Opinions about the experiences of Vietnam-origin entrepreneurs and the Vietnamese government can be drawn from Trinh Vinh Binh’s case.
“This is a cross-century lawsuit, its implications are not only that Vietnam has lost, but many legal aspects and many different dimensions in the relationship between the Vietnamese foreigners who want to return to the country for investment and the law system of Vietnam, a country that has not yet recognized the “three-branch power separation” and the independence of the court – need to be scrutinized to avoid disasters like the one in which Mr. Trinh Vinh Binh once suffered,” Dr. Dinh Hoang Thang, former Vietnamese ambassador to the Netherlands told BBC Vietnamese’s reporter My Hang on April 13.
“A lot of information regarding the court’s judgment (200 pages long) is still in secret,” he added.
And he commented:
“Compared with some neighboring countries, overseas Vietnamese, with a few exceptions, generally do not really feel secure in doing business, production as well as returning to the country for investment and participating in business activities. This complex mood needs to be overcome soon for the benefit of both the investor and the government.”
“In Vietnam so far, there have been few cases of lawsuits between the people and the state and the rarer is between overseas Vietnamese and the government. However, there are a number of cases that are suspended and wait for being resolved. So the pervasive impact of Trinh Vinh Binh’s case needs to be noted. And the parable “An ant sues a potato” will certainly be reevaluated by the society,” commented Mr. Thang.
Vietnamese-Dutch businessman Trinh Vinh Binh has just been won the case in the court established by the Arbitration Council under the UNCITRAL Arbitration Rules in which he sued the Vietnamese government in a cross-century lawsuit.
Thereby the court asked the Vietnamese government to compensate Mr. Binh $27,518,596 for his confiscated property, $10 million for “mental damage,” $786,672.71 for International Court costs, and $ 7,111,170.94 for legal fees.
What lesson for overseas Vietnamese entrepreneurs?
Mr. Dinh Hoang Thang said that the regulations for overseas Vietnamese to return to Vietnam for doing business have been legalized, so entrepreneurs naturally need to study the legal provisions.
With this same point of view, lawyer Le Cong Dinh from Ho Chi Minh City told the BBC that Vietnamese business people need to comply with Vietnamese laws “to avoid being falsely accused of violating the Vietnamese laws and being sanctioned by law enforcement.”
“The current Vietnamese law generally encourages all investors, including overseas Vietnamese entrepreneurs, to invest and do business in Vietnam. The legal framework is relatively open for people to create businesses and develop their business activities,’ said lawyer Dinh.
However, Mr. Thang and Mr. Dinh both acknowledge that law enforcement in Vietnam still has many problems, causing many obstacles for businesses.
The former ambassador said it is difficult for businessmen to go step by step to do business in Vietnam amid “networks of different interest groups.”
This is because “the interpretation of the law is sometimes not taken by the courts but by different agencies in the state apparatus.” This is really a ‘minefield’ for many foreign investors,” according to former Ambassador Dinh Hoang Thang.
Lawyer Dinh mentioned “bureaucratic habits, corruption, and arbitrary law manipulation” of the state apparatus, and “good business opportunities, largely due to ‘unofficial relationship’ with state officials.”
“Therefore, between the growing business environment and step-by-step consolidation by law, entrepreneurs should choose law-abiding solutions first, to avoid the risks that competitors use state agencies to suppress,” said lawyer Dinh.
What experiences should the Government of Vietnam learn from?
Former Ambassador Dinh Hoang Thang said that the case of Mr. Trinh Vinh Binh will leave many consequences “currently not foreseeable” for the Vietnamese government, especially in the “relationship between overseas Vietnamese who want to return to Vietnam to do business, and more importantly, in the relations between the people and the state.”
One lesson that Vietnam needs to learn from the case of Mr. Trinh Vinh Binh, according to Mr. Thang, is the issue of government agencies unanimously to enforce international laws.
Thang said Vietnam still use its own laws not compatible with international ones despite having been signing many international agreements and conventions.
This situation, according to Mr. Thang, needs to “stop immediately.” Instead, the Vietnamese government needs to “clearly assign the courts to domestic authorities as they seek to approach agreement with the international legal system or interpret domestic provisions in the laws.”
The former ambassador also said that the Ministry of Justice of Vietnam needs to review and compare carefully between its legal system with the international’s ones in order to soon overcome the discrepancies.
In addition, the Vietnamese government needs “to carefully study the dispute settlement mechanisms (ISDS) in bilateral and multilateral agreements (for example in the CPTPP).
In particular, it is necessary to understand the differences between ISDSs with dispute settlement mechanisms in courts and commercial arbitration mechanisms. If not, when faced with international lawsuits, Vietnam will certainly face many disadvantages.
Thang especially emphasized the situation of “sabbatical and group interests” in localities, which, according to him, was “one of the factors that leading Trinh Vinh Binh case this far.”
“Vietnam must stop the situation of disagreement between authorities at different levels and remove obstacles foreign investors are facing as the Vietnamese government leaders have awakened many times in recent years … The Government should have training sessions in localities so as to soon end the problem of local authorities’ power abuse.
“The government should also carefully consider how ‘transparent’ the international court’s ruling should be. The Ministry of Justice soon released a press release on the case of Mr. Trinh Vinh Binh suing the Vietnamese government at the UNCITRAL Arbitration Council. This is almost a far cry from policies that lasted many years ago to keep the information about the lawsuit in secret. Better late than never,” said Thang.
What does the Vietnamese government say?
On April 12, Vietnamese media simultaneously reported the responses of the Vietnamese Ministry of Justice about the case of Mr. Trinh Vinh Binh.
Accordingly, Mr. Do Duc Hien, Chief of Office and a spokesperson for the Ministry of Justice, said “some websites and social networks reported incorrectly the content of the decision along with the performances, inpretation, and subjective speculation which mislead the public,” according to Thanh Nien newspaper.
Mr. Hien also said that the ministry is working with a number of relevant agencies to “carefully study the content of the judgment of the Arbitration Council, and “take the next steps in accordance with the law to ensure maximum rights and interests of the Vietnamese Government.”