Transplanting commercial law reform : developing a 'rule of law' in Vietnam

Abstract

Against a backdrop of legal globalisation, socialist transforming states such as Vietnam are reconfiguring their legal systems to engineer rapid economic development. Like Japan during the nineteenth century, Vietnam is trying to open up, industrialise and become a world force-in short to catch up with its regional neighbours and the West. Rather than waiting decades to distil commercial law from internal practices, it has decided to develop a legal framework from imported Western commercial laws. Most theoretical discussions about the transfer of laws among countries concern North American and European experiences with harmonising common and civil law systems~ These debates focus on problems arising from political economies and jurisprudence that seem far removed from the issues facing law reformers in Vietnam. This study argues that conventional explanations for the viability of some legal transfers provide misleading criteria for understanding legal transfers in Vietnam. What is needed is a theoretical framework in which to place and analyse how legal transfers interact with legal and social systems in Vietnam. This study attempts to make sense of Vietnam's extraordinary history of commercial legal development by devising a set of working postulates that bring the analysis closer to the processes shaping imported laws. It then applies these postulates to a series of case studies to develop a model that explains how legal transplants are adapted and implemented in Vietnam (and other socialist transforming East Asian states). The first case study assesses ideological resistance to legal transfers and argues that laws can move into incompatible ideological terrain provided they are not actively blocked by the dominant ideology. This is followed by a series of case studies that show how legal transplants are sensitive to the ways legislators, bureaucrats and judges use state power to make and enforce law. The attitudes and processes informing lawmakers and enforcers profoundly influence the meanings given to legal transplants. The final case study demonstrates how non-state pressure groups influence the selection and implementation of foreign laws. The development of a new interpretive model has been greatly assisted by discourse analysis, which suggests that dialogical exchanges between lawmakers and pressure groups give meaning to imported law. This analytical approach avoids the limitations associated with conventional statecentred analysis by directing attention towards the regulatory conversations that give meaning to legal transfers. It asks who conducts these conversations, what are they about and how do they advance the regulatory objectives of key players? It suggests that the transfer of laws and ideas have similar effects, because regulatory discourse collapses distinctions between legal prescription and legal description. Further, it allows us to assess what types of conversations are most likely to generate preference convergence and the adoption of imported legal ideas. Discourse analysis also acknowledges the role played by human agency and reminds us that the story of legal borrowing is inextricably bound up with legal development strategies. This study has revealed the complexity of law reforms based on imported laws. There are simply too many processes and perspectives for one unified theory. The interpretive model proposed in this study is intended to complement and refocus, rather than supplant other theoretical approaches through which legal transfers can be observed. It accounts for the main factors that shape the meanings given to imported laws: dialogical negotiations, effective communication, interpretive communities, strategic agendas and power relationships. As such it can guide researchers towards the processes and exchanges that shape and adapt legal imports into socialist transforming East Asia, especially Vietnam.

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