Agreement between the Socialist Republic of Vietnam and Hungary on Mutual Legal Assistance in Civil Matters 2018

AGREEMENT

BETWEEN

THE SOCIALIST REPUBLIC OF VIET NAM AND HUNGARY ON MUTUAL LEGAL ASSISTANCE IN CIVIL MATTERS

The Socialist Republic of Viet Nam and Hungary (hereinafter individually: Contracting Party; hereinafter collectively: Contracting Parties),

Desiring to strengthen mutual legal cooperation in civil matters between the Contracting Parties on the basis of mutual respect for sovereignty and equality as well as mutual advantages,

Have agreed on the following:

PART ONE

GENERAL PROVISIONS

Article 1

Scope

1. The Contracting Parties shall provide each other, in accordance with the provisions of this Agreement, mutual legal assistance in the following issues related to civil matters:

a) service of judicial and extra-judicial documents;

b) taking and transferring of evidence;

c) summons of witnesses and experts;

d) recognition and enforcement of decisions and arbitral awards as provided for in Part Four of this Agreement;

e) exchange of legal information and documents relating to civil matters and mutual legal assistance in civil matters;

f) providing and transferring of civil record documents;

g) other requests for mutual legal assistance.

2. The term “civil” in this Agreement shall include civil, marriage and family, business, commercial and labour matters.

3. Unless otherwise provided in this Agreement, the term “competent authorities” means all courts and other authorities that have competence in civil matters pursuant to the law of the Contracting Party concerned.

Article 2

Judicial Protection of Rights

1. Citizens of either Contracting Party shall, in the territory of the other Contracting Party, enjoy the same judicial protection of personal and property rights as citizens of the other Contracting Party and have the right to access to and exercise procedural rights before the courts and other competent authorities having jurisdiction over civil matters of the other Contracting Party under the same conditions accorded to the citizens of the other Contracting Party in civil matters.

2. The provisions of this Agreement shall also apply to legal persons and other entities without legal personality established in the territory of one of the Contracting Parties pursuant to its national law.

Article 3

Channels of Communication

1. In the course of the application of this Agreement, the authorities of the Contracting Parties acting in civil matters shall contact each other through the designated Central Authorities of the Contracting Parties.

2. The Contracting Parties shall communicate the data on the designated Central Authorities and any changes thereof to each other through diplomatic channels simultaneously with the communication under Article 32 on the ratification of the Agreement, whereas later changes shall be communicated without delay.

3. In order to facilitate communication between each other, the Central Authorities of the Contracting Parties shall designate a contact person whose name and contact details as well as any changes thereof shall be communicated to each other.

4. This Agreement shall not prevent the Contracting Parties from sending requests for legal assistance through diplomatic channels.

Article 4

Lis pendens

1. If there are proceedings pending before the authority of either Contracting Party, between the same parties, initiated for the same right arising from the same factual basis, and the decision made therein may be recognised and enforced on the basis of the Agreement in the territory of the other Contracting Party, the authority of this other Contracting Party may terminate the proceedings commenced before it subsequently.

2. For the application of paragraph 1, the authorities of the Contracting Parties may, through the Central Authorities, request information on proceedings pending in the territory of the other Contracting Party.

Article 5

Use of languages

1. The language of communication between the Central Authorities shall be English.

2. Unless otherwise provided in this Agreement, requests for legal assistance as well as accompanying documents shall be prepared by the requesting authority in its own language and the requesting authority shall attach thereto a certified translation in the language of the requested authority.

3. The requested authority shall send its reply to the request for legal assistance and the documents attached thereto in its own language.

Article 6

Exemption from legalisation

1. Public documents issued by the competent authorities of one of the Contracting Parties as well as private documents carrying an official clause such as, in particular, the certification of registration, signature or identity, that are forwarded under Article 3 in the course of the application of the Agreement, shall not require additional legalisation. The sending Contracting Party shall ensure the authenticity of the documents sent as indicated above.

2. Notwithstanding paragraph 1, if there is reasonable doubt that the signature, the status of the signing person or the seal or the stamp is not authentic, the competent authority of the Contracting Party may, in the manner specified in Article 3, request the Central Authority of the other Contracting Party to verify the authenticity of the documents. Such verification may only be requested in exceptional cases, indicating the underlying reasons.

Article 7

Execution of legal assistance requests

1. The requested Contracting Party shall execute requests for legal assistance  in accordance with its national law.

2. The requested Contracting Party may execute requests for legal assistance in a specific manner requested by the requesting Contracting Party if such execution is not contrary to the law of the requested Contracting Party.

3. If the address indicated in the request is inaccurate or the addressee named in the request cannot be found at the given address during execution of the request for legal assistance, the competent authority of the requested Contracting Party shall return the request to the requesting Contracting Party or take the necessary measures to determine the address ex officio, provided that it possesses the necessary data for that execution.

4. Unless otherwise provided in this Agreement, a request for legal assistance shall be timely and expeditiously executed within one hundred and twenty (120) days from the date of receipt of the request. In case of delay for legitimate reasons, the requested Contracting Party shall promptly inform the requesting Contracting Party.

Article 8

Refusal and postponement of legal assistance

1. The requested Contracting Party may refuse to execute the request submitted under this Agreement, if it considers that executing the request would prejudice its sovereignty, public safety, public order or the fundamental principles of its legal order, or if executing the request does not fall within the functions of the competent authorities of the requested Contracting Party. The requested Contracting Party shall, within thirty (30) days from the date of the receipt of the request, inform the requesting Contracting Party of the reason for refusal to execute the request.

2. The execution of a request for legal assistance may be postponed if the requested Contracting Party finds that the immediate execution of the request is likely to impede ongoing proceedings in the territory of the requested Contracting Party. The requested Contracting Party shall inform the requesting Contracting Party of the reasons and a foreseeable duration of the postponement within thirty (30) days from the date of receiving the request.

Article 9

Costs of legal assistance

1. The Contracting Parties shall provide each other legal assistance free of charge, except for the following cases:

a) expenses relating to a witness or expert shall be subject to Articles 14 and 15 of this Agreement;

b) expenses of an expert or interpreter relating to the execution of request for taking evidence as provided for in Article 13 of this Agreement if the expert or interpreter is not a public servant. In such cases, the Contracting Parties shall consult each other to determine these expenses;

c) expenses related to recognition and enforcement of decisions and arbitral awards in the courts of each Contracting Parties;

d) costs of service of documents in accordance with Article 12 of the Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters, done at The Hague, on the 15th day of November, 1965 (hereinafter; Hague Service Convention);

e) extraordinary or particular expenses if the requesting Contracting Party requests for execution according to a special procedure.

2. The requested Contracting Party may claim the advancement and the reimbursement of costs under this Article in accordance with the law of the requested Contracting Party.

PART TWO

PROCEDURE FOR LEGAL ASSISTANCE

Article 10

Service of documents

1. A request for service of documents shall be in writing and shall contain the following information:

a) date and place of issuance of the request;

b) full name, address and any other contact information of the requesting authority, including telephone and fax number as well as e-mail address;

c) full name, address and any other contact information of the requested authority (if known);

d) a list of documents to be served;

e) full name and address of addressee, and if known: gender, citizenship, occupation, place of birth of the addressee as well as name and address of his/her representatives;

f) information on the nature of the case;

g) description of the requested special procedure to serve documents (if any).

2. The request and the documents to be served shall be sent in two (2) copies.

3. If service under this Article cannot be effected in sufficient time to enable the addressee to arrange for his/her defence, the requested Contracting Party may refuse the execution of the request.

4. Notwithstanding paragraph 2 of Article 5, if there is no certified translation in the official language of the requested Contracting Party attached to the documents to be served or the documents are not written in that language, the documents can only be served on the addressee if that person accepts them voluntarily.

5. The Contracting Parties may request service by electronic means (e- service) subject to legal and practical conditions in both Contracting Parties.

6. The requested Contracting Party, after serving the documents, shall send to the requesting Contracting Party a certificate or other documents proving the service of documents or notify the requesting Contracting Party of the reasons that prevented full or partial execution of the request of service of documents. A copy of the certificate or other documents may, upon request, be sent by fax or e-mail before the original is sent by post.

7. The authorities of the Contracting Parties may also serve documents by post to persons residing in the territory of the other Contracting Party, however due service can only be effected if the following requirements are met:

a) the document has been sent as a registered letter with acknowledgement of receipt, and

b) a certified translation has been attached to the document in the official language of the Contracting Party where service takes place, unless the addressee is a citizen of the sending Contracting Party, and

c) the addressee voluntarily accepted the document, and attested the receipt with the addressee’s signature, and

d) the service takes place in sufficient time to enable the addressee to arrange for the addressee’s defence.

Article 11

Execution of service of documents under the Hague Service Convention

Notwithstanding Article 10, the Contracting Parties may apply the Hague Service Convention.

Article 12

Taking of evidence

1. Taking of evidence means in particular transferring physical evidence or documents; hearing parties, witnesses, experts and other persons; performing inspections.

2. The request for the taking of evidence shall be drafted by the authority in the proceedings of which the necessity of legal assistance arises, and it shall contain the following information:

a) full name of the requesting authority and, if known, of the requested authority;

b) designation of the case, including the nature and subject matter of the case, and a brief presentation of the facts of the case, as well as the name of the parties involved in the proceedings and their possible legal representatives;

c) full name, address, residence and if known the number of identity card (citizen card), passport and, if necessary, citizenship, occupation and other data of those persons at whom the request is directed and their possible legal representatives; or the full name, registered address or centre of administration in the case of legal persons;

d) the purpose, summary of the request, the information necessary for the execution of the request, including questions to be put to the concerned persons or organizations; documents or materials to be examined; and necessary measures (if needed).

Article 13

The handling of a request for the taking of evidence

1. At the request of the requesting authority, the requested authority shall communicate the place and time of the execution of the legal assistance in a  timely fashion.

2. Subject to legal and practical conditions in the requested Contracting Party, the request for taking of evidence shall include establishing the address of a person, residing in the territory of one of the Contracting Parties, against  whom a person, having domicile or residence in the territory of the other Contracting Party, presents a claim in a matter falling under paragraph 2 of  Article 1 and, furthermore, also establishing the place of work of and the amount of income of the person against whom a claim for maintenance has  been filed. In order to facilitate such requests being completed, the requesting  Contacting Party shall communicate all data available in the case.

3. The requested Contracting Party shall inform in writing the requesting Contracting Party of the outcome of the execution of the request, attaching the requested evidence and related documents, or of the obstacles to execution.

Article 14

Summoning of witnesses and experts

1. The appearance of a witness or expert residing in the territory of the other Contracting Party shall be voluntary, no coercive measure may be used against witness or expert who does not appear.

2. The summons shall be served on the witness or the expert at least ninety (90) days before the day on which he/she must appear before the competent authority of the requesting Contracting Party.

3. In the summons, the witness or the expert shall be informed of his/her rights and obligations, the conditions for the advancement and reimbursement of his/her costs and fees, and the manner of payment. In the summons, no reference shall be made to the use of any coercive measure against the witness or the expert.

4. If possible, the requested Contracting Party shall inform the requesting Contracting Party on whether the person summoned intends to comply with the summons.

Article 15

Protection and costs of witnesses and experts

1. A witness or expert who has been summoned from the territory of the other Contracting Party, and who appears before the authority of the requesting Contracting Party shall not be, in the territory of this Contracting Party, subjected to criminal proceedings, be arrested, have his/her personal freedom restricted in any manner for any act or on the basis of any conviction, that has been committed before his/her entry into the territory of the requesting Contracting Party.

2. The protection under paragraph 1 of this Article shall cease after fifteen (15) days following the day on which the competent authority of the requesting Contracting Party has, in writing, officially communicated to the witness or expert that his/her presence is no longer necessary, if the witness or the expert has not left or has left, but returned to the territory of the requesting Contracting Party. This 15 day period of time shall not include any period of time during which the witness or the expert was not able to leave the territory of the requesting Contracting Party through no fault of his/her own.

3. The witness or the expert may claim the reimbursement of his/her travel and subsistence expenses, as well as fees. These costs shall be borne by the requesting Contracting Party. The subsistence expenses and the fees shall be determined to be at least as high as the amounts determined in the schedules of fees and provisions in force at the Contracting Party where the hearing is to be performed. At his/her request the whole or part of the travel and subsistence expenses shall be advanced to the witness or the expert.

4. The requesting Contracting Party shall facilitate the witness’ or expert’s entry to and stay in the territory of the requesting Contracting Party in accordance with its national law.

Article 16

Sending of public documents on civil status

1. Each Contracting Party shall, upon request in accordance with Article 3, send to the other Contracting Party the documents on the civil status of the: citizens of the latter as provided for by the law of the Requesting Contracting Party (court decisions, extracts from the civil register and certified copies).

2. The documents mentioned in paragraph 1 shall be sent to the other Contracting Party without a translation in accordance with Article 3.

Article 17

Provision of information on the law

1. Upon request, the Central Authorities of the Contracting Parties provide information on the legislation of their States as well as the case law of the courts.

2. In case the provision of information on the law of the requested Contracting Party is necessary for making a decision in a case pending before an authority acting in a civil case, the Central Authority of the requested Contracting Party  shall provide, on the basis of a request of the requesting authority forwarded  under Article 3, information on its legislation and the case law of the courts.

3. The request under paragraph 2 shall contain the following:

a) full name of the requesting authority;

b) a brief description of the case and the indication of additional pieces of information which may facilitate the response;

c) the questions for which information on the law of the requested Contracting Party is necessary.

4. The requested Contracting Party shall provide the information in its official language or, if available, in English.

PART THREE

PROCEDURAL PROVISIONS

Article 18

Exemption from security for litigation costs

A citizen of either Contracting Party, who has domicile or residence in the territory of one of the Contracting Parties shall not be obliged to provide security in the territory of the other Contracting Party for litigation costs or any other security because he/she is a foreigner or because he/she has no domicile or residence in the territory of the Contracting Party before the authority of which he/she proceeds.

Article 19

Entitlement to legal aid and benefits of litigation costs

Citizens of either Contracting Party shall be entitled to legal aid and benefits of litigation costs in the territory of the other Contracting Party under the same conditions and to the same extent applying to citizens of the other Contracting Party.

Article 20

Application for legal aid and benefits of litigation costs

1. Citizens of either Contracting Party may apply for legal aid and benefits of litigation costs provided for by Article 19.

2. Such application shall be submitted

a) directly to the competent authority of the Contracting Party in the territory of which legal aid, benefits of litigation costs is sought; or

b) through the competent authority of the Contracting Party of the applicant’s citizenship; this authority shall forward the application and its enclosures to the competent authority of the Contracting Party in the territory of which legal aid, benefits of litigation costs is sought in accordance with paragraph 1 of Article 3.

3. The application and its enclosures shall be supplemented with a certified translation into the language of the Contracting Party in the territory of which legal aid, benefits of litigation costs is sought.

4. The authority that makes a decision on the application, may request supplementary information from the applicant if it considers it necessary.

PART FOUR

RECOGNITION AND ENFORCEMENT OF DECISIONS

Article 21

General provisions relating to recognition and enforcement of decisions

1. The provisions of this Part shall not apply to decisions made in procedures relating to insolvency.

2. For the purposes of application of this Part “decision” means any final and binding judgement or other decision given by a competent authority of a Contracting Party in a civil matter, whatever the decision may be called. This definition includes, in particular, decisions brought in regard to civil claims asserted in criminal and administrative cases as well as extrajudicial decisions made regarding personal status, marriage, family, succession or commercial matters.

Article 22

Recognition and enforcement of decisions

1. A decision made by the authority of either Contracting Party in the matter of personal status and dissolution or invalidity of marriage shall be recognised in the territory of the other Contracting Party without any additional proceedings. This provision shall not prevent any interested person from applying, in accordance with the law of this other Contracting Party, to the court of the other Contracting Party to declare that the decision is recognised or not recognised in the territory of the other Contracting Party.

2. A decision made by the authority of either Contracting Party not covered by paragraph 1 shall be recognised in accordance with the procedural law of the Contracting Party in the territory of which recognition is sought.

3. A decision recognised by either Contracting Party pursuant to paragraph 1 or 2 has the legal effect under the law of the decision-making Contracting Party in the territory of the Contracting Party of the place of recognition.

4. A decision recognised under paragraph 2 of this Article that is enforceable under the law of the decision-making Contracting Party shall be enforced in accordance with the law of the Contracting Party in the territory of which enforcement is sought.

Article 23

Refusal of the recognition and enforcement of decisions

1. The recognition and enforcement of decisions under Article 22 shall be refused if:

a) the authority of the Contracting Party which made the decision had no jurisdiction to decide the case pursuant to the law of the Contracting Party in the territory of which recognition and enforcement of the decision is sought;

b) the defendant or the person against whom the decision to be enforced has been made did not participate in the proceedings because the document instituting the proceedings had not been duly served on that person in sufficient time to allow that person to prepare the defence;

c) proceedings for the same right arising from the same factual basis between the same parties was commenced at the authority of the Contracting Party in the territory of which recognition and enforcement of the decision is sought earlier than at the authority of the Contracting Party where the decision was made;

d) a final and binding decision regarding the same right arising from the same factual basis between the same parties was made earlier by the authority of the Contracting Party in the territory of which recognition and enforcement of the decision is sought;

e) a final and binding decision has been made earlier in a third state regarding the same right arising from the same factual basis between the same parties which may be recognised and enforced in the territory of the Contracting Party in which recognition and enforcement of the decision is sought;

f) the recognition or enforcement of the decision is contrary to the public policy of the Contracting Party in the territory of which recognition and enforcement is sought.

2. If, in matters regarding personal status and family law, jurisdiction is based on citizenship according to the law of either Contracting Party, in the course of the application of point a) of paragraph 1 both citizenships shall be taken into account of a person who is a citizen of both Contracting Parties.

Article 24

Application of national law for the recognition and enforcement of decisions

If a decision made by the authority of either Contracting Party cannot be recognised or enforced in the territory of the other Contracting Party pursuant to the provisions of this Agreement, the Agreement shall not prevent recognition and enforcement of the decision pursuant to the national law of this latter Contracting Party.

Article 25

Application for recognition or enforcement of the decision

1. The application for recognition or enforcement of the decision may be submitted directly to the competent authority of the Contracting Party in the territory of which recognition or enforcement is sought.

2. The application may also be submitted to the authority which made the decision of first instance in the case; in such an event, the application shall be sent to the authority of the other Contracting Party, through the Central Authorities; however, the task of the Central Authorities shall be limited to sending the application and its enclosures.

3. The application shall contain the following information:

a) name and address of the applicant and, where applicable, the name and address of the legal representative of the applicant;

b) name and address of the opposing party and, where applicable, the name and address of the legal representative of the opposing party;

c) where applicable, information related to the property of the opposing party in the territory of the Contracting Party in which enforcement is sought; and

d) additional information that can facilitate making the decision on recognition or enforcement.

4. The following shall be enclosed to the application:

a) the decision or its certified copy,

b) the certificate which certifies that the decision is final and binding and enforceable, unless this is apparent from the decision itself;

c) a certificate stating that the document instituting the proceedings has been served duly and in sufficient time on the losing party who did not participate in the lawsuit;

d) the certified translation of the application as well as the documents mentioned under point a) to c) in the language of the Contracting Party in the territory of which recognition or enforcement is sought.

Article 26

Procedures related to recognition or enforcement of decisions

1. The national law of the requested Contracting Party shall apply to issues regarding the procedures on recognition or enforcement of decisions not regulated in this Agreement.

2. A decision made by the authority of the other Contracting Party shall not be reviewed on the merits. The court deciding on the application for recognition or enforcement shall solely resort to determining whether the conditions for recognition or enforcement, as determined under this Part, exist.

3. The obligor may raise the objections against the enforcement allowed by the law of the Contracting Party the authority of which has made the decision on the enforcement.

Article 27

Settlements

The provisions of this Part shall apply mutatis mutandis to settlements approved by a competent authority.

Article 28

Recognition and enforcement of arbitration awards

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards done in New York, on June 10 1958 shall apply to recognition and enforcement of arbitral awards made in the territory of either Contracting Party in the territory of the other Contracting Party.

PART FIVE

TRANSITIONAL AND FINAL PROVISIONS

Article 29

Relationship with other International agreements

1. The provisions of this Agreement do not affect the rights and obligations of the Contracting Parties arising from other international agreements to which both Contracting Parties are Parties.

2. This agreement does not affect Hungary's obligations, including future obligations, arising from the membership of the European Union.

Article 30

Transitional provisions

1. Articles 21 to 27 of this Agreement shall also apply to recognition and enforcement of decisions made and settlements approved prior to entry into force of the Agreement but not before 16 February 1986.

2. The Treaty on legal assistance in matters of civil, family and criminal law, signed in Hanoi on 18 January 1985 shall apply to requests for legal assistance sent to, but not yet executed by the requested Contracting Party before the date of entry into force of this Agreement.

Article 31

Dispute resolution, conciliation

1. The Contracting Parties shall handle their contentious issues, which may emerge in relation to the application, interpretation and execution of this Agreement, in negotiations carried out via their Central Authorities.

2. The Contracting Parties shall ensure the exchange of positions and opinions regarding the implementation of the Agreement in the framework of the mechanisms of cooperation existing between them.

3. The Contracting Parties shall review and evaluate the implementation of the Agreement every three years.

Article 32

Ratification and entry into force

1. This Agreement shall be ratified in accordance with the provisions of the national law of the Contracting Parties. The Agreement shall enter into force on the thirtieth day after the receipt of the last written notification through diplomatic channels by which the Contracting Parties notify each other that they have completed their ratification procedures.

2. This Agreement is concluded for an indefinite period of time.

3. With the entry into force of this Agreement the Treaty on legal assistance in matters of civil, family and criminal law, signed in Hanoi on 18 January 1985, shall be repealed.

4. Either Contracting Party may terminate this Agreement by sending a written notice to the other Contracting Party through diplomatic channels. Termination shall take effect six months after the day on which it was received by the other Contracting Party.

5. In the event of the termination of the Agreement, requests for legal assistance received before termination took effect shall be handled pursuant to the provisions of this Agreement.

IN WITNESS WHEREOF, the undersigned, duly authorised pursuant to their national law, do sign the present Agreement.

Done at Budapest, on 10 September 2018 in two original copies in the Vietnamese, Hungarian and English languages. All three language versions are equally authentic. In case of any contradiction or divergence of interpretation, the English text shall prevail.