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Section 2. Commercial law
Dr. Nguyen Thi Tinh, Thuongmai University E-mail: [email protected]
OVERVIEW OF MODIFYING VIETNAMESE COMMERCIAL
LAW UNDER UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (VIENNA, 1980) (CISG) TAKEN EFFECT IN VIETNAM
Abstract. Vietnam Commercial Law was issued on June 14, 2005 to regulate trade activities (including goods trading activities) taking place in the territory ofVietnam or outside Vietnam if the parties are in Trade relations select Vietnamese laws adjusted. Currently, when Vietnam joined the Vienna Convention 1980, the Vietnamese Government is studying to review and amend the Commercial Law 2005. Some experts believe that it is necessary to amend the Commercial Law in a way that ensures compatibility and suitability, avoiding conflicts with the Vienna Convention 1980. In the following article, the author clarifies the specificity of The 1980 Vienna Convention with the trade laws of each country to recommend to modify Vietnam's Trade Law 2005 when Vienna Convention was effective in Vietnam.
Keywords: convention, Vietnam, commercial Law, international sales contracts.
1. Some common issues about Vienna Con- The 1980 Vienna Convention consists of 101 Ar-
vention ticles and was divided into 4 sections, including: (1)
The UN Vienna Convention on international Scope of application and general provisions (from sales contracts (Convention on Contracts for the Article 1 to Article 13); (2) Establishing contracts -International Sale of Goods - CISG for short) is order and procedures for signing contracts (from drafted by the United Nations Commission on In- Article 14 to Article 24); (3) Purchase and sale of ternational Trade Law (UNCITRAL) in an effort to goods (from Article 25 to Article 88) and (4) Final unify the source of law applicable to international provisions (from Article 89 to Article 101). The consales contracts. This Convention was adopted in Vi- tent of the Convention directly stipulates the rights enna (Austria) on April 11, 1980 at the Conference and obligations of the parties to international goods of the United Nations Committee on International purchase and sale contracts from the time of entering Trade Law in the presence of representatives about to the process of contract performance as well as the 60 countries and 8 national organizationl and began principle of handling contract violations. to take effect on January 1, 1988. On December 18, Basically, the Vienna Convention and the Viet-2015, Vietnam officially joined the Vienna Conven- namese law on goods purchase and sale contracts tion, becoming the 84th member of the Convention. are quite compatible with each other, many of which OnJanuary 1, 2017 the Vienna Convention began to both stipulate and some details of the Convention be binding in Vietnam. stipulate in detail, specifically Vietnam Commercial
Law and vice versa. This is because when drafting legal documents governing contractual relations (such as Commercial Law 2005 and Civil Code 2005), Vietnamese lawmakers consulted the provisions of the Convention. Specifically, the compatibility is expressed in the following aspects: (l) The contents of the Vienna Convention on international sales contracts are not contrary to the general principles of contract law of Vietnam; (2) Most of the content is recognized by both systems, but the Convention provides more detailed and specific regulations; (3) Some issues are governed by the Convention but Vietnamese laws do not stipulate (such as preservation of goods, specific contents of a contract proposal ...); (4) Some contents of Vietnamese law stipulate that the Convention does not mention (consequence of contracts for ownership of goods, conditions of validity of contracts, sanctions for violations of sanctions, and issues of time) signs, authorization issues ...) [1].
The reason for the more detail ofVienna Convention is the Commercial Law of Vietnam is designed to adjust contracts for the purchase and sale of goods in general (including contracts for the sale of goods in the country and contracts purchase and sale of international goods), while Vienna Convention is designed specifically for international sales contracts. Therefore, it is inevitable that Vietnam's Commercial Law has some more specific and less detailed regulations in many ofthe corresponding provisions in the Vienna Convention.
Vienna Convention is one of the most widely adopted and applied international trade conventions. With the participation of 84 member countries of different legal systems, developed countries as well as developing countries, capitalist countries as well as socially-oriented countries all continents have demonstrated that Vienna Convention is a representative and highly integrated document, reasonably acknowledged, ensuring equality for traders in the international sale and purchase of goods, unifying many conflicts between different legal systems
around the world, playing an important role in resolving legal conflicts in international trade and promoting international trade development.
The admission to Vienna Convention will bring many benefits to Vietnam in promoting the development of international goods trading activities, reducing the burden on the law of adjusting international sales contracts while this field of Vietnam are still inadequate, many unregulated relations are in need of complete research. When Vietnam joins the Vienna Convention, it will become one of the automatic sources of law applicable to international sales contracts between merchants with commercial Vienna Convention), limiting or helping to resolve quickly and reasonably disputes in foreign trade. This is an effective and inexpensive way to improve Vietnamese law in the area of international goods trading.
On the trader side, Vietnam's accession to the Vienna Convention will create a "menu" to select the law applicable to traders, help traders reduce costs in negotiating and selecting the applicable law of the contract such as resolving disputes related to the purchase and sale of international goods between the parties based in different member countries of the Convention. Especially, the import-export turnover ofVietnam with Vienna's member countries is increasing. As for foreign partners, Vietnam's accession to Vienna Convention has created more confidence and peace of mind about the source of law applicable to goods purchase and sale contracts when signed with Vietnamese partners. These benefits are more evident when placed in the context of most of the world's commercial powers have joined the Viennese Convention, many ofwhich are big and traditional trading partners ofVietnam such as EU countries, USA, Canada, Australia, China, Japan, Korea, Singapore ...
2. The influence of policy on Vietnam's amendment of the Commercial Law 2005
From the perspective of state management, the policy is understood as the thoughts, orientations and desires that the Party and the State should aim for in a certain period. In any country, the policy is defined on
the basis of specifying the political lines and platforms of the ruling party. In Vietnam, the policy is always associated with political power, often expressed in the Vietnamese Communist Party's Resolutions and Documents - as a Vietnamese leadership force (Article 4 of the Constitution. Vietnam in 2013).
In relation to law, policy is the basis and foundation for promulgating laws and plays a dominant and decisive role in the content of law. The law is used as a tool to bring policy into life, effectively regulate social relations in the direction that policy has set. Through legal norms, ideologies and general orientations in policy are transformed into specific, mandatory and general rules of conduct, guaranteed by state power [2].
It can be affirmed that the law is the result of institutionalization of policy, without the "non-policy" law, any legal document is born with the aim of transforming orientations that policy has set. Therefore, when the policy changes, the law must change.
In Vietnam, after the Sixth Party Congress (1986), the Party and State of Vietnam have determined to pursue an open-door policy, multilateralism, diversify external economic relations, gradually integrate into the international economy. The Party and State ofVietnam always consider foreign trade as one of the leading points of the country's economic development.
The 12th National Party Congress continues to emphasize the role of foreign trade in the country's economic development. Specifically, the report assesses the results of implementing socio-economic development tasks in the five years from 2011 to 2015 and the directions and tasks of the 5-year socio-economic development 2016-2020 of the 12th Congress The Party also defined the guidelines and policies of the Party and the State on the management and development of foreign trade activities: "Exploiting international commitments well, expanding and diversifying foreign markets, not letting depends too much on a market. Promoting export and import control accordingly, striving to balance sustainable trade.
Strengthen trade promotion, improve product quality, build Vietnamese brands, especially those with advantages. Make the most of the favorable conditions of trade agreements and agreements to promote exports; At the same time, there are appropriate defense measures to protect production and consumer benefits. Striving to achieve an average export growth rate of about 10% per year". [3, Section IV, 62].
Implementing the guidelines and policies of the Party and State of Vietnam to step by step integrate deeply into the world economy, Vietnam has gradually participated in many international economic organizations in the region and the world (typically WTO and ASEAN). In addition, a series of bilateral and multilateral agreements signed by the State of Vietnam have created many opportunities for Vietnamese traders to trade with foreign countries. In order to actively integrate into the world economy, promote international trade activities, including goods trading, the Government of Vietnam has regularly reviewed and perfected the law on trade, towards building a full and appropriate legal corridor to effectively adjust and achieve the objectives set by the policy in new conditions. The evidence is in the last three years, a series of documents regulating basic economic regulation has been approved by the National Assembly (Civil Code 2015, Enterprise Law 2014, Investment Law 2014, Bankruptcy Law 2014, Competition Law 2018) has created a modern legal environment, step by step recognizing business freedom fully for traders. However, one of the documents that directly regulate traders' commercial activities (including domestic and international trade and goods) has not been promptly revised, it is the Commercial Law.
As a law to regulate trade relations between traders and traders, after more than 10 years of validity, the Commercial Law 2005 has achieved some remarkable achievements, such as creating a legal legal corridor in the commercial operation, recognizing and respecting the freedom of business, typically the freedom to conclude and determine the content of a commercial contract. However, in the process of
implementation, the Commercial Law is not really a document that appeals to traders, has not effectively which put policies into real life, many overlapping or unnecessary conflict with the Civil Code or specialized legal documents, many regulations are primitive, incomplete or inadequate (franchising, logistics, buying and selling goods through the department transactions ...). The regulations on international trade in goods also carry heavy state management in the management relationship between the State and traders (while the nature of the Commercial Law must be a law regulating behavior trade between traders and traders) . In regulations related to the purchase and sale of goods, some content is not consistent with international practices or unclear, not yet predictive, causing difficulties for traders in the implementation process, including regulations on the concept of national goods purchase and International sale contracts, problems related to risk transfer, handling contract violations ... This has caused difficulties for traders in the process of entering into contracts, especially international sales contracts.
With the above situation, the Commercial Law needed to be amended. Especially when the Vienna Convention on the international sale and purchase of goods is in force for Vietnam, the review and amendment of the Commercial Law regarding the contents of goods purchase and sale need to be thoroughly researched in order to ensure the rationality and attractiveness of the Commercial Law in adjusting goods purchase and sale contracts.
3. Some notes for amending the 2005 Commercial Law (the purchase and sale of goods) when Vienna Convention was valid for Vietnam
As a principle, after signing or acceding to international conventions and treaties, member countries must conduct a review and revision of the national legal system in order to step by step internalize international commitments according to the route. However, Member Coutries is a different case. Normally, international treaties that Vietnam has signed often regulate the responsibilities among the countries
or between this Member Countries and investors, traders or goods and services originating from the remaining member countries.
Meanwhile, the content of the terms of the Vienna Convention does not have commitments among member countries, but directly stipulates the rights and obligations of traders in international goods purchase and sale contracts. With such provisions, the Vienna Convention serves as an effective source of law, directly helping traders determine their rights and obligations. The signing of accession to the Vienna Convention is of the same nature as the recognition of a document containing general trade conditions automatically applied to regulate the purchase and sale of goods among merchants with pillars business departments in different member countries. However, this acknowledgment does not mean coercion, "hard", forcing traders to comply, because the Convention allows traders to agree not to apply the Convention to purchase relations between them.
Since the Vienna Convention does not have the content of commitments between countries, the accession to the Vienna Convention does not require countries to internalize the content of the Convention, without forcing member countries (including Vietnam) must amend existing laws.
Therefore, in relation to the Vienna Convention, when revising the Commercial Law (part of the purchase and sale of goods), it is necessary to clearly define the Vienna Convention and the law governing sales contracts of each country (the Commercial Law 2005 in Vietnam) are two independent legal documents that coexist in parallel and do not exclude each other. While co-regulating an object is a sale and purchase contract, it has different meanings, roles, origins and purposes. This is reflected in the following aspects:
Firstly, about the origin, conditions and purpose of birth: The Vienna Convention was born on the basis of consensus of many countries, in order to regulate general commercial conditions for traders of many different countries in international com-
modity trading relations, with the expectation of offering the most favorable rules with the cheapest cost for traders in international goods purchase and sale contracts. Countries that sign or accede to the Convention voluntarily, are not mandatory. Meanwhile, the Commercial Law is a document issued by the Vietnam, the birth of the Commercial Law is necessary to serve the needs of the State's management of buying and selling goods among traders. In this respect, the Vienna Convention was built first on the basis of the interests of the traders, while the Commercial Law was built towards the management interests of the State.
Secondly, in principle, the Vienna Convention is recognized and automatically applied in member countries, adjusting international sales and purchase contracts that take place between traders with commercial headquarters in the different member states (unless the Vienna Convention traders are not the source of the selected law to adjust their contracts). Thus, the voluntary principle is highly appreciated, the compulsion to comply with the Vienna Convention is not set for traders. Meanwhile, the Commercial Law is mandatory for domestic or international sales contracts (if traders choose to apply the Vietnamese Commercial Law according to the principles of international justice).
Thirdly, on the basis of content construction: Vienna Convention was born "non-policy", the content of the Convention was not designed to institutionalize the editing of any country. Meanwhile, the Commercial Law was issued to regulate and realize policies and transform the policies of the Party and State ofVietnam into specific legal regulations.
Therefore, the adjustment is not compulsory and the Vienna Convention "non-policy" will be different from the compulsory adjustment, derived from the Trade Law's policy, the "rules of the game" in two documents so there is also a difference. The Vienna Convention governs "unofficial" policy, so what is most optimal for parties in international sales contracts will be noted. But for the Commercial Law, the
adjustment content must originate from the policy, from the state's management interests, so it is not necessarily what is considered optimal for the parties in the contractual relationship that has been recorded. receive. This is because, the content of the law governing the purchase and sale of goods in the Commercial Law must derive from the views and policies of the State, harmonizing the interests of the parties. co-benefits with the State. IfVienna Convention take the interests of parties in the contractual relations as supreme, the Commercial Law must take advantage of the policy ofbeing supreme. If the Vienna Convention is aimed at the optimal, best and cheapest for contract parties, the Commercial Law aims to be the best, best and cheapest in policy direction.
The amendment of Vietnam's Commercial Law in the current context must be approached in the direction of, considering these as two independent sources of law and adjusting a trade relationship. One party only adjusts the international sales contract (Vienna Convention), a party that regulates both domestic and international sales contracts (Commercial Law). One side was built with "non-policy" (Vienna Convention), one built to realize the policy (Commercial Law). One party built for traders, serving traders to reduce costs for traders (Vienna Convention), a construction party must both ensure the harmony of the interests of traders and ensure the interests of the Vietnam to serve the state management, consider the State's management costs (Commercial Law). If the Commercial Law is to ensure the rationality, transparency, legality and constitutionality, then the Vienna Convention is only feasible and cheap for traders. Therefore, the regulations for the most cost-effective and cheapest for traders, the Vienna Convention meets, but the Commercial Law sometimes cannot be done, due to the harmonization of the benefits of the policy and the state with traders, between traders and other related subjects.
Therefore, when Vietnam's Commercial Law is studied to amend, it is neither expected nor should the orientation of developing the Commercial Law
be the same as the Vienna Convention. The Vienna ment in the world, will be approached in the direc-
Convention itself recognizes the reservation rights tion of a reference source of law for Vietnamese leg-
of member states to certain contents stipulated in islators learn from experience to perfect Vietnamese
Article 12 and Article 96 of the Convention. In the law on goods trading, both in accordance with in-
process of revising the Commercial Law, the Vienna ternational practice, while ensuring management
Convention in this case, like any other legal docu- benefits of the policy and the State in each period.
References:
1. URL: https://cisgvn.wordpress.com/2010/11/01/so-sanh-cisg-va-lu%E1%BA%ADt-vi%E1%BB%87t-nam/
2. URL: https://thongtinphapluatdansu.edu.vn/2008/09/16/1673/
3. Documents of the Party Congress XII: Report evaluating the results of implementing socio-economic development tasks in the five years from 2011 to 2015 and directions and tasks of 5-year socio-economic development in 2016-2020.
