#8 Arbitration & Litigation: Evidence, proof in court proceedings and commercial arbitration

Welcome back to The Lawyers Talk channel of BLawyers Vietnam, our dear esteemed listeners; and it is nice to be back on a new podcast today.

The topic of this podcast will concentrate on legal issues of evidence and proof in civil proceedings at court and arbitration proceedings. This is also a critical issue in any dispute between civil and commercial areas.

Concerning the subject matter of this podcast, we would like to invite everyone to join us in listening to Mr. Tran Ngoc Thuyet, a lawyer and Senior Partner of BLawyers Vietnam.

Guest

Greetings, Mr. Tinh and esteemed listeners of BLawyers Vietnam’s podcast program!

Host

Mr. Thuyet, may you provide us with a general overview about the importance of evidence and proof in legal proceedings under Vietnamese laws?

Guest

Under the fundamental principles of Vietnamese procedural law, to prove that lawsuit requests are well-founded and legal for the court to accept the case, the plaintiff must submit along with the lawsuit petition the necessary documents and evidence according to regulations.

In Article 6 of Civil Procedure Code 2015, regulations on the supply of evidence and proof in civil procedures are as follows:

1. The parties have the right and obligation to proactively collect and hand over evidence to the court and to prove that their requests are grounded and lawful.

An agency, organization or individual that initiates a lawsuit or files a request to protect the lawful rights and interests of another person has the right and obligation to collect and supply evidence and proof as though it/he/she is a party.

2. The court shall assist the parties in the collection of evidence and shall only collect and verify evidence in the cases prescribed by the Civil Procedure Code.

The parties have equal rights and obligations when participating in proceedings. They are required to provide documents and evidence to prove and protect their legal rights and interests. The parties requesting the court to protect their rights and legitimate interests must gather, provide, and submit to the court documents and evidence to demonstrate that such requests are justified and lawful.

A party that protests against another person’s claim against him/her/it shall make a written protest and collect, supply and hand over to the court documents and evidence to prove his/her protest.

An agency, organization, or individual that initiates a lawsuit to protect public interests or the State’s interests, or requests the court to protect another person’s lawful rights and interests shall collect, supply and hand over to the court documents and evidence to prove that its/his/her lawsuit or request is grounded and lawful.

A social organization participating in protecting consumer interests does not have the burden to prove the fault of a goods trader or service provider under the Law on Protection of Consumer Interests.

If the party that has the burden of proof fails to produce any evidence or produces insufficient evidence, the court shall settle the civil case or matter based on the collected evidence available in the case or matter file.

Host

How is evidence defined in Vietnamese law, and how is it collected?

Guest

According to Vietnam’s current Civil Procedure Code 2015, the definition of evidence is as follows: Evidence in a civil case or matter is any matter of fact that is handed over or produced to the court by the parties, agencies, organizations or other individuals during the litigation process or which is collected by the court according to the order and procedures prescribed by the Civil Procedure Code and is used by the court as the basis for ascertaining objective details of the case as well as whether or not the parties’ claims or protests are grounded and lawful.

Under the law, the evidence may be collected from the following sources:

  1. Readable, audible or visible materials, electronic data;
  2. Material evidence;
  3. A party’s testimony;
  4. A witness’s testimony;
  5. An expert witness’s conclusions;
  6. On-site appraisal result records;
  7. Property valuation and price appraisal results;
  8. Documents recording events or legal acts, made by a person with official functions;
  9. Notarized or certified documents; and
  10. Other sources as prescribed by law.
Host

Does the law stipulate the requirements and conditions for recognizing evidence as lawful?

Guest

Procedural law does not have specific regulations on what evidence is legal or illegal. However, under Article 95 of the Civil Procedure Code 2015, the Identification of evidence is as follows:

  1. Readable materials shall be regarded as evidence if they are the originals or lawfully notarized or certified copies or are supplied and certified by a competent agency or organization.
  2. Audible and visible materials shall be regarded as evidence if they are produced together with a document of the possessor of such materials describing the origin of those materials if the possessor himself/herself performed the audio or video recording, or with a document containing certification by the supplier of the origin of such materials, or with a document on the audio or video recorded event.
  3. Electronic data messages are expressed in the form of the exchange of electronic data, electronic documents, emails, telegraphs, telexes, faxes and other similar forms as prescribed by the law on electronic transactions.
  4. To be regarded as evidence, material evidence must be an original object related to a civil case or matter.
  5. A party’s or witness’s testimony shall be regarded as evidence if it is recorded in writing or on an audiotape or disk, a videotape or disk, or another device storing sounds and images as prescribed in Clause 2 of this Article or is given orally at a court hearing.
  6. The expert witness’s conclusions shall be regarded as evidence if the expert assessment has been performed strictly according to the procedures prescribed by law.
  7. An on-site appraisal result minutes shall be regarded as evidence if the appraisal has been conducted strictly according to procedures prescribed by law.
  8. Property valuation and price appraisal results shall be regarded as evidence if the valuation or price appraisal has been conducted strictly according to procedures prescribed by law.
  9. A document recording events or legal acts, made by a person with official functions, shall be regarded as evidence if such document has been established strictly according to the procedures prescribed by law.
  10. A notarized or certified document shall be regarded as evidence if the notarization or certification has been performed according to the procedures prescribed by law.
  11. Other sources as prescribed by law shall be regarded as evidence according to the conditions and procedures prescribed by law.

As mentioned above, procedural law does not have specific regulations on what evidence is legal or illegal. However, through the provisions in Article 95 of the Civil Procedure Code 2015 on identifying evidence, we can understand that for evidence to be considered valid and accepted by the authority, the evidence must comply with the above regulations on identifying evidence.

Host

Through Mr. Thuyet’s sharing, we can determine sources of evidence as well as legal regulations on determining the legality of evidence. So, according to the law, are there any exceptions where evidence is automatically recognized as legal?

Guest

The law on proceedings stipulates some exceptional cases in Article 92 of the 2015 Civil Procedure Code.

Accordingly, the following details and facts are not required to be proved:

  1. Details and facts that are clear and known by everyone and are accepted by the court;
  2. Details and facts that have been confirmed in a court’s legally effective judgment or decision or a legally effective decision of a competent state agency;
  3. Details and facts that have been recorded in lawfully notarized or certified documents; if doubting the objectivity of these details and facts or notarized or certified documents, the judge may ask the party, notarizing or certifying agency or organization to produce the master or original documents.

1. If one party admits or does not object to details, facts, materials, documents or conclusions of professional agencies which are presented by the other party, the other party shall not be required to prove them.

2. When a party has a representative participating in legal proceedings, the acknowledgment by the representative is considered as the acknowledgment of the party, provided that it does not exceed the scope of representation.

Accordingly, if a party has a representative participating in the proceedings, that representative’s admission shall be regarded as the admission of such party, provided that such admission does not fall beyond the scope of representation. Therefore, when a party authorizes an individual or organization to represent them in legal proceedings, it is necessary to clearly define the scope and content of the authorization.

Host

So, when individuals and organizations submit a petition to a competent dispute settlement agency, how should they prepare the accompanying evidence?

Guest

As I previously stated, evidence is regulated in several sources. Depending on the type of evidence prepared by the petitioner, the petitioner should ensure the legality of such evidence by law.

When filing a petition, a lawsuit petition shall be accompanied by documents and evidence proving the lawful rights and interests of the petitioner that are infringed upon. If, for an objective reason, the petitioner cannot submit adequate documents and evidence together with the petition, the petitioner shall submit available documents and evidence to prove that the petitioner’s lawful rights and interests are infringed upon. The petitioner shall supplement the petitioner’s documents and evidence or add other documents and evidence as requested by the court during the settlement of the case.

Host

Is it correct that the plaintiff is exercising their right and responsibility to prove their case in court? And how is this obligation regulated according to the law?

Guest

That is correct. As I mentioned earlier, specifically, the obligation to prove is regulated as follows:

  1. The litigant who requests the court to protect their legitimate rights and interests must collect, provide and submit to the court documents and evidence to prove that their request is based on legal and legitimate grounds.
  2. The litigant who objects to the request of another person must express it in writing and must collect, provide and submit to the court documents and evidence to prove their objection.
  3. The agency, organization or individual who initiates the lawsuit to protect public interests, the interests of the state, or requests the court to protect the legal rights and interests of others must collect, provide and submit to the court documents and evidence to prove that their lawsuit or request is based on legal and legitimate grounds.
  4. The litigant must present evidence to prove their case. If they cannot present evidence or do not present sufficient evidence, the court will resolve the civil case based on the evidence collected in the case file.
Host

Are there any cases where the litigant will not need to fulfill the obligation of proof as stated?

Guest

Yes, there are 04 cases where the litigant is not required to prove their case:

  1. First, consumers do not have the burden to prove the fault of a goods trader or service provider. In this case, the sued goods trader or service provider has the burden to prove he/she/it is not at fault for causing the damage;
  2. Second, the litigant being an employee in a labor case cannot supply and hand over to the court documents and evidence because such documents and evidence are managed and kept by his/her employer; in this case, the employer is required to supply and hand over such documents and evidence to the court;
  3. Third, if the employee sues against the unilateral termination of his/her labor contract in the case in which the employer is prohibited by the labor law from unilaterally terminating such labor contract or from disciplining the employee, the burden of proof rests on the employer; and
  4. Fourth, social organizations participating in protecting the rights of consumers are not required to prove the fault of organizations or individuals engaged in the goods and services business.
Host

If the litigant is unable to submit evidence because they are unable to collect it by themselves, can they request the competent authority’s assistance to collect the evidence?

Guest

The answer is “Yes” according to the Civil Procedure Code.

If failing to collect documents and evidence after having taken all necessary measures, a party may request the court to issue a decision to request an agency, organization, or individual that is keeping or managing documents and evidence to supply them or may request the court to collect documents and evidence to ensure the proper settlement of the civil case or matter.

A party that requests the court to collect documents and evidence shall make a written request clearly stating the matter to be proved; the documents and evidence to be collected; the reason why he/she/it is unable to collect documents and evidence; and the full name and address of the individual, or the name and address of the agency or organization, which is managing and keeping such documents and evidence.

Host

The information on evidence and proof in court proceedings is incredibly useful and necessary for those who are concerned with providing evidence and fulfilling the burden of proof when disputes arise in the civil sector.

In addition, commercial arbitration is also very common among dispute settlement agencies. Could you share the burden of proof and provide evidence in commercial arbitration proceedings?

Guest

Similar to court litigation and international arbitration proceedings, the laws on commercial arbitration prescribe that the claimant and the respondent have both the right and obligation to provide evidence to the Arbitral Tribunal in supporting their claims and prove that the facts relevant to the issues under dispute are well-grounded.

However, the disputing parties often consider that the Arbitral Tribunal is obliged to collect evidence at their request to resolve the case. Therefore, the practice of settling disputes at some Arbitration centers in Vietnam shows that the parties have not actively collected evidence to prove their claims but requested the Arbitral Tribunal to do so.

It should be noted that there has been this case in practice: the claimant initiated an arbitration but failed to provide evidence to support its claim from the time of case acceptance until the date of opening the final settlement meeting. At the final settlement meeting, the claimant requested an extension of the time to provide evidence, but the Arbitral Tribunal refused the claimant’s request and issued an award not to accept the claimant’s claim. After that, the claimant requested the court to annul the arbitral award on the ground that the Arbitral Tribunal violated the basic principles of Vietnamese law when refusing its request for extending the time of providing evidence. Finally, the competent Court stated that the Arbitral Tribunal’s award did not violate the Vietnamese laws’ basic principles in this case and refused the claimant’s request for annulling the arbitral award (Refer to Decision No. 12/2018/QD-KDTM dated 9 November 2018 of the Ha Noi City People’s Court).

Host

Do the parties have an obligation to provide evidence upon request by the arbitration council?

Guest

The current Law on Commercial Arbitration 2010 has not stipulated the right of the Arbitral Tribunal to request the disputing parties to provide evidence. However, regarding this issue, the Arbitration Rules of Vietnam International Arbitration Center (VIAC) regulates that the Arbitral Tribunal shall have the power to request the disputing parties to provide evidence, and the parties shall be obliged to provide evidence accordingly.

Host

Could you explain how the arbitration council can verify and collect evidence?

Guest

1. The jurisdiction of the arbitration council to verify matters: In the process of dispute settlement, the arbitration council has the right to meet or exchange with the parties involved in the dispute, with the presence of the other party in appropriate forms to clarify issues related to the dispute. The arbitration council may investigate the matter from a third party, with the presence of the parties or after notifying the parties.

2. The jurisdiction of the arbitration council to collect evidence: If the arbitration council or one or more parties have applied necessary measures to collect evidence but still cannot collect it themselves, they may send a written request to the competent court to request the agency, organization or individual to provide documents that can be read, heard, seen, or other relevant objects related to the dispute. The request must clearly state the content of the dispute being resolved at the arbitration, the evidence that needs to be collected, the reason it cannot be collected, and the name and address of the agency, organization or individual managing and preserving the evidence that needs to be collected.

Within 7 working days from the date of receiving the written request for evidence collection, the president of the competent court shall assign a judge to consider and resolve the request for evidence collection. Within 5 working days from the date of assignment, the judge must have a written request for the agency, organization, or individual managing and preserving the evidence to provide the evidence to the court and send that document to the same-level Procuracy to perform the functions and tasks as prescribed by law.

  • Agencies, organizations and individuals who are managing and preserving evidence have a responsibility to provide complete and timely evidence upon request by the court within 15 days from the date of receiving the request.
  • Within 5 working days from the date of receiving the evidence provided by the agency, organization or individual, the court must notify the arbitration council and the requesting party to proceed with the exchange of evidence.
  • In case the agency, organization, or individual fails to provide the requested evidence within the prescribed time limit, the court must immediately notify the arbitration council and the requesting party, and at the same time, issue a written request to the competent agency or organization to handle it according to the provisions of the law.

Also, the party that requests the collection of evidence or summons of witnesses must pay the fees and costs thereof. If the arbitral tribunal requests the court to collect evidence or summon witnesses, the fees and costs shall be paid by the party that requests the arbitral tribunal.

3. In practice, the application of the above regulations may face several difficulties as follows:

  • The Arbitral Tribunal has non-state jurisdiction and coercive power. Thus, the witnesses often do not provide evidence, or documents, or attend the meeting session for settling the dispute as requested by the Arbitral Tribunal;
  • The assessment and valuation of assets is the Arbitral Tribunal’s obligation or under the discretion of the Arbitral Tribunal, which is not clearly understood; and
  • Expert evidence is rarely used in Vietnam Arbitration proceedings due to the lack of comprehensive regulations for expert evidence.
Host

Thank you very much for your sharing today, Mr. Thuyet.

Hello listeners, this podcast episode of The Lawyers Talk is ending now. Thanks for your attention and see you again in the upcoming podcast.

Please leave your comment below if you have any questions or concerns.

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See you soon.

The above is not official advice from BLawyers Vietnam. If you have any questions or suggestions about the above, please contact us at consult@blawyersvn.com. We would love to hear from you.

Date: 28 December 2023

Host

Thanhnguyen
Thanh Nguyen

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Ls Tinhnguyen
Tinh Nguyen

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Featured Guest

Thuyet Tran
Thuyet Tran

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