1997) LAW REFORM IN VIETNAM 559
legal culture, or how the proposed legislation differs from U.S. or
E.U. law.
An additional risk associated with the law reform business is
that Western-style business law may be inappropriate for the
receiving country, whether substantively, procedurally, or because
it may interfere with more critical privatization and
democratization efforts.
9
Both Professor Cao and Professor Waller
have written elsewhere about the danger of presuming the existence
of universal models and that such models are often exported under
the broad rubric of development, economic transformation, or, as in
recent years, privatization.
10
Professor William Kovacic has
discussed the difficulties of promoting long-term, meaningful legal
reform, the likelihood of failure when a foreign law expert
"parachutes" into a foreign legal system for a series of brief visits,
and the dangers of law reform efforts that serve the needs of the
foreign law expert rather than the client.
11
China, for example, has pursued a model of economic reform
wholly different from the path pursued both by the transitional
economies of Eastern Europe and the World Bank's agenda.
12
Given the intersections of various historical, political, and cultural
factors in the Chinese economy, it is doubtful
9. See A.E. Rodriguez & Malcolm B. Coate, Limits to Antitrust Policy
for Reforming Economies, 18 HOUS. J. INT'L L. 311 (1996); A.E.
Rodriguez & Mark D. Williams, A Response to the Effectiveness of
Proposed Antitrust Programs for Developing Countries, 19 N.C. J. INT'L
L. & COM. REG. 233 (1994); James Langerfeld & Marsha Blitzer, Is
Competition Policy the Last Thing Central and Eastern Europe Need?, 6
AM. U. J. INT'L L. & POL’Y 347 (1991).
10. See Lan Cao, The Cat That Catches Mice: China's Challenge to
the Dominant Privatization Model, 21 BROOK. J. INT'L L. 97 (1995),
reprinted in 4 FOREIGNERS IN CHINESE LAW, (Tahirih Lee ed.,
1996); Spencer Weber Waller, Neo-Realism and the International
Harmonization of Law: Lessons from Antitrust, 42 U. KAN. L. REV. 557
(1994).
11. See William E. Kovacic, The Competition Policy Entrepreneur and
Law Reform in Formerly Communist and Socialist Countries, 11 AM. U.J.
INT'L L. & POL’Y 436 (1996); William E. Kovacic, Designing and
Implementing Competition and Consumer Protection Reforms in
Transitional Economies: Perspectives from Mongolia, Nepal, Ukraine,
and Zimbabwe, 44 DEPAUL L. REV. 1197 (1995); William E. Kovacic,
Competition Policy, Economic Development, and the Transition to Free
Markets in the Third World: The Case of Zimbabwe, 61 ANTITRUST L.J.
253 (1991).
12. See generally Philip M. Nichols, Privatization Along the Silk
Road: A Comparison of Privatization Techniques in Central Asia, 29
N.Y.U. J. INT'L L. & POL. 299 (discussing the "Chinese model" of
privatization, which allows privately owned enterprises to thrive alongside
large state-owned enterprises).
560 INTERNATIONAL LAW AND POLITICS [Vol. 29:555
whether the prevailing model of privatization could have been
successfully transferred to China.
13
There is similar futility in
transplanting culturally and historically contingent competition law
to developing countries.
14
The result is often reminiscent of the
1980 film The Gods Must Be Crazy, in which bushmen in the
Kalahari Desert find and come to worship a Coke bottle thrown
from a passing airplane—only later to rid themselves of the evil
object by throwing it off the edge of the world.
II. TRAVEL TO VIETNAM
The purpose of our trip was to contribute to the law reform
movement in Vietnam by offering our expertise on U.S. business
law to law students and legal scholars who will be positioned to
shape the legal infrastructure in the new Vietnam. To determine
which subject areas would be most valuable to our audiences, we
researched the literature on Vietnam's new openness to Western
commerce. Despite its impressive volume, however, the bulk of the
literature consisted of bland newspaper articles on "doing business
in Vietnam." In fact, to our surprise, we uncovered few scholarly
English-language treatments of doi moi.
15
Furthermore, our sponsors were disappointingly un-
forthcoming regarding our precise mission—perhaps because they
themselves were operating somewhat in the dark.
16
We were told to
prepare to lecture for three or four days at the
13. See Cao, supra note 10.
14. See Waller, supra note 10.
15. See Pham Van Thuyt, Legal Framework and Private Sector
Development in Transitional Economies: The Case of Vietnam, 27 LAW
& POL’Y INT'L BUS. 541 (1996); Luke Aloysius McGrath, Vietnam's
Struggle to Balance Sovereignty, Centralization, and Foreign Investment
Under Doi Moi, 18 FORDHAM INT'L L J. 2095 (1995); Brown, supra
note 5; Mark Sidel, The Re-Emergence of Legal Discourse in Vietnam, 43
INT'L & COMP. L.Q. 163 (1994); Mark Sidel, Law Reform in Vietnam:
The Complex Transition from Socialism and Soviet Models in Legal
Scholarship and Training, 11 UCLA PAC. BASIN LJ. 221 (1993).
16. Indeed, we are still not entirely certain about the identity of our
sponsor. The individual who handled all contacts was a Vietnamese
expatriate and co-author of a book on Vietnamese re-education camps.
Most of the correspondence came from "The Vietnam Free Market
Project," an organization which had sponsored a number of past
excursions to Vietnam by U.S. business and law school professors. Our
contact's letterhead, however, indicated an affiliation with the "U.S Asia
Management Institute." Whoever the
1997] LAW REFORM IN VIETNAM 561
National University of Hanoi and perhaps for one day at one of the
two law schools in Ho Chi Minh City. Our audiences would consist
of law students, professors, government officials, and perhaps
judges. Based on this limited guidance, we decided to arrange the
curriculum to provide a full-day introduction to the U.S. legal
system, followed by half-day segments on business associations,
the GATT/WTO system, foreign investment, and dispute
resolution.
As the departure date drew near, most of the logistical
arrangements remained unconfirmed and our teaching schedules
remained unsettled. Accommodations had supposedly been made
by the Ministry of Education in Ministry-run hotels, but we had not
been provided with addresses. Our visas did not arrive until two
days before our departure, after multiple pleas to the Vietnamese
embassy in Washington, D.C., and the consulate in New York City,
and after the tendering of an additional "facilitating" payment.
17
Our American sponsor sent fifteen hundred dollars to pay our
Vietnamese liaison who would be our contact for the twelve days in
Vietnam. Thus, we set forth to practice what we had thus far only
preached.
A. Arrival in Saigon
We landed in Saigon’s
18
Tan Son Nhut Airport, which,
according to Professor Cao, had undergone a miraculous
transformation since her 1991 trip. At that time the runway had
been overcome with weeds, and a herd of grazing pigs could be
seen from the airplane. Since then, the runway had been resurfaced
and the herd of pigs had been replaced by a flock of airport buses
sporting an ad that read "Pepsi Cola Welcomes You to Ho Chi
Minh City." We were told that the Vietnamese government had
decided to create a better first impression for the increasing
numbers of foreign visitors.
On the night we arrived, it was 92 degrees and muggy. Casting
our eyes around the terminal, we speculated that air-
real sponsor, it received its funding from the United States Agency for
International Development.
17. Under the exception provided in the Foreign Corrupt Practices Act
of 1977, 15 U.S.C. sec. 78 (ddl-2), facilitating or expediting payment to
secure the performance of a routine governmental action by a foreign
official is exempt from the act's coverage.
18. Everyone, including government officials we met, still calls the city
by its former name.
562 INTERNATIONAL LAW AND POLITICS [Vol. 29:555
ports often mirror the local and national character, recalling the
heavily garrisoned Seoul Kimpo Airport, the unconscious
multiculturalism of Heathrow, and the bedlam of Kennedy
International. Tan Son Nhut smacked of a Stalinist dictatorship. It
was unearthly quiet. Immigration officers sat beneath signs warning
travelers not to leave their money folded inside their passports or
travel papers. Clearing immigration required the production of
exactly one more photo than anyone had told us to bring.
Conveniently, there was a woman with an old Polaroid who took
pictures for $2 in U.S. currency. We watched with curiosity as
customs officers carefully inspected passengers' books and audio
tapes and viewed video tapes on a miniature VCR. Vietnamese
returning from overseas were targeted more regularly than foreign
tourists. Despite the subversive implications of the U.S.
Constitution for a Stalinist state, our law books ended up attracting
no special attention.
It was ten o'clock p.m. when we left the customs area into a
swarm of people yelling to friends and of livery drivers trying to
attract customers. We were greeted by our hosts, two men and a
woman, and loaded our things into their van. Even at this hour,
utter chaos ruled Saigon's streets. There were no traffic lanes, no
visible demarcations, and no double lanes that divided one side of
the street from oncoming traffic. Horns reigned over brakes. Our
driver artfully snaked through traffic, oblivious to the swarms of
bicycles and motorbikes that engulfed us at every traffic stop.
Young couples riding double on motorbikes shouted to friends at
each intersection.
Our hotel turned out to be a no-frills affair. The bedroom was
sparse and clean, but completely lacking in the usual amenities
most non-backpackers over thirty would prefer. We later moved to
a more centrally located hotel, the Rex, known before the fall of
Saigon as a charming, colonial-era hotel frequented by Americans
for its roof-top pool and bar. The hotel was attractively appointed
in a style combining traditional regional Vietnamese decors and
provided a level of service matching if not surpassing the best
luxury hotels of the West.
B. Trip to the Mekong Delta
One of our two male hosts picked us up at five o'clock the
next morning to take us on a tour of Long Xuyen, a province in the
Mekong Delta, where Professor Cao's uncle happened
1997] LAW REFORM IN VIETNAM 563
to live. Our host had brought along his high-school-age daughter,
who was eager to practice her conversational English with us. The
father immediately invited us for lunch at his house. In fact, his
wife, he informed us, was already in the process of preparing a
traditional Vietnamese meal. Along the way, we managed to snap a
few photographs of the beautiful countryside. We were particularly
taken by scenes of children tending rice fields on the backs of water
buffaloes. Our host, however, evidently considered lunch to be the
day's main event, and continually hurried us along.
During the ride, our host unexpectedly asked us if we would
aid him in his attempt to leave Vietnam. Specifically, he asked us to
write letters in support of his application via the Orderly Departure
Program—a program intended to lessen the flow of refugees out of
the country. We listened with interest to his personal history,
including his decision not to accept a helicopter ride out of Vietnam
on the day of Saigon's fall, his time spent in a Communist re-
education camp, and the discrimination suffered by his family.
After we arrived at his house in Long Xuyen, our host
telephoned Professor Cao's uncle, who lived nearby, and invited
him to lunch. The uncle had been a member of the National
Liberation Front (Vietcong), and had remained in Vietnam after the
fall of Saigon. Having dedicated his life to the revolutionary cause,
he had been rewarded with a high-level government post at the
province level. The uncle, now retired, arrived for lunch on a
Honda motorcycle, sporting a Reebok cap.
Lunch turned out to be a sumptuous feast of caramelized pork,
tamarind-laced fish soup, and an assortment of sautéed vegetables.
The uncle inquired about his family in the United States,
particularly about his three children. His son had once been a
member of the elite South Vietnamese airborne troops. From his
questions, however, it was clear that he was far more interested in
learning how to attract foreign investment to the province of Long
Xuyen.
Our journey into the heartland of the country revealed that
Vietnam is indeed a very poor country. Viewing only the relatively
wealthy Saigon, a visitor could easily forget that the average annual
per capita income is only a few hundred dollars, and often much
less in the countryside. We also wit-
564 INTERNATIONAL LAW AND POLITICS [Vol. 29:555
nessed firsthand the need for modernization projects that focus on
rural development. In Vietnam, where the majority of the
population inhabits the countryside, the rural provinces strongly
resist the influence of the central authorities—a phenomenon
summed up by the adage "Even the emperor's law stops at the
village gate." The central government's historical, albeit reluctant,
acknowledgment that the formal law of the central government
must defer to the informal law of the village has led to an over-
concentration of political and economic power in metropolitan
areas and to the underdevelopment of the countryside. This skewed
development and dichotomy of power forms the operational code
of Vietnam, a reality frequently overlooked by Western law
reformers and foreign investors.
Investors who have relied on the published laws and
regulations to obtain licenses from central government agencies for
countryside construction projects have tasted firsthand the strong
will of the provincial authorities. In many cases, no license,
approval, or document from the central authorities will have the
intended legal effect. We learned of one hapless investor who
constructed a tall office building pursuant to a building permit
issued by a Saigon agency, only to be ordered by the local
provincial office to tear down the top floors. The building, claimed
the local government officials, cast an unacceptably dark shadow
on the provincial office, sowing bad luck for its occupants.
III. STILL TWO COUNTRIES: LAW SCHOOLS IN VIETNAM
In 1954, Vietnam was divided politically into North Vietnam
and South Vietnam pursuant to the terms of the Geneva Accords.
What many people do not realize is that prior to that time, Vietnam
had in fact existed as two independent countries for two centuries.
19
Although Vietnamese nationalists are opposed to thinking of a
divided Vietnam, our experiences at the law schools in Saigon and
Hanoi clearly reflected a lingering sense of one geography, two
countries. In the South, there was an obvious need for legal and
other infrastructure to accommodate the flood for foreign
investment. By contrast, our impression from discussions with
faculty at Hanoi Law School
19.SeeJOSEPH BUTTINGER, VIETNAM: A POLITICAL
HISTORY (1968).
1997] LAW REFORM IN VIETNAM 565
indicated that in the North, law reform takes a backseat to the
desperate quest for foreign investment.
A. Saigon Law School
As it turned out, we would not be lecturing at the law school
in Saigon, but only meeting informally with its faculty. We arrived
at the school mid-morning and were escorted by our hosts past a
seemingly endless row of parked bicycles and motorbikes to a
conference room adjacent to the Dean's office. The Dean lead us
into her office, which was already occupied by several faculty
members. The Dean was a woman in her thirties who had spent
nearly a decade studying law in Moscow, only to return home and
find those skills no longer in high demand. Her ability to serve
effectively as Dean in these changing times, however, suggested
that she possessed great flexibility.
By way of introduction, the Dean explained that her law
faculty was run by the Ministry of Education and that it was in the
process of merging with the other law faculty in Saigon, which was
run by the Ministry of Justice. The combined institution would be
run by the latter ministry, and the combined deanship would be
assumed by the other institute's present dean, a more senior man
with ties to the Ministry of Justice.
As we entered the room with the rest of the faculty, Professor
Cao encountered a Saigon law professor she had met six years
earlier in New York City. This professor—whose identity we will
not divulge for his sake—had earned an LL.M. from an American
law school that sufficiently tainted him to warrant a sentence of
"indefinite solitary confinement" lasting fifteen years. Ironically, he
had willingly returned to Vietnam only a few months before the end
of the war on the mistaken belief that his lack of political
involvement would pose no danger to him. In the course of our
conversation, he told us, "You must understand that in Vietnam,
law is the way that the state exercises its power." Professor Waller
replied that a majority of American law professors would probably
agree with that statement, realizing only later the trivial sense in
which such terms are bandied about in the United States, and the
true impact of the Saigon professor's words.
We gave an overview of U.S. constitutional principles, the
litigation system, and the criminal justice system. The Saigon
566 INTERNATIONAL LAW AND POLITICS [Vol. 29:555
faculty, in turn, explained their school's evolving law curriculum,
which was attracting an increasing number of Saigon
undergraduates. The school had many more required courses than
American law schools, some being general studies courses
unrelated to the law, others being the standard Marxist-Leninist
material that has vanished from the curricula of most socialist
countries since the fall of the Soviet Union.
We learned that the organized bar in Vietnam is tiny. An
entire generation of adult Vietnamese grew up without any formal
legal education. For years, those who practiced law during or
before the war were often subjected to forced labor, prison camps,
and banishment. In the South, only a few lawyers remain who
practiced before the end of the war. Most are now elderly and
retired, and in no position to influence the practice of law, let alone
its reform. Practicing senior attorneys are even more scarce in the
North. While the population of young lawyers who have received
their degrees since 1990 is increasing, most lack the experience or
stature to lead in their profession.
The growth of the bar was also limited by stringent
examination and practice rules, which required internships under
the direction of existing bar members. Some members refused or
were unable to take on new attorneys, effectively ensuring that the
number of new lawyers entering the profession each year was
reduced to a trickle. As a result, more than half of Vietnam's judges
and over sixty percent of its prosecutors have had no formal legal
training. Until about five years ago, these jobs were mainly
bureaucratic assignments in the Ministry of Justice.
B. Hanoi Law Schools
The National University in Hanoi unexpectedly canceled our
first day of lectures. When we arrived with our colleague, Arthur
Pinto, at the campus, we were promptly led into the office of the
Vice-Chancellor of the International School. The Vice-Chancellor
greeted us warmly and offered us chilled bottled water and
mangoes. After exchanging pleasantries, the electricity suddenly
failed. During our conversation, the power went out two or three
more times. With each blackout, a student assistant scurried to the
window to let light in through the shutters. All the classrooms, we
were told,
1997] LAW REFORM IN WETNAM 567
opened onto the quadrangle so that the law classes could continue
without power.
The university matriculated approximately eleven thousand
students, of whom forty-two hundred were part of the law faculty.
There were twenty-five full-time legal academic staff, with 150
part-time instructors. Similar to the European model, the first three
semesters of the students' degree were dedicated to general studies.
Required subjects included Political Economy, Introduction to
Sociology, Introduction to State and Law, Introduction to Political
Science, Introduction to Population Issues, Philosophy, Practical
Vietnamese, Introduction to Logic, Mathematics, and Informatics
(Computer Science). Optional courses included a wide variety of
social and natural sciences.
The next five semesters focused on legal studies. To reach this
second stage, students had to pass a comprehensive examination
which tests their knowledge of philosophy, theory issues on state
and law, and either English or French. During this second stage,
students are required to take courses in Communist Science,
History of the Vietnamese Communist Party, Practicing Army, and
a foreign language. We were informed that English has rapidly
replaced Russian as the preferred foreign language.
The school offered twenty-four basic legal subjects, some of
which bore titles familiar to American law students.
20
There were
also twenty additional specialized courses organized under
headings for State Management, Justice, Economic Civil, and
International Law. Finally the students were required to undertake
five months of practical training at the end of their third year and
again at the end of their final year.
Our arrival on campus had evidently stirred up considerable
confusion. The Dean of the law faculty was willing to meet with us,
but apparently no one in the law faculty nor any of the students had
been informed of our visit. The Dean's office
20. E.g., Theory Issues on State & Law, History of State & Law in the
World, History of State and Law in Vietnam, Constitutional Law,
Administrative Law, Criminal Law (I & II), Civil Law (I & II), Economic
Law, Public International Law, Private International Law, Marriage &
Family Law, Labor Law, Criminal Procedure, Civil Procedure,
Constitutional Law of Foreign Countries, Finance and Banking Law,
History of Political Theories, Theory & Skill of Drafting Legal
Documents, Social Security Law, Comparative Law, Environmental Law,
andLandLaw.
568 INTERNATIONAL LAW AND POLITICS [Vol. 29:555
was a large, sparsely furnished room with a desk, a conference
table, ten chairs, and a bookcase containing what we were told was
the school's entire collection of foreign language materials—
perhaps twenty-five treatises of English and American origin and a
couple of French and German volumes.
We were soon joined by some members of the faculty who
happened to be free at that time. One was an elderly man whose
legal career clearly predated the unification of 1975 (and possibly
even the rise of Ho Chi Minh in the 1940s) . A second was an
assistant professor in his twenties; a third was a woman who
appeared to be in her early thirties; and the fourth a slightly older
man with a mustache, whose position remained unclear.
We conversed mainly with the younger faculty members,
whose business law interests and English skills made conversation
easier. The professor in his twenties informed us that he taught
banking law, a subject which he claimed existed as of yet "only in
the classroom" in Vietnam. He grilled us on a variety of issues
relating to business organization and joint ventures in a manner
which led us to suspect that he was working on some very specific
foreign investment transaction in his other capacity as a practitioner
with one of the emerging Vietnamese law firms.
The woman appeared the most Western in terms of dress,
mannerisms, comfort with English, and knowledge of legal topics.
Her areas of expertise were public international law and
international trade. She was the only member of the faculty to have
spent time in the West, having studied for a year at the University
of London. The man with the mustache never uttered a word,
leading us to surmise that his role may have been more political
than academic.
A lecture to the students was arranged for the following day.
Ignoring our prepared lecture plan, the Dean requested an
afternoon lecture on corporations and business organizations. One
of the professors later apologized, explaining that the other subjects
in our planned lecture were simply "too political."
1. Lecture at National University, Hanoi School of Law
When Professors Pinto and Cao returned the following day to
present the lecture, the students had been gathered and
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