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⁷ Although there are many social and economic differences, China and Vietnam share many similar problems stemming from their adoption of a Soviet-inspired judicial system. Analogous issues have also arisen in court reforms in Mongolia, Laos and Cambodia.

⁸ See Qianfan, Z, ‘The People's Court in Transition: The Prospects of the Chinese Judicial Reform’ (2003) 12 J of Contemporary China 69, 76Google Scholar; Nicholson, P, ‘Judicial Independence and the Rule of Law: The Vietnam Court Experience’ (2001) 3 Australian J of Asian L 37, 38–44.Google Scholar

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²⁵ See full text of the International Bar Association standards <http://www.ibanet.org/pdf/HRIMinimumStandards.pdf>. Vietnam's Chief Justice, Pham Hung, signed the ‘Beijing Statement of Principles of Judicial Independence’ in 1997. This non-binding statement does not discuss the sensitive question of judicial independence from political interference. <http://www.lawasia.asn.au/uploads/images/Beijing_Statement.pdf> (accessed 16 June 2007).

²⁶ See Kahn, P, ‘The Russian Bailiffs Service and the Enforcement of Civil Judgments’ (2002) 18 Post-Soviet Affairs 148–81.Google Scholar

²⁷ In 2002 the annual inflow of cases filed in Vietnamese courts was approximately 200,000 or 0.00251 cases per person. During the same period there were approximately 7 million cases in China or 0.00583 cases per person, over double the rate in Vietnam.

²⁸ Average annual increases in litigation are difficult to estimate because litigation rates have not increased steadily. For example, over 1280 new cases were filed in 1999, only 598 new cases were filed in 2002, but the litigation rate rose to 1,260 new cases in 2005. Civil litigation rates are rising much faster. There were approximately 25,000 cases in 1994 rising to over 50,000 in 2005. See Toa An Nhan Dan Toi Cao, ‘Bao Cao Tong Ket Cong Tac Toa An Nam 2005 va Phuong Huong Nhiem Vu Cong Tac Toa An Nam 2006’ (Report on 2005 and the plan for 2006 Supreme People's Court) (2005).

²⁹ McMillan, J and Woodruff, C, ‘Interfirm Relationships and Informal Credit in Vietnam’ (1999) 114 Quarterly J of Economics 1285CrossRefGoogle Scholar. A recent survey confirms these findings. Leadco, , ‘Diagnostic Study on the Functioning of Existing Commercial Disputes Resolution System: Judicial and Non-Judicial’ (Supreme People's Court, June 2007) 63–5.Google Scholar

³⁰ A survey recently showed that higher income groups (9 per cent) were almost twice as likely to have used the courts than low-income groups (5 per cent). See UNDP, ‘Access to Justice: Survey from the People's Perspective’ (unpublished paper, Hanoi, 2004) 11.

³¹ See Fu, H, ‘Putting China's Judiciary into Perspective’ in Jensen and Heller (n 17) 199–200.Google Scholar

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³³ See Interagency Steering Committee, ‘Comprehensive Needs Assessment for the Development of Vietnam's Legal System to the year 2010’ (Ministry of Justice, 2002) 27; Leadco, (n 29) 58–69.Google Scholar

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³⁶ Constitution 1992, Art 91; Ordinance on Administrative Procedures 2003. Also see Dowdle, M, ‘Of Parliaments, Pragmatism, and the Dynamics of Constitutional Development: The Curious Case of China’ (2002) 35 New York University J of Intl L and Politics 1, 22–32.Google Scholar

³⁷ Civil Procedure Code 2004, Arts 24 and 29.

³⁸ See, eg, Nicholson, P and Quang, NH, ‘The Vietnamese Judiciary: The Politics of Appointment and Promotion’ (2005) 14 Pacific Rim L and Policy J 1, 14–22.Google Scholar; Quinn, BJ, ‘Legal Reform in the Context of Vietnam’ (2002) 15 Columbia J of Asian L 219, 245–6.Google Scholar

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⁴⁰ Circular Letter No 556-TT issued by the Prime Minster on 24 Dec 1958. Also see Van Bach, P, ‘Le Nin Voi Van De Phap Che Xa Hoi Chu Nghia’ [Lenin and Socialist Legality] [1970] Tap San Tu Phap 9–16.Google Scholar

⁴¹ See generally Le Trung, Ha, ‘Chuyen Huong To Chuc Cua Cac Toa An Nhan Dan Dia Phuong De Dap Ung Voi Tinh Hinh va Nhiem Vu Moi’ [Changes in Local Court to Meet the Requirements of the New Conditions and Requirements] (1965) Tap San Tu Phap 1, 2.Google Scholar

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⁴³ See Solomon, P, ‘Gorbachev's Legal Revolution’ (1990) 17 Canadian Business L J 184–94Google Scholar. For a discussion of socialist legality in Vietnam see Van Bach, P (n 40) 9–16.Google Scholar

⁴⁴ See Law on the Organization of People's Courts 1992, article 1; also see Vietnamese Constitution 1992, Art 126.

⁴⁵ See Peerenboom, R, China's Long March toward the Rule of Law (CUP, Cambridge, 2002) 302–9.CrossRefGoogle Scholar

⁴⁶ See Son, BN, ‘Su Doc Lap Cua Toa Na Trong Nha Nuoc Phap Quyen’ [Independence of the Court and the Rule of Law] [2003] Tap Chi Nghien Cuu Lap 43–50Google Scholar. A similar constitutional configuration exists in China see Perrenboom, (n 45) 85.Google Scholar

⁴⁷ Constitution 1992, Art 4.

⁴⁸ Ordinance on Public Employees 1998, (as amended) Arts 1(4), 6(2).

⁴⁹ These views are based on over 50 interviews with Vietnamese judges [Interviews with judges]: Dang Quang Phuong, Director, Institute for Judicial Science, Supreme Court, Hanoi Mar 1999, Sept 1999, Feb 2000, Mar 2002; Ngo Cuong, Vice Director, Institute of Judicial Science, Hanoi, Feb 2002, Mar 2004, Jan 2005; Nguyen Khac Cong, Judge Supreme Court, Hanoi, Oct 1997, Mar 1999, Oct 2002; Nguyen Van Dung, Judge, Economic Division, Supreme Court, July 1998; Ma 1999; Nguyen Nien Bich, Judge Supreme People's Court, Hanoi, Mar 2004; Nguyen Thi Loi, Deputy Chief Judge, Civil Division, Hanoi Peoples Court, Hanoi July 1998, Mar 1999, June 2003; Hoang Huu But, Vice Chief Justice, Hanoi People's Court, Sept 2002, Mar 2004; Chung Lam, Chief Judge, Hoan Kiem District Court, Mar 2004; Tran Thi Hai, Chief Judge, Civil Jurisdiction, Dong Da District Court, Hanoi, Sept 1999, Aug 2003. For details about China see Liu, S, ‘Beyond Global Convergence: Conflicts of Legitimacy in a Chinese Lower Court’ (2006) 31 Law and Social Inquiry 82–8.CrossRefGoogle Scholar

⁵⁰ Selection committees comprise deputies from people's councils, government officials and senior judges. See Law on Organization of the People's Courts 2002, Arts 37, 40, 41.

⁵¹ According to Item II of In;er/ular No 05/TTLN of the Ministry of Justic Supreme People's Court Providing Guidelines of the Ordinance on People's Judges and Assessors 1993, ‘loyalty to motherland’ and ‘firmly defending the socialist legality’ are partially based on ‘political knowledge certificates’ (chung chi trinh do ly luan chinh tri) issued by national political institutes (hoc vien chinh tri quoc gia).

⁵² Toa An Nhan Dan Thanh Ha Noi, Bao Cao Ket Qua 4 Nam Thuc Hien Nghi Quyet So 08-NG/TW Ngay 2.1.2002 [Report on the Results of Four Years Implementation of Resolution No 08–NG/TW Ngay 2 Jan 2002] (Hanoi, 3 Nov 2005).

⁵³ For details about Chinese reforms see Lubman, S, Bird in a Cage: Legal Reforms in China after Mao (Stanford University Press, Stanford, 1999) 250–97Google Scholar. For discussions about judicial reform in Vietnam see Le Cam, , ‘Cai Cach He Thong Toa An Trong Giai Doan Xay Dung Nha Nuoc Phap Quyen Viet Nam’ [Reform the Court System to Build Up a Law Based State in Vietnam] [2002] Nghien Cuu Lap Phap 21Google Scholar; Cuong, N M, ‘Yeu Cau Cua Viec Xay Dung Nha Nuoc Phap Quyen Doi Voi Doi Moi To Chuc va Hoat Dong Cua Cac Co Quan Tu Phap’ [How to Reform Judicial Authorities to Build up a Law-Based-State] [2002] Nghien Cuu Lap Phap 30.Google Scholar

⁵⁴ See Ba Tuan ‘De Chanh An TANDTC Co Dieu Kien Bo Nhiem Tham Phan Duoc Xac Thuc Hon’ [Allowing the Chief Justice of the Supreme People's Court the Ability to Nominate Judges Will Be More Realistic] [19 Mar 2002] Phap Luat 2.

⁵⁵ See Law on the Organization of People's Courts 2002, Arts 45, 46.

⁵⁶ ibid Art 40.

⁵⁷ For a discussion about the Nam Cam case and court scandals see Unknown Author, ‘Vietnam Da Xuat Hien Toi Pham Co To Chuc o Trinh Do Cao’ [High-Level Organised Crime Makes Its Appearance in Vietnam] [15 June 2002] Vnexpress.

⁵⁸ The term cong tac tu phap refers to all the agencies connected with courts, including the procuracy and police.

⁵⁹ See V Chi Cong, ‘Thay Gi Ve Cong Tac To Chuc va Quan Ly Can Bo Qua Vu An Truong Van Cam’ [What Can be Seen About Organizing and Managing Cadres Through the Truong Van Cam Affair] [2002] Tap Chi Cong San, <http://www.tapchicongsan.org.vn>.

⁶⁰ Politburo Resolution No 49 NQ/TW on the Strategy of Judicial Reform to 2020.

⁶¹ See Peerenboom, R, ‘What We Have Learnt about Law and Development? Describing, Predicting, and Assessing Legal Reforms in China’ (2006) 27 Michigan J of Intl L 823, 844–7.Google Scholar

⁶² See Son, N Phu, ‘Bo Luat To Tung Dan Su Can The Hien Thin Than Cai Cach Tu Phap’ [Civil Procedure Code Should Express the Spirit of Judicial Reform] [2004] Tap Chi Nghien Cuu Lap Phap 24–31Google Scholar; Bach Quoc An, Nguyen Khanh Ngoc, ‘Mot So Co Hoi va Thach Thuc Dat Ra Doi Voi He Thong Phap Luat va Tu Phap Nuoc Ta Trong Boi Canh Thuc Hien Hiep Dinh Thuong Mai Viet Nam Hoa Ky’ [Opportunities and Challenges for the Systems of Laws and Justice in Vietnam in the Context of Implementing the Bilateral Trade Agreement Between Vietnam and US: Some Legal Aspects of the BTA between Vietnam and US] [2002] Thong Tin Khoa Hoc Phap Ly 102–37.

⁶³ Discourse is taken to mean ‘all forms of spoken interaction, formal and informal, and written texts of all kinds’, especially political, economic, moral, cultural and legal modes of communication’. Potter, J and Wetherell, M, Discourse and Social Psychology (Sage Publications, London, 1987) 7.Google Scholar

⁶⁴ See Hill, C, Intellectual Origins of the English Revolution Revisited (OUP, Oxford, 1997) 228–30CrossRefGoogle Scholar; Ferejohn, J and Pasquino, P, ‘Rule of Democracy and Rule of Law’ in Maravall, JM and Przeworski, A (eds), Democracy and the Rule of Law (CUP, Cambridge, 2003) 244.Google Scholar

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⁶⁶ Interviews with judges.

⁶⁷ See Merryman, J, The Civil Law Tradition (Stanford University Press, Stanford, 1969) 89.Google Scholar

⁶⁸ See Woo, M, ‘Law and Discretion in the Contemporary Chinese Courts’ (1999) 8 Pacific Rim L & Policy J 581, 583–6.Google Scholar

⁶⁹ In a recent survey district court judges rated commercial cases as the most difficult they faced. UNDP, Report on Survey Needs of District People's Courts Nation Wide (2007) 236–41.Google Scholar

⁷⁰ Interviews with judges.

⁷¹ Case No 57, First Instance Criminal Court, Thai Binh Provincial People's Court, 8 Mar 2004. Interview with the defence counsel, Hanoi, Mar 2005.

⁷² Criminal Code 1999, 181.

⁷³ Art 16 of the repealed 1926 Soviet Criminal Code provided that ‘if any socially dangerous act is not directly provided for by the present Code, the basis and limits of the responsibility for it shall be determined by application of those articles of the Code, which provide for crimes most similar in nature’. Also see Dinh, Van Que, Phap Luat Thuc Tien va An Le [Legal Practice and Precedent] (Truth Publishing, Hanoi, 1999) 181–7.Google Scholar

⁷⁴ See Interviews with lawyers from four Hanoi-based law firms Investconsult, Vilaf, Vision and Associates, N H Quang and Associates and Leadco, between March 2002 and April 2007 [Interviews with lawyers].

⁷⁵ In a recent survey district court judges admitted they routinely defer to the opinions given by local government bodies. See UNDP (n 69) 298–300. Also see Qianfan, Z, ‘The People's Court in Transition: The Prospects of the Chinese Judicial Reform (2003) 12 J of Contemporary China 69–101.Google Scholar

⁷⁶ This case study is based on information provided in interviews with lawyers working for Leadco during March 2003 and July 2004.

⁷⁷ This case study is based on interviews with Nguyen Thi Loi, Deputy Chief Judge, Civil Division, Hanoi People's Court, Hanoi, Apr 1999 and Sept 1999, and the transcript of the first instance judgment Case No 41, 16–19 Oct 1998.

⁷⁸ Art 751(e) of the Civil Code gives authors rights to ‘protect the integrity of their work and permit or not permit other persons to alter the content of the work’.

⁷⁹ See Peerenboom, (n 9) 67–92.Google Scholar

⁸⁰ Interviews with lawyers. Also see Sida Liu (n 49) 91–4.

⁸¹ Even higher levels of procurators (94 per cent) and lawyers (89 per cent) believe it is a frequent practice. See UNDP (n 69) 250–2.

⁸² Son, B Ngoc, ‘Su Doc Lap Cua Toa Na Trong Nha Nuoc Phap Quyen’ [Independence of the Court and the Rule of Law] [2003] Tap Chi Nghien Cuu Lap 43–50.Google Scholar

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⁸⁴ Uniform Commercial Credit Practice (UCCP) 500 rules developed by the International Chamber of Commerce in 1993 forbid issuing banks from dishonoring letters of credit once prescribed shipping documents have been received by purchasers.

⁸⁵ The State Bank (Vietnam's central bank) promulgated Decision No 711, 25 May 2001 and Decision No 1233, 26 Sept 2001, outlining the circumstances in which State-owned banks can issue deferred LCs.

⁸⁶ For example, the Hyosung Corporation sued the Vietnam Commercial Joint Stock Bank in the Ho Chi Minh City People's Court in May 1998 for failing to honour an irrevocable LCs. See Chi, K, ‘Potential Quicksand’ [1998] Vietnam Economic News 18–19.Google Scholar

⁸⁷ See Woo, M, ‘Law and Discretion in the Contemporary Chinese Courts’ (1999) 8 Pacific Rim L and Policy J 581, 586–92.Google Scholar

⁸⁸ These comments are based on interviews with a Vietnamese sociologist who specialises in state-village relations. Interviews Hoang Ngoc Hien, Sociologist, Nguyen Du School of Creative Writing, Hanoi, 21 June 1998, Apr and Sept 1999, Aug 2000.

⁸⁹ Interviews Tran Thi Hai, Chief Judge, Civil Jurisdiction, Dong Da District Court, Hanoi, Sept 1999, Aug 2000; Chung Lam, Chief Judge, Hoan Kiem District Court, Hanoi, Mar 2004.

⁹⁰ The author observed five cases in the Vinh Phu Provincial Court in 1994 and three cases in Civil Division of the Hanoi People's Court in 1998 and four economic, civil and labour cases in the Hanoi City Court during March and April 2006.

⁹¹ The judge erroneously referred to the superseded 1980 Constitution which provide a State guarantee to provide housing. Tu Liem People's Court, Case No 52/DSST, 2 Oct 1995.

⁹² Interviews with Hoang Ngoc Hien (n 88).

⁹³ Hanoi People's Court, Case No 20-PTDS, 31 Jan 1996.

⁹⁴ See generally Rorty, R, ‘Justice as a Larger Loyalty’ in Bontekoe, R and Stepaniants, M (eds), Justice and Democracy: Cross-Cultural Perspectives (University of Hawaii Press, Honolulu, 1997) 11–14Google Scholar; Walzer, M, Thick and Thin: Moral Argument at Home and Abroad (University of Notre Dame Press, Notre Dame, IN, 1994) 4–10.Google Scholar

⁹⁵ Ngayen Manh Cuong, ‘Yeu Cau Cua Viec Xay Dung Nha Nuoc Phap Quyen Doi Voi Doi Moi To Chuc va Hoat Dong Cua Cac Co Quan Tu Phap’ [How to Reform Judicial Authorities to Build up a Law-Based-State] [2002] Nghien Cuu Lap Phap 31.

⁹⁶ See Resolution No 49-NQ/TW June 2006 that instructress the SPC to ‘determining the implementation of law and developing judicial precedents. See JICA, ‘Vietnam Japan Joint Research on the Development of Judicial Precedents’ (Hanoi, 2007) 203–4.

⁹⁷ eg, the Annual Report in 2000 gave economic court judges doctrinal rules to distinguish civil and economic cases. See Toa An Nhan Dan Toi Cao (Supreme Peoples Court), ‘Giai Dap Mot So Van De Ve Hinh Su, Dan Su, Kinh Te, Lao Dong, Hanh Chinh va To Tung’ [Annual Report on Criminal, Civil, Economic, Labour, Administrative and Procedural Laws] (1 Feb 2000) 63–64.

⁹⁸ See Qianfan, Z, ‘The People's Court in Transition: The Prospect of the Chinese Reform’ (2003) 12 J of Contemporary China 69–101.Google Scholar

⁹⁹ Interviews Le Kim Que, President Bar Association of Hanoi, July 1998 and Sept 1999. Also see Chi, B Kim, ‘Providing Legal Services in Vietnam: A Practitioner's Viewpoint’ in Leung, S (ed), Vietnam Assessment: Creating a Sound Investment Climate (Institute of Southeast Asian Studies, Singapore, 1996) 107–13.CrossRefGoogle Scholar

¹⁰⁰ Judges in large cities have applied the reforms more than their counterparts in rural and remote areas. See UNDP (n 69) 256–7, 262–5.Google Scholar

¹⁰¹ Comments on this case are based on interviews during March, April, and October 2006 with lawyers from N H Quang & Associates, the law firm that represented the plaintiff.

¹⁰² See Civil Procedure Code 2003, Arts 81–3. See Nguyen, Phu Son (n 62) 29–30.Google Scholar

¹⁰³ Pre-trial conciliation is compulsory before economic and civil court trials. Civil Procedures Code, Art 180.

¹⁰⁴ This was a controversial legal point because the Civil Code 1995 did not in legal theory govern economic contacts. Since this case was decided the revised Civil Code 2005 now specifically applies to economic contracts.

¹⁰⁵ In some cases, lawyers arrange for judges to attend seminars and informal workshops that explain complex doctrinal issues, such as foreign legal protocols, electronic commerce, or international banking law.

¹⁰⁶ See generally Nicholson, P, ‘The Vietnamese Courts and Corruption’ in Lindsey, T and Dick, H (eds), Corruption in Asia (The Federation Press, Leichhardt, 2002) 215–17.Google Scholar

¹⁰⁷ Lawyers interviewed say that judges use their associates as go-betweens to solicit bribes from litigants. A practice has arisen where judges return bribes to loosing parties.

¹⁰⁸ See Peerenboom, (n 45) 295–8.Google Scholar

¹⁰⁹ eg, Vo Trong Hieu, a judge of the civil division of the Ho Chi Minh City People's Court, was denounced to the police when he failed to return a bribe solicited from an unsuccessful litigant. See Author Unknown, ‘Former Judge to Stand Trial for Taking Bribes’ [3 Oct 2004] Thanh Nien 3; trans, Development Vietnam (Intellasia New Service, 6 10 2004) 17.Google Scholar

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¹¹⁴ Interviews Dang Quang Phuong (n 49).

¹¹⁵ World Development Indicators, World Bank 2005 <http://www.devdata.worldbank.org/wdi2005/Table53.htm>. A recent survey showed that lawyers believed that only 24 per cent of court orders in commercial cases were successful. Leadco, (n 29) 59–60.Google Scholar

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¹¹⁸ See Ordinance on Residential Housing 1991.

¹¹⁹ For discussions about solving housing disputes see Tuoi Tre (23 June 1996); Tran Quang Minh, ‘Lay Lai Nha O Vang Chu Ma Nguoi Khac Dang Ky Su Dung’ [June 2000] Nhan Dan, <http://www.nhandan.orgvn/vietnamese/phapluat/137.html>.

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¹²⁸ McMillan, and Woodruff, (n 29) 1285–6Google Scholar. A more recent study about courts found that only 35 per cent thought that courts would fairly and impartially resolve disputes. See UNDP (n 30) 14–15.Google Scholar

¹²⁹ See, eg, Trochev, A, ‘Implementing Russian Constitutional Court Decisions’ (2002) 11 East Eur Constitutional Rev 95–103.Google Scholar

¹³⁰ See Cooney, S, ‘The Effects of Rule of Law Principles in Taiwan’ in Peerenboom (n 23) 424–7Google Scholar; Pech, L, ‘The Rule of Law in France’ in Peerenboom (n 23) 89–98.Google Scholar