012 on judicial
assistance


1

Introduction

1. The necessity of doing research
International co-operation is the legal duty of the states in modern international
law.1 International law has developed through increased co-operation among states
in recent years, for instance, the European Union. Due to the growth in
international trade and private international law, the demand for and complexity of
judicial actions in another territory are growing and become critical. However, the
principle of sovereignty is the barrier for these actions, which limits the ability of
national courts to settle the dispute effectively.
In the aftermath of the World War II, there was increasing concern for the
protection of human rights. The main aspect of human rights in private
international law or international procedure is civil and political rights, which could
be affected negatively by the barrier of principle of sovereignty.
International civil judicial assistance is indispensable element of international
co-operation. The system of international judicial assistance is based on
international treaties or the principle of reciprocity. This aim is cooperation
between judicial authorities in various matters of law in cross-border civil
litigation, which overcome the limitation of sovereignty principle and protect the
human rights.
Since the Renewal took place in 1986, Vietnam has been achieving significant
success in socio-economy, diplomatic and national security. In diplomatic sphere,
Vietnam has established diplomatic relationships with 180 nations all over the
world. Particular significance was Vietnam's acceptance into ASEAN in July 1995
and WTO in 2007. This led to the development of civil transaction between
Vietnamese citizens and foreigners. According to statistics from Vietnamese
1

United Nations. General Assembly. Special Committee on Principles of International Law concerning Friendly

Relations and Co-operation among States, Consideration of principles of international law concerning friendly
relations and co-operation among states in accordance with the charter of the United Nations: report, United
Nations Publisher, 1966, page 191.


2
relevant agencies, currently there are roughly 4 million overseas Vietnamese living,
-+working, learning in 103 countries and territories. Over 80% are currently living
in developed industrial countries; 3.2 million have long-term stay permits; over 500
thousand laborers are working under term contracts in over 40 countries and
territories; tens of thousands of students, researchers, collaborators are learning,
working abroad; nearly 300 thousand, mainly Vietnamese women who married to
foreigners.2
The unavoidable result of civil transaction involving foreign elements is the
cross-border dispute. The protection of Vietnamese citizens rights in these disputes
must based on the judicial co-operation between Vietnam and foreign countries. In
addition, the Vietnamese legal system must create the effective framework.
However, in practice, the rights of Vietnamese citizens in cross-border dispute in
many cases were infringed by ineffective international civil judicial assistance.
Improvement of quality of international civil judicial assistance in Vietnam is the
condition for protects human rights better.
Based on the above matters, the author decided to choose the topic “Protection
of human rights in the international civil judicial assistance in Vietnam” for
the author’s graduate thesis.
2. Literature review
According to the author research, there are many books, journal articles or
theses related to international civil judicial assistance in Vietnam. Remarkable
documents as follows:
-

“Theoretical and practical ground for the issuance of international judicial
assistance ordinance” of Institute of Legal scientific, Ministry of Justice,
2001. This document focuses on the importance of international civil
judicial assistance and the application to Vietnam.

2

“General report on the migration of Vietnamese citizens overseas” at the Conference on International
Migration and Data Management for Policy Development, Hanoi, June 1-2, 2011.
/>

3
-

“Report on situation of international civil judicial assistance treaties
between Vietnam and foreign countries, and the indispensable participation
of Vietnam into Hague Conference about private international law”,
Department of International Cooperation, Ministry of Justice. This is the
review of international civil judicial assistance treaties between Vietnam and
foreign countries; as well as the challenges and difficulties without
international treaties.

-

“International civil judicial assistance between Vietnam and foreign
countries”, 2011 Bachelor thesis in Ho Chi Minh City University of Law by
Do Thi Thu Hien. This thesis gave theoretical and practical issues in
international civil judicial assistance in Vietnam.

-

Student scientific research at Ho Chi Minh City University of Law 2012,
“Foreign divorce in Vietnam” by Tran Minh Anh, Tran Minh Tuan and
Hoang Minh Du. This research mentions the role of judicial entrustment and
recognition and enforcement of foreign judgments in protection of
Vietnamese women in foreign divorce.

In Vietnam, although there have been a great amount of researches on
international civil judicial assistance, there is no detailed research on the role of
international civil judicial assistance in human rights. In the EU, to improve,
simplify and expedite judicial co-operation between the member states and to
promote access to justice for people engaging in cross-border dispute3, there are
some remarkable articles:
-

Professor Theodor JR Schilling4, “The enforcement of Foreign Judgment in
the Jurisprudence of the European Court of Human Rights”, January 2012.
This researching concentrates on the fair trial in civil matters related to
recognition and enforcement of foreign judgment.

3

Werner Miguel Kuhn Baca, “The principle of mutual recognition of judicial decisions in EU law in the light of
the ‗Full Faith and Credit‖ clause of the US constitution”, Biblioteca Digital Andina, page 27.
4
Professor of law, Humboldt University of Berlin, Germany.


4
-

Werner Miguel Kuhn Baca5, “The principle of mutual recognition of judicial
decisions in EU law in the light of the ‗Full Faith and Credit‖ clause of the
US constitution”, Biblioteca Digital Andina. This paper shows a
comparative analysis of the law of United States and EU on the principle of
mutual recognition; proposal for improvement of freedom, security and
justice area in EU.

-

Dr. Rafael Arenas Garcia, “Abolition of Exequatur: Problems and solutions.
Mutual recognition, mutual trust and recognition of foreign judgments: Too
many words in the sea”, Year Books of Private International Law 2010. This
article analyzes the Regulation 44/2001 of EU and the role of this
Regulation on protection of human rights.

In general, these researches mainly examine the role of recognition and
enforcement of foreign judgment in European Community to ensure the Article 6 of
the European Convention on Human Rights and Fundamental Freedoms (ECHR) about
fair trial in civil matters. The general relationship between international civil judicial
assistance and human rights in these articles has not mentioned yet.
This thesis serves as a combination of these researches about theoretical basic of
international civil judicial assistance. In addition, the thesis presents detailed analysis
of the relationship between human rights and international judicial assistance through
practical cases in Vietnam.
3. The scope of the thesis
Due to limitation of time, this thesis just concentrates on research the following
points:
Firstly, it is to provide the concept and characteristic of international civil judicial
assistance, the importance of human rights; and the reciprocal relationship between

them. However, it does not aim to the details of human rights; the theoretical basic of
judicial entrustment and recognition and enforcement of foreign judgment.
5

Former legal Secretary at the Court of Justice of the European Union, current legal officer at the EFTA
Surveillance Authority


5
Secondly, the thesis does not intend to cover all of the issues on international civil
judicial assistance in Vietnam and all of legal documents about this. The scope is
limited in provisions of Civil Procedure Code 2004, Joint Circular 15/2011/TTLTBTP-BNG-TANDTC, Circular 16/2010/TT-BTP and manly focused on substantive
law rather than procedural law.
Thirdly, with regard to selection of foreign jurisdiction for comparison, the thesis
will only focus on foreign laws of certain developed countries United States, United
Kingdom, Canada, Switzerland or the multilateral treaties.
Finally, in the practical case in Vietnam, the thesis takes landmark situations into
consideration for analyzing.
4. Methodology
For the purpose of this thesis, the author will combine different legal methods in
the ground of Marxist-Leninist methodology as follows
-

Description: is used mainly in Chapter I to present definitions, concepts and
provisions of law.

-

Comparison: clarifying and comparing the similarities and differences of
Vietnamese law with other foreign laws and relevant international rules in

both Chapter I and Chapter II.

-

Case study: illustrate the Vietnam’s practice of international civil judicial
assistance at the current time in chapter II.

-

Synthetic method: collecting relevant information from different sources
such as books, journal articles, cases, etc.

-

Inductive method: used in chapter I and chapter II to present the concept of
human rights; concept and characteristics of international civil judicial
assistance; the reciprocal relationship between them.

-

Analysis:

used

recommendations.
5. Significance

in

all

chapters,

to

withdraw

conclusions

and


6
Firstly, the thesis provides a general understanding of some fundamental academic
issues of international civil judicial assistance and its relation to the human rights
concerns.
Secondly, the thesis offers analyses of the legislation of Vietnamese law on
international civil judicial assistance in order to point out its ineffectiveness and the
reasons.
Thirdly, the thesis introduces foreign laws and relevant international rules on the
thesis matter in order to find out effective solutions dealing with difficulties arising
from the protection of human rights in the international civil judicial assistance in
Vietnam.
Finally, acquiring the experience of foreign legislation, the thesis proposes some
recommendations on which are suitable for Vietnam to improve Vietnamese
legislation against infringement of human rights in the international civil judicial
assistance in Vietnam.
This thesis is hoped to become a useful document for the researching of protection
of human rights in Vietnam through international civil judicial assistance instrument.
6. Structure

This thesis is divided into two chapters:
CHAPTER 1: OVERVIEW OF PROTECTION OF HUMAN RIGHTS IN THE
INTERNATIONAL CIVIL JUDICIAL ASSISTANCE - the general view of human
rights interpretation; definitions and concepts relating to international civil judicial
assistance; civil judicial assistance in international law and Vietnamese law; the
relationship between international civil judicial assistance and human rights.
CHAPTER 2: LEGAL PRACTICE ON PROTECTION OF HUMAN RIGHTS IN
THE INTERNATIONAL CIVIL JUDICIAL ASSISTANCE IN VIETNAM –
RECOMMENDATION FOR IMPROVEMENT - concentrates on analyzing many
cases related to the limitation on protection of human rights in international civil
judicial assistance in Vietnam; the recommendations based on legal experiences of
foreign laws and international treaties.


7
Chapter 1. Overview of protection of human rights in the international civil
judicial assistance
1.1. Overview of human rights
1.1.1. Historical background and definition of human rights
Human rights are the complex and enormous theory. Therefore, it can be only
presented a brief concept of human rights in order to create a theoretical background in
human rights involved in judicial assistance in Vietnam.
Before World War II, human rights were rarely discussed in international
relationship6, thus, human rights were often violated in universal level, from
imperialism in Asia to the bourgeois society in Western countries. The climax of this
violation was the systematic killing of racial or cultural groups, as the Nazi genocide
of Jews7 and atrocious action of Imperial Japanese Army in 1939 – 1945 periods.8
Human rights concern was first included in the preamble of Charter of the United
Nation, which was formed in the late of 1945.
"We the peoples of the United Nations [are] determined –

[…] to reaffirm faith in fundamental human rights, in the dignity and worth of the
human person, in the equal rights of men and women and of nations large and small".9
Afterwards, world leaders decided to complement the UN Charter with a road
map to guarantee the rights of every individual everywhere. The Universal Declaration
of Human Rights (UDHR), which was adopted by the UN General Assembly on 10
December 1948, was the result of this consideration.10 The preamble to the Universal
Declaration which was said “Whereas recognition of the inherent dignity and of the

6

Armstrong Atlantic State University, “Lesson 2: Human right in World Politics”, Outline Chapter 1: Human
Rights.
Achieved 2 July 2013.
7
Adam Jones, Genocide: A Comprehensive Introduction, Routledge Publisher, 2013, Chapter 6, pages 239-241.
8
Rudolph Joseph Rummel, Statistics of Democide:Genocide and Mass Murder Since 1900, Transaction
Publishers, Rutgers University, 1999, Chapter 3
9
See whole content of Charter of the United Nation in />10
“HISTORY OF THE DOCUMENT”, United Nation website.
. Achieved 27 May 2013.


8
equal and inalienable rights of all members of the human family is the foundation of
freedom, justice and peace in the world" emphasizes the importance of human right
not only ally in ethics and morality but also contribute to the development of the
world. International human rights today are frequently discussed in a wider range of
countries, and treated as an ordinary part of international diplomatic.

Many private associations treated human rights as an urgent problem of human
society. Each study project of many authors was brought different views about the
concept of human rights. According to the statistic of United Nations, there are
approximately fifty concepts of human rights at present, which were offered till now. 11
Among them, the concept of human rights given by the Office of the United Nations
High Commissioner for Human Rights (OHCHR)12, inter alia, is highly adopted.
Human rights are universal legal guarantees whose function is protecting individuals
and groups to against actions or omissions that damage to human dignity, entitlements
and fundamental freedoms of humankind.13
Besides, another definition of human rights from OHCHR as follows: Human
rights are entitled/ endowed that all members of human community, no sexual, race,
religion discrimination, social status, etc; inborn rights after being brought into the
world, just simple because they are human. This definition bears the symbol of natural
rights theories.14
Although the variety of concepts, in fact, human rights could be converged as
two main viewpoints15:
The first one is natural rights-school of thought. It is believed that human rights
are those inborn, inherent things that all newborn individuals are inherited just simply
11

United Nations, Human Rights: Question and Answers, Geneva, 1994.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) is a United Nations agency
that works to promote and protect the human rights that are guaranteed under international law and stipulated in
the Universal Declaration of Human Rights of 1948.
13
United Nations, UNHCHR, “Freequently Asked Questions on a Human Rights-based Approach to
Development Cooperation”, New York and Geneva, 2006, page 8.
/>14
Frequently Asked Questions
/>15

Human right textbook, Hanoi University of Law, Chinh tri quoc gia Publisher, 2009, page 7.
12


9
because they are the members of mankind family. Human rights, therefore, do not
depend on customs, habits, traditional culture or will of any individual, social class,
background, organization, community or nation; and not any subject, even a country,
could grant or dismiss these inborn and inherent human rights of individuals.
By contrast, according to scholars of legal rights-school of thought, it is
believed that human rights are not something inborn and naturally inherent; it must be
determined and codified into norms of law or originating from traditional culture. So,
according to theory of legal rights, scope, limit and fixed point of view, during
duration of human rights depend on will of dominated class and some elements such as
custom, habit, traditional culture.... of societies. In here, while natural rights have their
own homogeneous in all universal, all time, whereas legal rights have relatively
distinct nature on culturally and politically relative.
To sum up, although they have different point of views about human rights, but
it could be seen that scholars from both schools adopted that human rights embrace a
lot of categories and particular traits. International human rights are often expressed
and guaranteed by law, in the forms of treaties, customary international law, general
principles and other sources of international law.16
1.1.2. Human rights related to international civil judicial assistance
 Access to justice
Access to justice refers to the ability of people to seek and obtain a remedy
through formal or informal institutions of justice, and in conformity with human rights
standards. In other words, the right to access to justice may equivalent to the right to
the fair trial. Right to fair trial includes the following fair trial rights in civil and
criminal proceedings. The European Court of Human Rights and the Inter-American
Court of Human Rights have clarified that the right to a fair trial applies to all types of

judicial proceedings, whether civil and criminal. According to the European Court of
Human Rights Article 6 of the European Convention on Human Rights and the fair
16

“What re human right ?”. Website of UNHCHR.
. Achieved 27 May 2013.


10
trial rights apply to all civil rights and obligations created under domestic law and
therefore to all civil proceedings.17
Access to justice intersects with human rights in a various ways. First, it is itself
a fundamental human right, which belongs to political rights as set out in Article 8 of
the Universal Declaration of Human Rights: “Everyone has the right to an effective
remedy by the competent national tribunals for acts violating the fundamental rights
granted him by the constitution or by law.” The right of requesting the court to protect
legal rights and interests is one of the contents that express the equal right of
individual, organization. International Covenant on Civil and Political Rights dated 23
March 1976 stated that:
"All persons shall be equal before the courts and tribunals. In the determination
of any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law.” 18
Secondly, it is a means to protect and enjoy other rights. Thirdly, for the right to
access to justice to be truly enjoyed, a number of other human rights must also be
protected, such as the right to information, the right to physical safety, the right to
confidentiality and the right to privacy.19
A fair and efficient system for providing justice is crucial to the proper
functioning of society. Not only does it holds individuals, including state officials,
accountable for their actions, it also sets norms of behavior for other citizens. The idea

of justice is the heart of a democratic society.
In national scope, the right to access to justice is ensured by the constitutional
separation of power. For example, national assembly or parliament creates the fairness
and justice by issuing the law; administrative body puts legislation into effect while the

17

See Apeh Uldozotteinek Szovetsege and Others v. Hungary 2000). Curtis Doebbler, Introduction to
International Human Rights Law, CD Publishing, 2006, page 108.
18
Clause 1 Article 14 International Covenant on Civil and Political Rights 1976. Whole content of International
Covenant on Civil and Political Rights 1976 />19
“The right to access to justice”, Global Alliance Against Traffic in Women.
Achieved 16
May 2013


11
court provides the function of judgment. Additionally, legal assistance to people by
lawyers, bailiffs, judicial officers consolidated this right.
However, in international law, the way to achieve the justice is more complex.
The right to access to justice in international law related to international judicial
assistance in civil matters (hereinafter referred to as the international civil judicial
assistance - ICJA), the co-operation between countries. In other words, guaranteeing of
justice in international law depends on ICJA, such as whether a dispute party has
received sufficient notice for the abroad proceedings and whether it is more convenient
for a nonresident to defend in a particular forum than for a resident plaintiff to bring a
suit in a foreign jurisdiction where the defendant resides.20 Another example, final
judgments of national court give the victorious plaintiff a human right to see the
judgment enforced within the judgment state. Whether this right is maintained in

another state?21 These questions above are the demonstration of the importance of
ICJA in protects the right to access to justice in universal level.
In addition, with international treaties on ICJA, countries can provide
opportunities for foreigners to enjoy free legal aid services and for citizens to enjoy
legal aid services in foreign countries.22 It is also the method to accomplish the right of
access to justice.


Other human rights

ICJA also influences other human rights. In the civil relations that fall into the
scope regulation of private international law, individuals are main subjects.23
20

Gordon A.Christenson, “International Judicial Assistance and Utah Practice”, University of Cincinnati
College of Law Scholarship and Publications, Utah Law Review, Vol.7, 1961, page 481.
21
Theodor JR Schilling, “The enforcement of Foreign Judgment in the Jurisprudence of the European Court of
Human Rights”, January 2012
Achieved 21 May 2013
22
For example, the agreement between Vietnam and China stipulated that “Citizens of one signatory party enjoy
reduction and exemption of legal fee and enjoy pro bono legal aid of other signatory party under the same
conditions with the latter‘s citizens” (Article 3- Agreement on judicial assistance Vietnam-China).
The agreement between Vietnam and the Republic of France provides for “Citizens of one Signatory Party enjoy
in other Signatory Party‘s territory legal aid under the same conditions as those of the latter‘s citizens and in
conformity with the latter‘s law” (Article 7- Agreement on judicial assistance Vietnam-France).
23
Reid Mortensen, Richard Garnett, Mary Keyes, Private International Law in Australia, 2nd edition,
LexisNexis Publisher, 2011, page 6.

12
Therefore, it could be said that the most important role of international co-operation in
judicial assistance field is to protect the legal rights and interest of individuals.
For example, there is an obligation on the judgment that party A must return a
car to party B. The obligation was created by the judgment; but this judgment is only
effective in the territory of the court which issued that judgment. Therefore, the
obligation may not be enforceable in other countries, which infringes ownership right
of party B. Suppose in the case ICJA is not existed, B could only seek to recover the
car by institute new legal proceeding against A, which obviously leads to
disadvantages.
Another example about foreign divorce case can be taken into account. When a
woman or a man wishes to divorce with abroad spouse, he or she cannot achieve the
judgment of divorce without the service of document or taking the evidence. Without
ICJA or ineffectual ICJA, the right to marry and find family of the woman or the man,
mentioned in Universal Declaration of Human Rights, is negatively affected.
1.2. International civil judicial assistance – basic understandings
1.2.1. Concept of international civil judicial assistance
International judicial assistance in civil matters forms a part of the law on
international civil procedure. Concept or definition of ICJA, which grounded in scope
of judicial assistance issue; nature and degree of diplomacy; as well as the need of each
state, change with the times. This led to, in legal theory, that not one definition of ICJA
is universally accepted or close to coming to a consensus.
In searching for the concept or definition of ICJA, we should refer to the law of
some countries or international treaties
 Germany
In German law, the term “international judicial assistance” (Internationale
Rechtshilfe in German), is provided in the Civil Code and Act of Private International

13
Law 1968.24 It is the assistance for foreign authorities, particularly courts and
consulates. Subjects of international legal aid are service of document; the hearing of
witnesses and the collection of evidences; the seizure and delivery of certificates; the
seizure and delivery of certificates (in particular commercial documents) and
essentially information (ex bank information).25
 France
Judicial assistance in France (Assistance judiciaire international in French),
which is understood by French scholars, comprises a number of services such as the
provision of relevant documents; exemption of court fee and charge for foreigners;
presentation of evidence pursuant to the foreign law; recognition and enforcement of
foreign judgment, etc.26 Beside the Napoleon Code 1804, there is large body of French
legislation relating to this field.27
 Switzerland
ICJA is an area of public international law in Switzerland, falls under federal
jurisdiction28 and Federal Act of 18 December 1987 on Private International Law.
Definition of international judicial assistance in Swiss law was mentioned by Swiss
Administrative Case Law of the Federal Authorities 1985 as “provision of support to
the authorities or courts of a requesting state by the state to which the request is
made, by carrying out procedural or other official acts and communicating the results
to the authorities or courts of the requesting state, so that these can be used in
specific proceeding.”29

24

Theoretical and practical ground for the issuance of international judicial assistance ordinance of Institute
of Legal scientific, Ministry of Justice, Legal Journal Information, 3/2001, page 32
25
German Wikipedia, article “Rechtshilfe“.

Achieved 27 May, 2013.
26
Theoretical and practical ground for the issuance of international judicial assistance ordinance, Ibid., page 21.
27
Ibid.
28
Art. 54 para. 1, Art. 122 para. 1 and Art. 166 para. 2 of the Swiss Constitution.
29
“International Judicial Assistance in Civil Matter Guidelines”, Private International Law Unit of the Federal
Office of Justice together with the Division for International Legal Assistance (FOJ), the Directorate of
International Law (DFA) and the Office of the Attorney General of Switzerland, page 1
Achieved 2 May, 2013.


14
In addition, other activities such as inspection, taking statements from
witnesses; providing expert opinion that belong to normal sense of international
judicial assistance. In a broader sense, it includes other official measures related to
foreign civil litigation, for instance, the enforcement of foreign decisions or the
application of foreign law.30
 Republic of Korea
The legal system in the Republic of Korea is based on civil law and most the
law are codified. For the ICJA, Korean parliament issued the Act on International
Judicial Cooperation in Civil Matters, Act No. 4342, on 8 March, 1991. The purpose
of this act is to create the ground to infer the concept of ICJA in Korean law; to
provide procedures in any civil case, to entrust a foreign country with judicial
cooperation, and to settle judicial cooperation entrusted by a foreign country.31
Noticeably, the matters of recognition and enforcement of foreign judgments in
South Korea are not covered by the Act on International Judicial Cooperation in Civil
Matters, but by Korean Code of Civil Procedure.32

 United States
In the US law, international judicial assistance is the process whereby courts in
one jurisdiction assist courts located in another jurisdiction.33 It has three main aspects:
acquiring information of abroad witnesses, service of documents on abroad person and
collect information about foreign law. International judicial assistance in US also
covers recognition and enforcement of foreign judgments and arbitral awards.34

30

Ibid.
Article 1 The Act on International Judicial Cooperation in Civil Matters, Act No. 4342, March 8. 1991
32
International Business Law Consortium, Paul Hopkins (editor), International Enforcement of Foreign
Judgments, Lulu.com, 2006, page 299.
33
Peter Metis, “International Judicial Assistance: Does 28 U.S.C. & 1782 Contain an Implicit Discoverability
Requirement”, Fordham International Law Journal, Volume 18, Issue 1, 1994, page 337.
Another definition can be seen in Gordon A.Christenson, “International Judicial Assistance and Utah Practice”,
University of Cincinnati College of Law Scholarship and Publications, Utah Law Review, Vol.7, 1961, page 478
“an aid that rendered by one nation or its courts to another nation or it courts in support of judicial proceedings in
the nation or courts requesting assistance”.
34
Gordon A.Christenson, ibid. , page 478
31


15
 Former Soviet Union and Eastern Europe socialist countries
In former socialist legal system of Europe, the concept of International judicial
assistance is understood to be distinct procedural activities. Distinct procedural

activities often include: making and service of document; inspection, collect the
evidence; recognition and enforcement of foreign judgments and arbitral awards;
witness inquiry.35
 Vietnam
Neither does the Law on Judicial Assistance 2007 give the definition of
international judicial assistance, nor the Civil Procedural Code 2004 (revised 2011).
However, the concept of international judicial assistance is mentioned indirectly in
Article 10 Law on Judicial Assistance 2007 (hereinafter referred to as LJA 2007), in
which, the scope of civil legal assistance between Vietnam and foreign countries
covers:
“1. Service of papers, dossiers and documents related to civil legal
assistance;
2. Summon of witnesses and experts;
3. Collection and supply of evidence;
4. Other requests for civil legal assistance.”
Additionally, chapter XXXVI of Civil Procedural Code 2004 titled “Judicial
assistance in civil procedures” is only concerned with judicial entrustment. In sum,
LJA 2007 and CPC 2004 does not mention about the position of recognition and
enforcement of foreign judgment in scope of judical assistance. Thus, in
conceptualising questioning the concept of ICJA in Vietnam, the question of whether
recognition and enforcement of foreign judgment belong to ICJA is taken into account.
From the academic perspective, recognition and enforcement of foreign
judgments, in company with judicial entrustment are the main aspects of ICJA in

35

Theoretical and practical ground for the issuance of international judicial assistance ordinance, Ibid. , pages
22-23

16
Vietnam.36 Importantly, the Vietnamese delegation always determined to request
supplement content of recognition and enforcement of foreign judgments in
negotiative process of bilateral treaties on ICJA.37 This was mentioned in the Report
No 307/BC-CP on judicial assistance, which states that even if recognition and
enforcement of foreign judgment not regulated in LJA 2007, it is the significant part of
of bilateral treaty on ICJA, which signed by Vietnam. So from the practical view, it
can be said that recognition and enforcement of foreign judgment is an integral part of
ICJA in Vietnam.
Looking at contents of treaty (agreement) on judicial assistance in civil matters
concluded between Vietnam and foreign countries, it can be seen that the scope of
ICJA also inconsistent. Thus, the examination of entire contents of these treaties, it is
shown that the definition of ICJA is broad, covering such issues as conflict of law,
conflict of jurisdiction, exchange of judicial information, judicial protection, etc.
 International treaties
In the Treaty between the United Kingdom of Great Britain and Northern
Ireland and the United Arab Emirates on judicial assistance in civil and commercial
matters 2007, judicial assistance applies to the service of judicial document and the
taking of evidence by means of Letters of Request or commissions.38 The same scope
of judicial assistance can be found on the Agreement on Judicial Asisstance in civil
and commericial matters and co-operation in arbitration between Thailand and

36

Article “Scope of international civil judicial assistance”, author Hoang Thu Ha and the article “Report on
situation of international civil judicial assistance treaties between Vietnam and foreign countries, and the
indispensable participation of Vietnam into Hague Conference about private international law”, Department of
International Cooperation MOJ.
37
Department of International Cooperation MOJ , “Report on situation of international civil judicial assistance

treaties between Vietnam and foreign countries, and the indispensable participation of Vietnam into Hague
Conference about private international law”
38
Clause 2 Article 4 Treaty between the United Kingdom of Great Britain and Northern Ireland and the United
Arab Emirates on judicial assistance in civil and commercial matters


17
Australia 199739, Treaty on Judicial Assistance in Civil and Commercial Matters
between Australia and the Republic of Korea 1999.40
In other bilateral treaties, the scope of judicial assistance is more broader.
Article 1 of the Agreement on mutual judicial assistance in civil matters between
Vietnam and Kazakhstan 2011 determines the scope of judicial assistance in the
following civil matters:
“i) Service of documents relating to mutual judicial assistance;
ii) Taking and transferring of evidence;
iii) Summoning of witness and expert;
iv) Recognition and enforcement of the court judgments, decisions and arbitral
awards as provided in Chapter V of this Agreement;
v) Exchange of legal information and materials relating to mutual judicial
assistance;‖
Agreement on judicial assistance in civil and criminal matters between Vietnam
and Russia 1999 and Agreement between India and the United Arab Emirates on
juridical and judicial cooperation in civil and commercial matters 1999 have the same
appoach with this scope.41 Examples above have demonstrated the fact that the concept
of ICJA is heterogeneity in international law.
To sum up, by reference to the law of some countries or international treaties,
we can have a definition of international civil judicial assistance as follow:
“International civil judicial assistance is the co-operation among countries
through competent jurisdiction authorities for the civil matters (civil, family and

marriage, labor and commercial matters) proceeding. This allows the parties and
authorities in charge to perform necessary activities, including service of document;

39

Article 1 Agreement on Judicial Asisstance in civil and commericial matters and co-operation in arbitration
between Thailand and Australia 1997
/>40
“Treaty on Judicial Assistance in Civil and Commercial Matters between Australia and the Republic of Korea,
done at Canberra on 17 September 1999 “ />41
Article 5 of Agreement on judicial assistance in civil and criminal matters between Vietnam and Russia 1999,
Article 2 of Agreement between India and the United Arab Emirates on juridical and judicial cooperation in civil
and commercial matters 1999


18
collecting evidence; recognition and enforcement of foreign judgments and arbitral
awards.”
1.2.2. Characteristics of international civil judicial assistance
From the concept of International civil judicial assistance, there are some
various views in respect of this concept as the following
Firstly, legal nature of ICJA is the co-operation and aid among the countries in
jurisdiction matters. Jurisdiction matter, in the broadest sense, may contain legal
protection or settlement of conflict of law. In a narrower sphere, which is supported by
many countries, it includes the service of document42; collecting evidence; recognition
and enforcement of foreign judgments and arbitral awards. That co-operation may
stretch from a simple request for essential information to more complex undertakings
such as the request for summon of expert or taking statements from witnesses.
Secondly, the civil matter would have to be interpreted in non-criminal law. So
that ownership right, family and marriage (matrimonial), labor and commercial dispute

matters fall within the scope of ICJA.
Thirdly, legal sources of ICJA are international treaties. In the absence of such
agreements, ICJA is carried out by applying the principle of reciprocity, this case is
understood as where a host state agrees to extend to foreign nationals the same legal
rights that the foreign government extends to its own citizens inside its state.43 It may
equivalent to the doctrine of comity in common law countries. The concept of comity,
in the legal sense, is the recognition which one nation allows within its territory to the
legislative, executive or judicial acts of another nation, having due regard both to
international duty and convenience, and to the right of its own citizens and other

42

Service is the transmission of document by an official method. Most procedural law provide that in order to
allow proceedings to begin the communications to the parties must be served on them or notified to them in order
to have effect. (“International Judicial Assistance in Civil Matter Guidelines”, ibid. , page 6). In example, Article
147 of CPC 2004: “The courts, the procuracies and the judgment-executing agencies bodies have the obligation
to issue, send or notify procedural documents to the involved parties, other participants in procedures and
relevant individuals, agencies and/or organizations according to the provisions of this Code.”
There are many ways of service such as service according to international convention; service by diplomatic
channel; service to the litigation agent; service by mail; service through public notice, etc.
43
Nong Quoc Binh, “Condition for recognition and enforcement of foreign judgment, arbitral awards” , Hanoi
University of Law, Science of Law Journal, Special issue of Civil Procedure Code 2004.
Achieved 22 June 2013.