Account freezing, a pivotal injunctive relief measure, stands as a cornerstone in the landscape of dispute resolution under Vietnamese legal frameworks. Commonly denoted as “account freezing”, this legal recourse empowers parties to seek judicious intervention, safeguard assets, and fortify the expeditious resolution of cases, concurrently facilitating the enforcement of judgments.
1. Basis for Applying the Measure
The measure of account freezing is applied if, during the process of resolving a case, there is evidence indicating that the person with obligations has an account at a bank, another credit institution, or the state treasury, and the application of this measure is necessary to ensure the resolution of the case or the enforcement of the judgment. [1]
2. Conditions for Implementation
2.1. Security Deposit
Implementation of the account freezing measure necessitates the submission of a Security Deposit. This deposit, equivalent to potential losses [2] and must be deposited into a reserve account at the bank, subject to a timeframe determined by the court. [3] After the termination of the injunctive relief measure, the court will refund the Security Deposit to the requesting party, except in cases where the court deems the request unfounded, causing damages, mandating the requesting party to compensate the actual losses incurred. [4]
Account freezing is necessary to ensure the resolution of the case or the enforcement of the judgment.
2.2. Proving the Value of the Account
The party requesting the application of the injunctive relief measure is obligated to prove the value of the account being frozen, and at the same time, they must take responsibility for the truthfulness and accuracy of the documents related to determining the value of the account being frozen. [5] This regulation imposes the obligation of the requesting party to determine the amount (i.e., the account balance) in the bank account of the party whose account is sought to be frozen.
3. Procedures for Requesting Account Freezing
The requesting party, following procedural decorum, submits a written request to the competent court accompanied by compelling evidence substantiating the necessity of account freezing. Within a timeframe of three working days from the receipt of the request, a Judge issues a prompt decision contingent on the completion of the requisite Security Deposit. Rejected requests are accompanied by a comprehensive written explanation. [6]
4. Cases Where the Measure is Inapplicable
The account freezing measure is inapplicable in scenarios where its imposition would lead to the cessation of business operations [7] or impede the fulfillment of obligations under a credit contract. [8]
5. Challenges in applying the Measure
5.1. No Commercial Presence in Vietnam
Foreign enterprises encountering a lack of commercial presence in Vietnam face substantial impediments, precluding them from opening a bank account for the Security Deposit. [9] The court’s rejection of guarantee documents from foreign entities underlines the imperative for a local commercial presence.
5.2. Proving the Value of the Account
The practical challenges associated with proving the value of a frozen account stem from the confidentiality principles governing bank account information. Banks, adhering to the Law on Credit Institutions 2010 [10] disclose such information solely upon request by competent authorities in adherence to legal provisions.
6. Overcoming challenges – Insight from VCI Legal’s experiences
In practical scenarios, the requesting party may furnish the court with an explanation detailing their exhaustive efforts in collecting information from the bank. The requisite proof includes a written refusal from the bank or evidence attesting to the requesting party’s unsuccessful attempts. VCI Legal represents clients across various legal domains, managing cases encompassing commercial, corporate, international trade, construction, intellectual property, and labor disputes within Vietnam’s courts and arbitration forums. Our litigation team, comprising aggressive lawyers specializing in business and civil litigation, has consistently achieved victories at courts and arbitration centers. If you encounter any challenges related to dispute resolution in Vietnam, including the request for an account freezing measure, we encourage you to contact the dynamic Dispute Resolution Team at VCI Legal for professional and effective legal assistance.
For further information, please contact:
Kent Wong, Partner, VCI Legal
kentwong@vci-legal.com
References:
[1] Article 124 of the Civil Procedure Code No.: 92/2015/QH132015 dated November 25, 2015 (“CPC 2015”)
[2] Clause 1, Article 136 CPC 2015
[3] Clause 2, Article 136 CPC 2015
[4] Clause 1, Article 113 CPC 2015
[5] Clause 2, Article 12 Resolution No. 02/2020/NQ-HDTP dated September 24, 2020 on guidelines for certain regulations on injunctive relief measures of the Civil Procedure Code (“Resolution 02/2020/NQ-HDTP”)
[6] Article 133 CPC 2015
[7] Clause 1, Article 4 Resolution 02/2020/NQ-HDTP
[8] Clause 3, Article 4 Resolution 02/2020/NQ-HDTP
[9] Pursuant to Clause 2, Article 11 Circular 23/2014/TT-NHNN, organizations allowed to open payment accounts at banks and foreign bank branches in Vietnam are “entities that are legally established, operate in accordance with Vietnam laws and regulations, including: entities who are legal entities, private companies, household business and other entities shall be permitted to open payment accounts at banks, foreign bank branches in accordance with applicable laws and regulations”.
[10] Law on Credit Institutions No. 47/2010/QH12 dated June 16, 2010.
