NOTARIZATION OF CONTRACTS AND TRANSACTIONS INVOLVING FOREIGN ELEMENTS ACCORDING TO CURRENT LAW (UPDATED 2024

NOTARIZATION OF CONTRACTS AND TRANSACTIONS INVOLVING FOREIGN ELEMENTS ACCORDING TO CURRENT LAW (UPDATED 2024–2025)

NOTARIZING CONTRACTS AND TRANSACTIONS WITH FOREIGN ELEMENTS UNDER CURRENT LAW (UPDATED 2024–2025)

In the context of increasingly expanding international civil and commercial exchanges, contracts and transactions with foreign elements are becoming more and more common: real estate transfers, donations, authorizations, capital contributions, cross-border sales of goods, property transactions of foreign individuals in Vietnam, etc.
This is a complex and sensitive field, subject to simultaneous regulation by the Civil Code, Notarization Law, Commercial Law, Investment Law, Housing Law, international treaties and implementing guidelines. Therefore, notarizing these contracts requires a strict appraisal process and understanding of multi-system laws.

I. Concept and basis for determining “transactions with foreign elements”
1. Main legal basis
2015 Civil Code (Chapter XXV – Article 663 to Article 671).
2024 Notary Law and guiding documents.
Commercial Law (VBHN 113/VBHN-VPQH).
2023 Housing Law, 2024 Land Law, Investment Law, Nationality Law, international treaties.
2. Signs of determining transactions with foreign elements
According to Article 663 of the 2015 Civil Code, a civil relationship is considered “with foreign elements” if it falls into one of the following cases:
At least one party is a foreign individual, legal entity or a Vietnamese person residing abroad.
The establishment, change, implementation or termination of the relationship occurs abroad.
The assets of the transaction are located abroad.
This is an important legal basis for determining notarization authority and the governing law.

II. Right to choose the applicable law in contracts with foreign elements
1. Right to freely choose the law - basic principle
Article 683 of the Civil Code: The parties are free to agree on the choice of law applicable to the contract.
Clause 2, Article 5 of the Commercial Law: Allows the application of foreign law or international commercial practices in international commercial transactions.
Article 5 of the 2015 Maritime Code, Article 4 of the Investment Law: continues to recognize the right to choose the law.
=> This is a fundamental principle in international commercial transactions.
2. Limits of the choice of law
The parties are not allowed to choose the law if:
Contrary to the basic principles of Vietnamese law (Article 670 of the Civil Code).
Not in accordance with international treaties to which Vietnam is a member.
Choosing a law that does not regulate rights and obligations but instead chooses a conflicting law.

III. Notarized documents for contracts and transactions involving foreign elements
According to the Notary Law 2024 and sub-law documents:
1. For foreign individuals
Documents include:
(1) Identity documents
Valid passport with legal entry stamp.
(2) Documents proving marital status - property
Marriage/single certificate.
Marriage property agreement/separate property.
Divorce judgment/property division record.
Pre-marital property confirmation document (if necessary).
(3) Documents determining property ownership
Red book/pink book.
Apartment sale and purchase contract (if not yet issued).
Vehicle registration and other assets.
2. For foreign organizations
According to the Notary Law 2024 and sub-law documents:
(1) Legal documents on legal status
Foreign business registration certificate.
Charter/Decision on appointment of representative.
Minutes of meeting/Board of Directors on the decision on the transaction.
Legal authorization document for the signatory.
(2) Identity documents of the representative
Valid passport + entry stamp.
(3) Documents on related assets
Ownership documents corresponding to the type of transaction.
3. Interpreter in notarization with foreign elements
Article 6 of the 2024 Notarization Law stipulates: Vietnamese is the mandatory language used in notarization. Therefore:
If the person requesting notarization is not fluent in Vietnamese, they must have an interpreter.
The interpreter must:
Be 18 years of age or older.
Have full civil act capacity.
Be fluent in Vietnamese and the language of the person requesting notarization.
Be responsible before the law for the translation content.

IV. Procedures for notarizing contracts and transactions involving foreign elements
According to Article 40 of the 2024 Notary Law:
1. Identify and check legal capacity
Check identity documents, marital status.
Check representative status, authority according to the law of the host country (for organizations).
Check entry stamp, duration of stay.
2. Assess the legality of assets
Legal status of real estate/vehicle/shares.
Check ownership restrictions for foreigners (like the 2023 Housing Law).
3. Explain rights and obligations
The notary must explain clearly in Vietnamese.
In case of an interpreter, the full name of the translator must be clearly stated in the contract.
4. Sign and seal
The parties sign in front of the notary.
Documents are archived in accordance with the provisions of the Notary Law 2024.

V. Competence to resolve disputes in transactions involving foreign elements
1. Commercial arbitration
According to Article 5 of the Commercial Arbitration Law 2010:
Disputes are resolved by arbitration if there is an arbitration agreement.
This is the preferred option in international contracts.
2. Vietnamese Courts
According to the 2015 Civil Procedure Code (Articles 35–40):
The court has jurisdiction when the dispute involves property in Vietnam or the defendant resides/organizes in Vietnam.

VI. Are Vietnamese diplomatic missions abroad allowed to notarize real estate transactions in Vietnam?
Article 73 of the 2024 Law on Notarization stipulates the notarization of representative missions of the Socialist Republic of Vietnam abroad as follows:
1. Diplomatic missions and consular missions of the Socialist Republic of Vietnam abroad are allowed to notarize wills, documents of refusal to receive inheritance, types of authorization documents and other transactions according to the provisions of this Law and the laws on consular affairs and diplomacy, except for contracts for sale, conversion, assignment, donation, lease, mortgage, and capital contribution of real estate in Vietnam.
Therefore, diplomatic missions are not allowed to notarize transactions related to real estate in Vietnam such as: Purchase, sale, assignment, conversion, donation, mortgage, and capital contribution of real estate.
They are only allowed to notarize: Wills, documents refusing to receive inheritance, documents of authorization, other contracts not related to real estate in Vietnam.

VII. Some important notes when notarizing transactions with foreign elements
Notaries must strictly check the validity of foreign documents:
Is there consular legalization?
Is there notarized translation?
Is there an excess of authority?
Is there compliance with international treaties?
Transactions related to real estate need to check the ownership conditions of foreigners according to the Housing Law 2023, Land Law 2024.
The applicable law, contract language, and dispute resolution mechanism should be clearly stated to avoid legal conflicts.

Ths. Ls Nguyen Hoang Long

NOTARIZATION OF CONTRACTS AND TRANSACTIONS INVOLVING FOREIGN ELEMENTS ACCORDING TO CURRENT LAW (UPDATED 2024–2025)

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