The principles and practices of contract interpretation in us law – an implication for dispute settlement in vietnam

MINISTRY OF EDUCATION & TRAINING HO CHI MINH CITY UNIVERSITY OF LAW  -THE MANAGING BOARD OF SPECIAL TRAINING PROGRAMS NGUYỄN THẾ VŨ THE PRINCIPLES AND PRACTICES OF CONTRACT INTERPRETATION IN US LAW – AN IMPLICATION FOR DISPUTE SETTLEMENT IN VIETNAM BACHELOR THESIS International Law Faculty Academic year: 2013-2017 HO CHI MINH CITY 2017 MINISTRY OF EDUCATION & TRAINING HO CHI MINH CITY UNIVERSITY OF LAW  -THE MANAGING BOARD OF SPECIAL TRAINING PROGRAMS NGUYỄN THẾ VŨ THE PRINCIPLES AND PRACTICES OF CONTRACT INTERPRETATION IN US LAW – AN IMPLICATION FOR DISPUTE SETTLEMENT IN VIETNAM BACHELOR THESIS International Law Faculty Academic year: 2013-2017 Supervisor Dr ĐỖ THỊ MAI HẠNH Student NGUYỄN THẾ VŨ Student ID 1353801011283 Class CLC38B HO CHI MINH CITY 2017 DECLARATION I hereby declare that the thesis “The principles and practices of contract interpretation in US law – An implication for dispute settlement in Vietnam” is my own study under the supervisor’s guidance and to the best of my knowledge, it contains no material previously published or written by another person, nor material which to a substantial extent has been excepted for the award of any other degree or diploma at any educational institution, except where due acknowledgement is made in the thesis All of the information other than my idea to be used or quoted has been acknowledged by means of complete references I would bear full responsibility for my protest I warrant that this authorization does not, to the best of my belief, infringe the rights of any third party July 18th, 2017 DEDICATED TO The memory of my Mother (1959-2008) A strong and gentle soul who brought me to planet earth and endured many hardships to give me a better life My Family For their endless love, support and encouragement My Senior Supervisor – Dr Do Thi Mai Hanh For her unwavering support and mentorship throughout this thesis My Dearest Friend – Dang Hoang Nhan For his advice, his patience, and his faith Table of Contents INTRODUCTION CHAPTER OVERVIEW OF CONTRACT INTERPRETATION IN US LAW 11 1.1 Dissection of contract interpretation 11 1.1.1 Definition and the cardinal goal of contract interpretation 11 1.1.2 A historical brief of intention-finding progression in US law 14 1.1.2.1 Subjectivist theory of interpretative regime 14 1.1.2.2 Extreme objectivist theory of interpretative regime 15 1.1.2.3 Modified objectivist theory of interpretative regime 17 1.1.3 1.2 Definition of contract interpretation under Vietnamese law perspective 19 Dissection of ambiguity definition 21 1.3 Textualism and Contextualism: The two most contentious theories in US interpretive regime 27 1.3.1 A theoretical perspective of textualism 27 1.3.1.1 Anatomy of the plain meaning rule – A formalist doctrine 28 1.3.1.2 The justification for textualism 29 1.3.2 A theoretical perspective of contextualism 31 1.3.2.1 Anatomy of the extrinsic evidence rule – An anti-formalist doctrine 32 1.3.2.2 The justification for contextualism 34 CONCLUSION OF CHAPTER 36 CHAPTER CONTRACT INTERPRETATION UNDER THE US PRECEDENTIAL PERSPECTIVE – AN IMPLICATION FOR VIETNAM REGIME OF CONTRACTUAL DISPUTE RESOLUTION 37 2.1 The plain meaning rule via textualist courts’ judicial precedents 37 2.2 The extrinsic evidence rule via contextualist courts’ judicial precedents 42 2.2.1 The “reasonably susceptible” rule (also labeled Pacific Gas rule) 42 2.2.2 The “no limitations” rule 45 2.3 Reconciling textualism with contextualism by distinguishing objective evidence from subjective evidence 47 2.3.1 Reconciliation between textualism and contextualism in judicial precedent 48 i 2.3.2 Dichotomy between objective and subjective extrinsic evidence - An aid to reconciliation between textualism and contextualism 49 2.4 Practice of contract interpretation in Vietnam and suggestions for improvement 52 2.4.1 Interpretative approach that Vietnamese law and judicial practices follow 52 2.4.2 Recommended policy in utilizing objective extrinsic evidence and choosing the most appropriate intention attached to the meaning of contractual language 56 CONCLUSION OF CHAPTER 61 CONCLUSION 63 BIBLIOGRAPHY 65 ii INTRODUCTION Rationale for the research Language as a mean for expression of ideas utterly plays a material role in constructing a written contract.1 When using language in a contract, parties are giving them the function to fix rules that will govern their contractual relations.2 Language as a system of symbols, however, “has no arbitrary and fixed meaning like a symbol of algebra or chemistry”.3 The language is thus not always being precisely used to fully manifest the idea which the contracting parties are trying to convey, or is attached materially different meanings.4 The contractual language in such a case is therefore inevitably placing room for doubt or different meanings and the role of contract interpretation as a tool to discern the true meaning of contract is thereby asserted The anatomy above sheds light on the fact that the demand for contract interpretation can arise in any contract Without the cohesive body of rules of contract interpretation, contracts may produce uncertainty and unenforceability,5 which are detrimental to the mutual accomplishment of contracting parties The role of contract interpretation has been also significantly recognized by both scholarly writings and judicial practices in Vietnam.6 As to legislations, the Civil Code 20157 of Vietnam sets forth a separate institution governing contract Steven J Burton (2006), Principles of Contract Law, Third Edition, Thomson West Publisher, p.384 Hon Randall H Warner (2010), All Mixed Up About Contract: When Is Contract Interpretation A Legal Question And When Is It A Fact Question?, Virginia Law & Business Review, Volume 5, Number 1, p.101 Justice Traynor in Pacific Gas & Electric v G.W Thomas Drayage & Rigging Co, 69 Cal.2d 33, 36 (Cal 1968) See full text at: https://casetext.com/case/pacific-gas-e-co-v-gw-thomas-drayage-etc-co (Accessed on 11 July, 2017) Charles L Knapp and Nathan M Crystal (1987), Problems in Contract Law – Cases and Materials, Second Edition, Little, Brown & Company (Canada) Limited, p.331 Juliet P Kostritsky, Plain Meaning vs Broad Interpretation: How the Risk of Opportunism Defeats a Unitary Default Rule For Interpretation, Kentucky Law Journal, Volume 96, p.43 Nguyen Anh Thu (2014), De xuat sua doi, bo sung qui dinh lien quan den nguyen tac thien chi Bo luat dan su Viet Nam nam 2005, Luat Hoc Journal (of Ha Noi National University), Volume 30, Number 3, p.62; Do Van Dai (2014), Luat Hop Dong Viet Nam – Ban an va Binh luan ban an (Volume 2), Chinh Tri Quoc Gia Publisher, pp.194-216; Ha Thi Mai Hien and Ha Thi Thuy (2015), Ban ve Che dinh giai thich hop dong du thao Bo luat dan su (sua doi), Nha nuoc va Phap luat Journal, Volume 3, p.42 The Civil Code 2015 passed by the 13th National Assembly of the Socialist Republic of Vietnam came into force from January 1, 2017 interpretation, Article 404 with noteworthy amendments to Article 409 of the Civil Code 2005,8 denoting the crucial importance of contract interpretation in Vietnam Unfortunately, the study of contract interpretation in Vietnam has not drawn serious attention and gained as much popularity as it should from legal researchers For a long time, consequently, legal practitioners have underestimated this vital institution in contractual litigation Furthermore, lacking formal training and comprehensive knowledge of contract interpretation makes transactional lawyers, whose job is mainly focusing on drafting contract, solely concern how to get the deal done and thus unable to accomplish the highest qualities of drafting, which are first to avoid disputes and second to best protect their clients in contract litigation if things not go as planned Indeed, with the grasp of contract interpretation, drafting attorneys are able to consciously assess whether or not provision at issue is subject to the risk of ambiguity and then can eliminate that risky ambiguous provision for the avoidance of further dispute From the litigators’ perspective, deeply perceiving the principles of contract interpretation can help litigators put their clients in a better position to a certain degree The above casts light on principles of contract interpretation undeniably calling for an established reform and profound understanding As a result, the author sets forth below the aims of this thesis: (i) This thesis attempts to fill the gap in perception and application of contract interpretation which is deemed to be fundamental but oblivious institution, thereby enhancing the legal certainty and predictability of contract and contractual litigation (ii) This thesis attempts to further accomplish in a supportive resource for legal practitioners With regard to drafting attorneys, it is meant to serve as an instrument to enhance the quality of contract drafting in terms of discerning The Civil Code 2005 passed by the 10th National Assembly of the Socialist Republic of Vietnam came into force from January 1, 2006 ambiguities in contractual terms and avoiding disputes thereof With respect to litigators, it is meant to improve the abilities in analyzing the disputed contract and thus in sharpening their arguments before the judicial body to some extent In light of the above reasons, the need to take an in-depth research into other countries in terms of rules on contract interpretation is urgently called for Among these, rules of contract interpretation of US law are infamous for their profound history of development, even now subject to controversy to adapt to the sophistication of contractual ambiguity The justifications for choosing US law as a role model for deriving experiences are also proved as follows: (i) The two competing trends of contract interpretation, namely textualism and contextualism of which the core issue is their justifications for admission of extrinsic evidence in aid of the intention-finding process are the main subject-matter of contract interpretation dispute and most thoroughly studied in the United States Undertaking the study into each trend’s justifications and practices virtually assures valuable lessons for Vietnamese legal system of contract interpretation and legal practitioners (ii) Contract interpretation enormously varies due to the complication of contractual language and diversity of contractual disputes Therefore, the study of such legal institution is best supported by judicial precedents, in which the holdings are accompanied with legal reasoning US law, with the piles of contract precedents, turns out to be an ideal reference for this research The topic of “The principles and practices of contract interpretation in US law – An implication for dispute settlement in Vietnam” is thus what the author chooses as his elaboration for bachelor’s thesis Literature review 2.1 Vietnamese materials - Textbook The textbook “Giao trinh Phap luat ve hop dong va boi thuong thiet hai ngoai hop dong” (2014) of Ho Chi Minh City University of Law provides the general view of Vietnamese law on contract interpretation, from the definition of the respective subject matter to the admissible extrinsic evidence in aid of ascertaining the parties’ real intention This textbook is meant to serve as the basic material for further in-depth research on the interpretative institution and relevant legal issues - Book The book “Luat Hơp Dong Viet Nam - Ban an va binh luan ban an” (2014) of author Do Van Dai focuses on giving the interpretive definition and relevant matters in finding the actual intention of contracting parties via the anatomy on Vietnamese judicial practices Author Do Van Dai further carries out his research into two typical types of extrinsic evidence which are prior negotiations and subsequent conducts for the purpose of intention ascertainment This book plays a significant role as the valuable source of basic knowledge and cases for the author’s further anatomy of the practical application of this institution in Vietnam However, the book, which only focuses on the use of pre-contractual information and subsequent conducts in contract interpretation, does not point out the use of objective extrinsic evidence to demonstrate and create ambiguity and the interpretative approach to which Vietnam is following The book “Binh luan khoa hoc – Nhung diem moi cua Bo luat Dan su nam 2015” edited by author Do Van Dai notes new amendments and supplementations of the Civil Code 2015 regarding contract interpretation This book, however, does not go into detail the application of such reform, especially the noticeable supplementation to Section of Article 404 of the Civil Code 2015 - Thesis The bachelor thesis “Interpretation of Contracts in English law and Experience for Vietnamese law” (2013) of Nguyen Vu Lien Quynh concerns with general principles of contract interpretation in the area of English contract law and gives several recommendations for Vietnamese Law based upon the comparative perspective between English law and Vietnamese law on the respective matter The elaboration above demonstrates extrinsic evidence as one of decisive elements for assessing which party will win or at least has the better argument in a contractual dispute involving interpretative issue In fact, aforementioned judicial practices support this assertion In addition, Article 404.1 of the Civil Code 2015168 strikingly supplements to Article 409.1 of the Civil Code 2005169 that the intent of contracting parties upon which the court relied to interpret the contract could be found in the whole process of negotiating, contracting and performing the agreements The new regulation thus implies the high possibility of extrinsic evidence which can be found in the period of negotiation, establishment and performance of the contract to be admissible in aid of ascertaining mutual intention However, as previously elaborated, not all extrinsic evidence should be admissible To guard against fakery, subjective extrinsic evidence (such as the parties’ testimony) is inadmissible as it is unreliable and self-serving for each party’s subjective understanding of the contract Instead, only objective extrinsic evidence, which is qualified as verifiability, trustworthiness and credibility, shall be admissible to interpret a contract Objective extrinsic evidence which is persuasive of a different interpretation from the plain meaning is admissible to even create ambiguity if the contract’s language is susceptible of that extrinsic evidence interpretation and that ambiguity is in consistent with the real intentions of contracting parties.170 This trend of adopting objective evidence has been, in fact, manifested in judicial practices For instance, in the first case above, extrinsic evidence embodying the Sellers’ advertisement and the subsequent conducts of both parties upon which the court relied was undoubtedly objective, since they were not one 168 Article 404 Interpretation of contracts (Civil Code 2015): “1 Where a contract contains ambiguous provisions, the interpretation of such provisions shall be based not only on the wording of the contract but also on the intentions of the parties which are expressed before and at the time of preparation and performance of the contract” 169 Article 409 Interpretation of civil contracts (Civil Code 2005): “1 When a contract contains ambiguous provisions, the interpretation of such provisions shall be based not only on the wording of the contract but also on the mutual intentions of the parties” 170 See more dissection of objective evidences in Subsection 2.3.2 of Chapter 58 party’s testimony of its own subjective understanding of the contractual provision This credibility-centered pursuit was also demonstrated in the second case Extrinsic evidence of negotiation history including an offer letter, exchanging letters, an acceptance of order and a proforma invoice was persuasively utilized by the arbitral tribunal These pieces of evidence were apparently not self-serving, but rather credible, verifiable and less easy to fake The last issue to address is, after allowing objective evidence extrinsic to the disputed agreement to demonstrate the language of contract is susceptible of more than one different meaning, which interpretation shall prevail, the plain meaning interpretation or the objective evidence interpretation Each interpretation undergirds different meanings, and each meaning is the manifestation of an intention Therefore, to decide which intention is the actual intention of both contracting parties, the principal of determining the prevailing intent at the time the contract was made as early analyzed in Chapter is worth its weight in gold In choosing among possible meanings, the most appropriate one is the meaning undergirding the intention of one contracting party which neither knew nor had reason to know of any different intention of the other, provided that the other knew or had reason to know what it was at the time of formation of the contract Apart from the above, the contract shall be deemed that it has never been formed However, it is important to remember that if the disputed term is not essential, the contract may be held to exist, exclusive of that term Though the policy in choosing the most appropriate meaning has not been regulated in Vietnamese law yet, it arguably accomplishes justice and rationale and therefore can be utilized by litigators to at least gain a better position in a dispute Two eloquent arguments are available: (i) the chosen meaning is shared to both parties at the greater extent than the not-selected meaning, thus each party has been actually subscribed to the chosen meaning even at least to a minimal degree; and (ii) the party, who knew or had reason to know of the meaning attached by the other party, had been able to anticipated the risk that the other did not intend to agree to 59 its desired meaning for the term and that a legal dispute might in future arise, but still willingly entered into the contract, thus was assumed to accept that risk.171 Finally, for a comprehensive regulation as to contract interpretation, the Vietnamese Civil Code which provides numerous fundamental institutions is recommended to take into consideration of the rule in choosing the most appropriate intention attached to the meaning of contractual language as early elaboration 171 Margaret N Kniffin (2009), Conflating And Confusing Contract Interpretation And The Parol Evidence Rule: Is The Emperor Wearing Someone Else’s Clothes?, Rutgers Law Review, Volume 62, Number 1, pp.94-95 60 CONCLUSION OF CHAPTER Whether extrinsic evidence is admitted with the two Pacific Gas restrictions, namely (i) that extrinsic evidence shows a meaning to which the disputed contract term is reasonably susceptible and (ii) that extrinsic evidence demonstrates that ambiguity exists, or freely admitted without any restrictions, seeking the reality rather than virtual reality is at heart of anti-formalist courts’ decisions Judicial precedents of US law, nevertheless, have showed that strictly following contextualist approach would interfere with certainty and predictability in interpretation of contracts Hence, protection of stability, uniformity, and predictability; avoidance of fraud, perjury, infirmity of memory, and bad faith; and requirement of careful drafting and contracting agreements are all at heart of formalist courts’ decisions Therefore, to succeed in discerning the real meaning of the contract but still affirming advantages of textualism, reconciliation of these two dominant interpretative regimes is arguably necessary in American jurisdiction In the process of reconciling, the role of objective extrinsic evidence is undeniable Indeed, by way of using objective extrinsic evidence, certainty and predictability of contracts as what business needs are firmed up; the frustration of the true intent of contracting parties is certainly averted Throughout Vietnamese judicial practices and interpretative institution of the Civil Code 2015, it is observable that contextualism is identified as the dominant approach Though this approach is able to effectuate the true intention of the parties, demonstrating the preference for the search of reality as opposed to virtual reality, inherent absurdity of this approach is unavoidable as we have observed in US precedents US precedents which manage to resolve the deficiencies of each regime by reconciling and sustaining advantages of both apparently different approaches are undoubtedly worth studying in the process of improving Vietnam interpretative regime To guard against fakery, subjective extrinsic evidence (such as the parties’ 61 testimony) is inadmissible as it is unreliable and self-serving for each party’s subjective understanding of the contract Instead, only objective extrinsic evidence, which is qualified as verifiability and credibility, shall be admissible to create ambiguity or to show a meaning to which the disputed contract term is reasonably susceptible Finally, which interpretation prevails shall depend upon the rule as prescribed in Subsection 1.1.2.3 of Chapter and as further elaborated in the last part of Subsection 2.4.2 of Chapter Additionally, there are many sources in which objective evidence can be found Trade practice, custom, course of performance, course of dealing (such as prior contracts), and history of contract negotiation (such as previous versions of draft contracts) all qualify as objective evidence 62 CONCLUSION Despite its practical importance, contract interpretation as the instrument to ascertain the meaning of a contractual clause by unveiling the mutual actual intention at the time the parties entered into the contract has not been seriously taken into consideration by commercial practitioners, judges or commentators in Vietnam Even neither the definition of contractual interpretation nor of contractual ambiguity has been deeply dissected Therefore, the study of interpretative regime in US contract law where the law of contract interpretation has developed upon a long-standing history of fundamental divisions among commentators, practitioners and judges is arguably informative and useful to the similar institution under Vietnamese law Notwithstanding the Vietnamese law and judicial practice’s good approach in interpretation which is the willingness to resort to extrinsic evidence in aid of interpretative issues, notoriously inherent defects of this approach is deemed to be hitherto neglected The pursuit of reality as opposed to virtual reality, embodied in the Vietnamese Civil Code 2015, judgments and arbitral awards, is the considerable advance It is, however, placing room for uncertainty and unpredictability of contract if the aforesaid approach is misused by judges or arbitrators and abused especially by the contracting party in bad faith Moreover, the untrammelled admission of extrinsic would certainly result in a significant increase of cost and time for contract enforcement and litigation In that circumstance, the admissibility of objective extrinsic evidence as an aid to discernment of ambiguity and interpretation of contract makes a mammoth contribution to rescuing law of contract interpretation from destabilization of agreement and frustration of true mutual intent Ultimately, objective extrinsic evidence, which is not self-serving, but rather verifiable, credible and able to guard against perjury, could make an evolutionary trend toward efficient and uniform interpretative regime of contracts in Vietnam 63 Contract interpretation as a lifeblood of the law on contract justly deserves more comprehensive academic studies Due to the lack of research experience, trammeled time, imperfect critical skills, and practical experience, it is inevitable that the thesis insufficiently addresses other angles and areas of contract interpretation, nevertheless The author is of the firm belief that further research on this area of law of contract can be deeper explored for a better understanding and application in the context of Vietnamese legal system 64 BIBLIOGRAPHY I LEGAL DOCUMENTS Vietnamese laws Civil Code 2005 passed by the 10th National Assembly of the Socialist Republic of Vietnam came into force from January 1, 2006 Civil Code 2015 passed by the 13th National Assembly of Socialist Republic of Vietnam came into force from January 1, 2017 Consumers’ Rights Protection Law passed by the 12th National Assembly of the Socialist Republic of Vietnam came into force from July 1, 2011 Insurance Business Law passed by the 10th National Assembly of the Socialist Republic of Vietnam came into force from April 1, 2001 (amended by the Law amending and supplementing several articles of the Insurance Business Law passed by the 12th National Assembly of the Socialist Republic of Vietnam came into force from July 1, 2011) Foreign laws Uniform Commercial Code of the United States II REFERENCES Vietnamese materials Do Van Dai (2014), Luat Hop Dong Viet Nam – Ban an va Binh luan ban an (Volume 2), Chinh Tri Quoc Gia Publisher Do Van Dai (2016), Binh luan khoa hoc – Nhung diem moi cua Bo luat Dan su nam 2015, Hong Duc – Hoi Luat Gia Viet Nam Publisher Ha Thi Mai Hien and Ha Thi Thuy (2015), Ban ve Che dinh giai thich hop dong du thao Bo luat dan su (sua doi), Nha nuoc va Phap luat Journal, Volume 3(323) 65 Ho Chi Minh City University of Law (2014), Giao trinh Phap luat ve hop dong va boi thuong thiet hai ngoai hop dong, Hong Duc – Hoi Luat Gia Viet Nam Publisher 10 Nguyen Anh Thu (2014), De xuat sua doi, bo sung qui dinh lien quan den nguyen tac thien chi Bo luat dan su Viet Nam nam 2005, Luat Hoc Journal of Ha Noi National University, Volume 30(3) 11 Vietnam International Arbitration Center (2015), Giai quyet tranh chap hop dong – Nhung dieu doanh nhan can biet, Tri Thuc Publisher Foreign language 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Wolters Kluwer Law & Business Publisher 46 W Stanfield Johnson (2005), Interpreting government contracts: Plain meaning precludes extrinsic evidence and controls at the Federal Circuit, Public Contract Law Journal, Volume 34, Number III CASES Vietnamese case 47 Case No 1543/DSPT dated September, 2002 of the Ho Chi Minh City People’s Court Foreign cases 48 Alta Berkeley VI C.V v Omneon, Inc., 41 A.3d 381, Del.Supr., 2012, March 05, 2012 49 Alyeska Pipeline Serv Co v O'Kelley, 645 P.2d 767 (Alaska 1982) 50 Am International v Graphic Management Inc., 44 F.3d 572 (7th Cir 1995) 51 Bartmann v Maverick Tube Corp., 853 F.2d 1540 (10th Cir 1988) 52 Bay Cities Paving & Grading, Inc v Lawyers Mut Ins Co., 855 P.2d 1263 (Cal.1993) 53 Berg v Hudesman 801 P.2d 222 (Wash 1990) 54 Chesapeake Energy Corp v Bank of New York Mellon Trust Co., N.A, 957 F.Supp.2d 316 S.D.N.Y.,2013, May 08, 2013 69 55 Convergent Wealth Advisors LLC v Lydian Holding Co 2012 WL 2148221 S.D.N.Y., 2012, June 13, 2012 56 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