Evidence is always critical in litigation and it plays a large part in determining whether you will win or lose a case. In fact, evidence is so important that, in day-to-day business, basic knowledge of the rules of evidence is essential for any company. It will be difficult for your business to succeed if you do not know how to preserve evidence of agreements with your partners or of their potential breaches of such agreements. However, coming from a common law country like the US, you may not be aware of how different the rules of evidence are in Vietnam. Cases that you think you have a high chance of winning may turn out to be a losing case, and evidence that you think is strong and decisive may turn out to have no value in the Vietnamese Court and vice versa. Thus, in this Insight, we will outline some of the distinct rules of evidence in civil litigation in Vietnam, and how you can adapt your business practices to protect yourself and your organization1.
Admissibility of evidence
In the US, there are complicated rules to determine whether evidence is admissible or not; and as a result, making objections against the opposing party’s evidence and establishing that such evidence is inadmissible is a common strategy in litigation. In Vietnam, however, there is almost nothing that can be categorized as “inadmissible evidence”.
Vietnamese law does set out some requirements for evidence, mostly relating to the form or structure of the document. For instance, all documents submitted must be either originals, or copies that have been certified by the competent authorities as true and correct copies (which also requires you to present the originals to such authorities for comparison). The problem is, however, there are no clear consequences in the event of failure to meet such requirements. In practice, the Vietnamese Court often receives all evidence that is submitted by the parties, as there is no rule empowering the Court to refuse any submission. Neither is there a rule against discussing evidence that fails to meet the requirements of the law (which is usually called “invalid evidence”) at trial nor a prohibition against making arguments based on such evidence. In theory, if the evidence is invalid, the Court shall not consider such evidence when rendering its judgment. However, there is no guarantee that the Vietnamese Court will completely disregard the invalid evidence while such evidence remains in the case file, and can still be discussed and presented in arguments at the litigation proceedings. Therefore, in practice, the Vietnamese Court still sometimes considers photocopies, in combination with other evidence, when rendering judgment, although the photocopies are technically invalid due to lack of true copy authentication.
In many cases, the Vietnamese Court may be obsessed with the “truth” to the extent that it accords a lower priority to protecting the important principles of evidentiary law. This is shown by the fact that there is no rule against the use of evidence that is obtained illegally, (e.g. documents that are stolen, data obtained from hacking, privileged information, etc.) which can still be submitted and considered as evidence by the Vietnamese Court. The violations of the law that occur during evidence collection will be deemed as a separate matter and will likely not affect the value of the evidence at a civil trial.
Due to this lack of evidentiary protection under Vietnamese law, you must be extremely careful in any communications in the event of potential disputes, as almost everything can be later used against you in Court. The most common mistakes that we see are in settlement negotiations. In the US, offers of compromise and communications in settlement negotiations are often not admissible due to statutory protections. However, such rules currently do not exist in Vietnam2 and it is quite common for a party to use compromise offers as evidence against the offerors in litigation.
Witnesses are critical in US litigation and are generally the main source of facts and evidence. Thus, witness testimony and cross examination often take up a large portion of time in a US civil trial. In Vietnam, however, participation of witnesses in civil trials is not common. Instead, the parties often present their case and argue the facts based solely on the written evidence in the case file.
The reason for such a difference is that Vietnamese law has no effective remedy against non-cooperation of witnesses. In the US, a party (usually via its attorney) can subpoena any witnesses that it deems necessary to the litigation. The US Court often does not concern itself or question the validity of a party’s witness subpoena as the parties are given wide scope to build evidence for their case or defense. If the subpoena is unlawful or unreasonable, it is generally the duty of the witnesses to make objection to the Court in the US. If a witness ignores or refuses to comply with the subpoena without sufficient cause, the US Court can hold him/her in contempt and impose fines and/or imprisonment.
In Vietnam, however, a party cannot subpoena a person to become a witness in a case without the Vietnamese Court’s prior approval. Normally, the Vietnamese Court will deeply question the necessity of summoning that witness and is often reluctant to approve the request unless the testimony is so important that the Vietnamese Court will not be able to resolve the case without it or there is a certainty that the requesting party can convince the witness to appear. The reason for this is that it will be troublesome for the Vietnamese Court if a person who is listed as a witness refuses to show up for proceedings (and may stem from the fact that most Vietnamese people consider “going to the Court” a “bad thing”). In theory, Vietnamese law allows the Court to ask the police to compel or force the witnesses to appear. However, in practice, no Vietnamese Court wants to involve the police because it will be too time-consuming (e.g. the clerk may need to come directly to the residence of the witness and work with the local police there). Alternatively, the Vietnamese Court often refuses to include witnesses in the case on the grounds that the witnesses are unnecessary and that it is the parties that have the burden to prove their cases.
Thus, in Vietnam, summoning witnesses is usually only performed if the witness is on your side (e.g. employees of your company) and is willing to testify. However, this is often ineffective because their testimony has low credibility (it is biased in your favor) and their knowledge is limited to what you already know. Summoning witnesses who are third parties or who are hostile to you is impractical in Vietnam as they often ignore the summons. Furthermore, if the witness has any relationship with the opposing side, the opposing attorney may advise the witness to submit their written testimony to the Court and be absent at trial. Written testimony is a common practice which is often allowed by courts in Vietnam. Unfortunately, you cannot cross-examine or obtain any valuable evidence from a witness who only submits written testimony.
Another the difference is that, unlike US law, Vietnamese law does not treat the plaintiff and the defendant as witnesses, and, as a result, they have no duty to testify truthfully under penalty of perjury. In Vietnam, it is commonly expected that the plaintiff and the respondent will lie or simple reply that they do not know or do not remember when asked questions which are against their interest. As cross-examination is often ineffective, the only reliable way to disprove their statements is often via written evidence.
As Vietnam lacks an effective mechanism for utilizing witnesses in civil litigation, you should not overly rely on witnesses to prove your case or defend you in legal proceedings. To have a strong case in Vietnam, you must have strong written evidence, such as documents signed by the opposing party. This means that, when doing business in Vietnam, you should prioritize written records signed by all related parties. It should always be kept in mind that material facts not supported by written records, despite being witnessed by many persons, can still be successfully disputed in the future.
Discovery and evidence collection
In the US, each party in civil litigation has the right to obtain evidence from the opposing party by various discovery devices such as depositions, interrogatories, requests for production of documents, and other methods. These discovery devices allow parties in litigation to obtain facts and evidence necessary for their case, which help to reveal the truth and ensure fairness in dispute resolution. There are also many sanctions available for non-compliance, such as ordering payment of reasonable expenses incurred for non-compliance, staying the proceedings, debarring a claim or defense, striking pleadings in whole or in part, and rendering a default judgment against the disobedient party. Thus, in the US, if you try to conceal evidence and information from a discovery request, you may be placed in a very disadvantageous position in your case.
Vietnamese law also has an evidence collection mechanism, i.e. a party can request the Vietnamese Court to order the opposing party or a third party to provide evidence. However, the problem is that there are no sanctions for failing to comply with such an order from the Court. Thus, if a party replies that they do not have the requested documents, or they do not agree to provide the requested documents or even ignore the order of the Vietnamese Court, there is nothing the Vietnamese Court can do. Thus, in practice, a Vietnamese Court’s order of production of evidence is mainly used for (i) collection of evidence from other state authorities which will voluntarily comply or (ii) recording the Vietnamese Court’s attempt to collect the evidence, so that if the collection fails, the Vietnamese Court can make a ruling based on the available evidence.
Thus, when doing business in Vietnam, you should make sure that you keep important documents in case of a dispute. You should not be careless and rely on documents that are kept by opposing parties, because when disputes occur, those documents will likely not be accessible.
- This Insight does not discuss criminal rules of evidence as they are different from the civil rules and will be discussed in a separate Insight.
- Currently, a Law on Court Mediation has been proposed which bans the use of statements made by one party during court mediations as evidence against that party. However, this Law has not been passed yet.