Transplanted company law: an ideological and cultural analysis of market-entry in Vietnam

摘要

Following doi moi (renovation) market reforms in 1986, the Vietnamese government urgently required commercial laws capable of regulating the rapidly emerging private sector. Along with contract and property laws, lawmakers considered company law essential for a market-based legal framework. Since reforms could not wait the decades required to distil normative standards from local commercial practices, lawmakers turned to Western laws for inspiration. Primarily drawing on French sources, the National Assembly enacted Vietnam's first modern Company Law (CL) in 1990. Rather than assisting private capital, research discussed in this article shows that over the intervening years. entrepreneurs infrequently structured their activities around corporate rules. Imported corporate rules overlaid, but rarely informed official decision-making, much less commercial habits and practices. These observations raise serious questions about the viability of law reform through legal borrowing. Can laws arising from, and serving the sociopolitical needs of one society induce similar effects in other societies? If supposedly universal legal norms are actually culturally and historically determined, is legal harmonisation and convergence feasible, even desirable? Although pressure to harmonise corporate law has undoubtedly increased since the East Asia Economic Crisis, for decades foreign investors and multi-lateral associations such as ASEAN, APEC and the WTO agitated for legal change in East Asia. Rather than addressing the mysterious processes conditioning transplantation viability, most legal reform programs implicitly assumed that core legal concepts are shared among the worlds legal systems. Corporate reforms consequently focus on legal rules and doctrines, presupposing that cross-cultural legal borrowing constitutes a series of technical adjustments between equivalent legal systems. Comparative law cautions that in comparing one legal system with another, it is vital to know 'which kinds of similarities and differences are 'paradigmatical' to legal systems and which ones are only casual, and of secondary importance'. Narrow technical analysis is avoided in this article, by evaluating the transplantation of company law to Vietnam from broad ideological, cultural and political economy perspectives. A conceptually plausible explanation for cross-cultural legal borrowing has been synthesised in Part II from legal transplantation theory. Part III locates the history of corporate borrowing in Vietnam within a political and economic context. Parts IV to VI apply the working postulates developed in Part II to evaluate the Vietnamese ideological, institutional and societal support for transplanted corporate laws. Rather than exhaustively considering the reception of every company law principle, transplant viability is assessed by contrasting imported Western market-entry principles with Vietnamese precepts and practices. The article concludes by suggesting that transplant viability varies among different social layers or groups, primarily according to their ideological, cultural and economic capacity to benefit from borrowed law-a hypothesis that gives this discussion relevance beyond the borders of Vietnam.