Typically, lawyers are requested to render formal written opinions by their clients or by third parties dealing with their clients. A third party may request the opinion directly or by way of a contractual or regulatory requirement.
When investment dispute between a foreign investor and the local government comes into play (especially in public-private partnership agreements), both parties have usually recourse to the dispute settlement body. It would be costly and time-consuming for the parties seeking for their own victory. Consulting with third party’s legal opinion can be a way-out to avoid a legal battle. To keep up with a promise to boost and make investment climate much more transparent and protective against foreign investors, the Government set out unified and comprehensive procedures for seeking third-party legal opinion before the disputing party end up bringing a case to the dispute settlement body. Under Decree 51/2015/ND-CP dated 26 May 2015, the opinion giver is the Ministry of Justice and opinion recipient is a party to public-private partnership agreements.
Overview of Legal Opinion
Lawyers are requested to render formal written opinions by their clients or by third parties dealing with their clients. A third party may request the opinion directly or by way of a contractual or regulatory requirement; a typical third party is a present or prospective investor in, lender to, purchaser of or licensee from a client; a client’s accountant or outside counsel in another jurisdiction; or a government agency.
Legal opinions may be categorized in two ways: (1) by whether they are addressed to the opining lawyer’s client (to whom greater duties may be owed) or to a third party; and (2) by their subject matter.
The content of the legal opinion is not to address factual situations and issues unrelated to the laws of Vietnam. The content must have the following:
1. Factual situation and assumptions;
2. Legal standing of a Vietnamese party in the course of signing and executing contracts;
3. Legal capacity to enter into and sign a contract;
4. Legal compliance on negotiation, signature and execution of a contract;
5. Purpose use of the legal opinion and disclosing the legal opinion to a third party; and
6. Other contents subject to specific cases and but in consistency with principles of giving the legal opinion.
The legal opinion can be made in Vietnamese or English at the discretion of the opinion recipient.
Legal opinion will be granted to the opinion recipient in 30 days from the date the documents are sufficient. An extension of 30 days can be accepted if the legal opinion sought is sophisticated.
The opinion recipient is only allowed to make use of the legal opinion in the transaction to which the legal opinion is referred. The opinion recipient may disclose the legal opinion to a third party subject to the opinion giver’s approval.
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