JICA’s Legal Technical Assistance Projects in Vietnam, Cambodia and Laos Since the 1990s

Abstract

Many have written in English about the legislative and judicial systems of Vietnam, Cambodia and Laos. Fewer English writing commentators have investigated the modern legal histories of these jurisdictions. In particular, scant attention has been paid to a common feature in their recent development, the arguably pervasive influence of Japanese private law. Since the 1990s, the Japan International Cooperation Agency (JICA) has played a major role in the modernisation of law in the region. Through its legal technical assistance projects, JICA has provided support for the reform of codes and the training of lawyers in the use of those codes. This research critically examines JICA’s contribution to the rule of law in the former French Indochina region. It considers whether Japanese soft power (as manifested by JICA) complements or is at cross-purposes with projects of other organisations and initiatives (such as Asian Development Bank (ADB) and the World Bank). It evaluates the extent to which JICA’s work is currently attuned to or might be made more responsive to the social and economic aspirations of the relevant countries.

10.1 Introduction

Laws of Vietnam, Cambodia and Laos are significant study subjects for legal academics. Thus, they have authored in English various literature on the legal and judicial systems of these countries (The MLS Academic Research Service 2021). However, it is rare that English academic literature addresses the history of law in the former French Indochina region, as we know from the general lack of interest in this topic among the contributors of a core research handbook of legal history (Dubber and Tomlins 2018). Some reference materials nonetheless address how the law has developed in the region (Grabowsky 2009; Nicholson 2009; Seng 2009), which we can summarise as follows: (1) Before the arrival of French colonialism in the Mekong Subregion, Vietnam, Cambodia and Laos were governed by their traditional legal systems and customary norms influenced by Buddhism and/or Confucianism. (2) Under French colonial rule between the late 19th and mid-twentieth centuries, many laws and institutions modelled after the French civil law system were established. (3) After the Second World War and during the Cold War, communism dominated the former French Indochina region. This resulted in the introduction of socialist legal systems in Vietnam and Laos. Cambodia started practising the Vietnamese socialist justice system when Vietnamese armed forces drove the Khmer Rouge out of Phnom Penh. (4) From the late 1980s onwards, these countries undertook substantial law reforms to adopt market-oriented legal systems for economic recovery and development. This view of the regional legal history has shaped a perception among Western government officials and legal experts that the three countries continue to be under the dominant influence of French and Soviet civil law traditions (Forsaith 2016: 73; Harrington 2016: 161; US Department of State 2021a, b, c).

However, the post-Cold War legal history of Vietnam, Cambodia and Laos is more complicated than it seems. These countries reformed their legal systems with support from foreign donors who belonged to different legal traditions, including the Japan International Cooperation Agency (JICA)—Japan’s national ODA agency. However, less is known about how the law reforms have been influenced by Japanese legal ideas through JICA’s legal technical assistance projects.¹

In the 1990s, facing the need to update their laws to ones suitable for market-oriented economies, Vietnam, Cambodia and Laos requested Japan to provide them with legal technical assistance for reforming their law codes and the training of lawyers in the use of those codes (MOJ n.d.a, n.d.b, n.d.c). In response to the requests, JICA launched legal technical assistance projects (JICA Projects), with support from Japanese governmental agencies such as the International Cooperation Department (ICD) of the Ministry of Justice (MOJ) (MOJ n.d.d).² JICA ensured that the Projects would not result in Japanese experts’ intervention in the local legal systems, like the replacement of local customs by imported Japanese legal models (Kaneko 2008: 50; Taylor 2012: 240). Thus, JICA gave due weight to the opinions of local legal officers, adopting consensus-based decision-making processes (ICD 2020a: 3). Nonetheless, the reformed codes and rules culminating from the Project were inevitably affected by Japanese legal ideas as Japanese law experts and local lawyers trained in Japan carried out and supervised the law reform processes (Kaneko 2019; Taylor 2005; Teramura 2021a: 26–27).

However, there is a paucity of English literature discussing Japanese law’s influence on the legal norms of the host countries.³ This is most likely because many essential documents, such as commentaries and textbooks, are available in local and Japanese languages only (Teramura 2021b: 202). As a consequence, western commentators do not perceive Japan as the source of legal ideas useful in the countries along the Mekong River.⁴ This refers to the importance of a more comprehensive and systematic study assessing the implementation of JICA Projects in the former French Indochina region that takes into account contributions written in Japanese (Taylor 2001; Taylor 2009; Teramura 2021a).

Against this backdrop, this chapter examines the role of JICA in the legal development of Vietnam, Cambodia and Laos, consulting both English and Japanese documents. The chapter proceeds as follows. First, it critically examines JICA’s contribution to the rule of law in those countries, focussing on the implementation of JICA Projects (Sect. 10.2). Second, it considers whether the Japanese soft power as manifested by JICA and other Japanese government agencies complements or is at cross-purposes with legal aid projects of other donors (Sect. 10.3). Third, it evaluates the extent to which JICA Projects are currently attuned to and/or might be made more responsive to the social and economic aspirations of the host countries (Sect. 10.4). Note that this chapter only addresses JICA’s initiatives for developing private law, a branch of the law dealing with relations between individuals or institutions. It does not examine public law, the law of relations between the state and the general public.

10.2 The Legal and Judicial Development Projects of JICA

JICA Projects aim to offer host countries: “(1) Assistance in the drafting of basic laws; (2) [a]ssistance in the establishment of judicial institutions for the operation of enacted laws; and (3) [a]ssistance in the capacity building of legal professionals” (ICD 2020a: 3). To achieve these goals, JICA has been conducting law and development cooperation activities in Vietnam, Cambodia and Laos for around 30 years. This section overviews the nature and scope of such activities, examining Japanese law experts’ commitment to local legal development.

10.2.1 Vietnam

JICA has delivered the following law and development programmes in Vietnam: the Legal Technical Assistance Project from 1996 to 2007 (First Project), the Legal and Judicial System Reform Project from 2007 to 2015 (Second Project) and the Project for Harmonised, Practical Legislation and Uniform Application of Law Targeting Year 2020 from 2015 to 2020 (Third Project) (JICA n.d.a).

On the First Project, JICA’s English website reads that “[the First Project] achieved certain results, for example, revised Civil Code (June 2005), revised Civil Procedure Code (November 2004) and manuals for legal practitioners that were jointly made by Japanese experts and partner organisations” (JICA n.d.a). However, Japanese experts’ contribution to the preparation of those products was likely modest. This is because Japan had never provided legal technical assistance before, and because the Vietnamese government took the lead on the law reform processes. For instance, the Vietnamese government commenced revising the Civil Procedure Code in 1993. JICA started sending Japanese law experts to the country in 1997, to hold seminars and training programmes for Vietnamese legal experts working at the Ministry of Justice, the Supreme People’s Court and the Supreme People’s Procuracy (Maruyama 2004: 4). These capacity-building opportunities arguably facilitated Vietnamese experts’ discussion on the civil procedure law reform (Maruyama 2004: 4). Japanese legal experts got more directly involved in the law reform in 2002 when the Vietnamese government issued a resolution prompting the Drafting Committee of the Civil Procedure Code to complete its mission expeditiously.⁵ Then, the Vietnamese government requested JICA and other donors to comment on the “seventh” draft of the new Civil Procedure Code,⁶ which the Drafting Committee prepared based on the past Civil Procedure Codes of the People’s Republic of China and the Soviet Union (Yoshimura 2005: 11).

JICA appointed Japanese legal experts as advisors to the First Project and the Drafting Committee. These advisors formed a research group with senior Japanese scholars and practitioners to review the draft and submit recommendations to the Vietnamese government (Maruyama 2005: 5). Nevertheless, not all their proposals were reflected in the revised Civil Procedure Code because the Drafting Committee and the National Assembly of Vietnam had the final authority to decide whether and to what extent the proposals were to be adopted (Iseki 2005: 59; Yoshimura and Iseki 2005). Moreover, the Drafting Committee expected the Japanese experts to advise on specific topics and issues extracted from the draft Code (Maruyama 2005: 8). In other words, the Committee in advance framed the Japanese commentators’ discussions on the law reform. In spite of such a modest expectation of Vietnamese lawyers, the Japanese experts often spotted in the draft Civil Procedure Code problems that were not covered by the Committee’s request for advice, and they proposed solutions for such problems (Iseki 2005: 59; Yoshimura and Iseki 2005: 44).

According to a legal instructor working for the First Project, JICA avoided drafting its version of the Civil Procedure Code as it believed that doing so would not only undermine Vietnamese lawyers’ motivation towards the law reform but also bring about negative consequences to their capacity building (Maruyama 2005: 8). JICA opted for a similar approach in assisting the reform process of the 1995 Civil Code, which the National Assembly of Vietnam officially launched in 2000. Professor Morishima of Nagoya University formed a joint research group for the law reform, inviting Japanese legal experts and Vietnamese law officers. The group issued various recommendations, and the Drafting Committee accepted the working group’s suggestions on the fundamental principles of private transactions, such as equality between the parties, party autonomy and respect for private rights (Lien 2006: 12–13). Accordingly, the Japanese legal experts indeed contributed to the reform of the 1995 Civil Code (and the establishment of the 2005 Civil Code). However, the process was initiated by the Vietnamese government not to overhaul the 1995 Civil Code comprehensively but to modify some aspects of the Code that were based on the Civil Code of the Russian Federation (Morishima 2006: 17). Therefore, the assistance of JICA in preparing the 2005 Civil Code and the 2004 Civil Procedure Code was specific and targeted but non-comprehensive.

Building upon its experience of the First Project, JICA launched the Second Project in 2007. JICA invested more resources into the capacity building of legal officers with different backgrounds. The capacity building methodology was unique in that JICA adopted a bottom-up approach aiming to improve the quality of Vietnamese legal practice from local level authorities (Kikegawa 2008; Morinaga 2008: 15–18). The Vietnamese government and JICA chose Bắc Ninh Province as a pilot zone, and JICA offered training programmes to local judicial officers, legal officers and legal practitioners working for the People’s Court and the People’s Procuracy, as well as agencies of the Vietnamese Ministry of Justice in the Province (Morinaga 2008: 15–18). The idea was for JICA to identify those institutions’ problems and challenges and explore plausible solutions for such issues. Whether those solutions worked or not, JICA shared the outcomes of its attempts with the central level authorities,⁷ for the latter to take advantage of this information in their future law reform projects (Morinaga 2008: 18–19).

Despite this shift to capacity building, JICA continued helping Vietnam update legislation. For example, the Civil Judgement Enforcement Act was established in 2008. JICA had organised several workshops where the members of the Drafting Committee of the Act and court execution officers could discuss with Japanese legal experts about early drafts of the Act (Public Policy Department at JICA 2010: 12). The Vietnamese experts responded favourably to the Japanese experts’ suggestions to strengthen the independence of law enforcement agencies, increase the transparency and efficiency of judgement enforcement proceedings, and improve procedures for the attachment, evaluation, and auction of property.⁸ Thus, the Drafting Committee reflected those comments in the final draft of the Act (Public Policy Department at JICA 2010: 140). Unfortunately, JICA’s long-standing support for drafting the Real Property Registration Act, which was reportedly highly valued by the local experts drafting the Act (Public Policy Department at JICA 2010: 127, 136–137), was not rewarded due to the National Assembly’s cancellation of the legislative project (Public Policy Department at JICA 2015: 27). Notwithstanding this setback, JICA organised a series of workshops for the knowledge development of Vietnamese experts drafting the Decree on the Registration of Secured Transactions, introducing them relevant Japanese laws and practice (Public Policy Department at JICA 2015: 9). The workshops were reportedly helpful for preparing the final draft of the Decree. Further, the amendments of the 2004 Civil Procedure Code and the 2005 Civil Code were adopted by the National Assembly in 2011 and 2015, respectively (Tatara 2012: 48; Tsukahara 2018: 41). JICA worked with the drafting committees for these Codes by organising seminars to comment on the amendment proposals that were elaborated by the Vietnamese law experts (Public Policy Department at JICA 2015; Kawashima 2019: 120; Joint Research Group on the Civil Code of Vietnam 2015).

The Third Project commenced in 2015, hoping to improve the capacity and skills of legal and judicial institutions for the consistent and efficient application of legal instruments (Industry Development and Public Policy Department at JICA 2018: 59ff). JICA kept offering support for legislative drafting but avoided setting short-term objectives. For example, JICA held several workshops to build the foundation of the codification of private international law, which would hopefully take place at some point (Industry Development and Public Policy Department at JICA 2018: iv–v).⁹ Therefore, the aim of the Third Project was to help the Vietnamese government develop human resources that would enable them to craft consistent and coherent legal and legislative documents in the foreseeable future (Kawanishi 2015: 9–14; Matsumoto 2015).

10.2.2 Cambodia

For the development of private law in Cambodia, JICA has been implementing the Legal and Judicial Development Project since 1999. We can divide the Project into three periods. Between 1999 and 2012 (First Period) were the Phases 1–3 of the Project in which JICA collaborated with the Cambodian Ministry of Justice (CMOJ) in establishing the Civil Code, Civil Procedure Code, and relevant rules almost anew (JICA 2012a: 3ff). Between 2012 to 2017 (Second Period) is Phase 4, in which JICA aimed to equip Cambodian legal elites with the knowledge and skills that enable them to lead the future reforms of those Codes and rules without support from foreign donors (JICA 2012b). From 2017 to 2022 (Third Period) has been Phase 5, whose primary objective has been to build a solid foundation of legal practice that complies with those Codes and rules (JICA 2017).

During the First Period, Japanese experts committed heavily to drafting the main bodies of Cambodian private law—the Civil Code and the Civil Procedure Code. The cause of this outstanding involvement was the shortage of human resources in the legal sector of Cambodia, which was triggered in the 1970s by the nationwide atrocity and destruction by the Khmer Rouge regime (Teramura 2021b: 202). The regime turned the country into a (near-)complete legal vacuum by burning law books, demolishing libraries and exterminating trained lawyers (Phallack 2012: 8; Vickery 1986: 120). Hence, the Japanese legal experts were exceptionally determined to take leadership in JICA Projects operating in Cambodia, balancing this initiative with the local ownership of law reform. For instance, JICA established in Japan the Civil Code Working Group (CCWG) and the Civil Procedure Code Working Group (CPCWG)—each composed of Japanese experts in the field, to make these groups to draft the Codes in Japanese (JICA 2001: 6–7). Correspondingly, the CMOJ established in Cambodia the study groups for those Codes consisting of Cambodian judges, CMOJ officials and other legal experts, to define legal terminologies and finalise the draft Codes in their language—Khmer (JICA 2001: 6–7).

The CCWG drafted the Civil Code as follows (Morishima 2003: 7).¹⁰ First, each group member worked on a specific part of the Civil Code, tracing the structure of the Japanese Civil Code. Second, the members prepared the proposals of the assigned sections of the Cambodian Civil Code for their internal and informal discussion. The proposals took into account relevant rules in the old Cambodian Civil Code and the civil laws of Japan, Germany, and France, among others. Third, the members travelled to Cambodia in rotation to explain the draft proposals to the study group in the CMOJ and obtain feedback. From time to time, Cambodian legal experts were invited to Japan to share their views on Cambodian civil law with the CCWG. Fourth, the CCWG drafted the Civil Code in Japanese, reflecting inputs from the Japanese and Cambodian experts. Fifth, the study group in the CMOJ translated the draft Civil Code into Khmer, with the support of JICA staff who were fluent in both Khmer and Japanese (Sakano 2003). The CPCWG adopted a similar approach in drafting the Civil Procedure Code (Takeshita 2003). The cooperation of Cambodian and Japanese lawyers culminated in the promulgations of the Civil Procedure Code in 2006 and the Civil Code in 2007. Further, JICA guided the Cambodian legal professionals in drafting and finalising the Law on Non-Contentious Case Procedures, the Law on Personal Status Litigation, the Law on Implementation of the Civil Code, the official commentaries and textbooks of the Civil Code and the Civil Procedure Code, and so on (JICA 2012a: 5–12).¹¹

During the Second and Third Periods, JICA concentrated on the capacity building of Khmer legal practitioners. For instance, Phase 4 of the Legal and Judicial Development Project was designed to enhance the understanding of those new legal instruments among Khmer legal experts at the CMOJ, Royal Academy for Judicial Profession (RAJP), the Bar Association of Kingdom of Cambodia (BAKC), and the Royal University of Law and Economics (RULE) (JICA 2012b). Special training courses were organised by experienced instructors—most of them were Japanese law experts, and each Cambodian institution was tasked to nominate members who would participate in the training courses. In addition, JICA continued to support legislative drafting, which led to the promulgation of the Inter-Ministerial Prakas (Regulation) Concerning Real Rights Registration Procedure Pertaining to the Civil Code in 2013 (JICA n.d.e.).

The Third Period started in 2017, with the aim of helping Cambodian legal practice strictly follow the Civil Code and the Civil Procedure Code. Phase 5 led to preparing document templates for legal proceedings and new judgment publication initiatives for greater legal certainty and transparency (Chheng 2021; JICA 2017). JICA also intended to update laws and regulations related to those Codes (with the initiatives of Cambodian elite lawyers), reflecting on needs in the Cambodian legal sector (JICA 2017).

10.2.3 Laos

JICA has implemented three projects to reinforce the rule of law in Laos: the Legal and Judicial Development Project between 2003 and 2009 (JICA 2020), the Project for Human Resource Development in the Legal Sector between 2010 and 2018 and the Project for Promoting Development and Strengthening of the Rule of Law in the Legal Sector of Lao P.D.R. between 2018 and 2023 (JICA n.d.b,n.d.c,n.d.d). We can classify the achievements of these projects as follows.

The first category is the capacity development of local legal practitioners to obtain effective skills for handling civil cases. JICA intended to achieve this goal through collaboration between Japanese experts and local practitioners in preparing and publishing core legal resources, such as commentaries and textbooks. As such materials were not always available in Laos in the early 2000s (Tabe 2007: 14–16), the JICA experts considered that the collaboration would help Lao lawyers deepen their understanding of private law (Matsuo 2007: 41; Nakahigashi et al. 2007). The resources Japanese and Lao experts published through JICA Projects include a handbook for judicial writing, a glossary for legal terminology, a legal database, textbooks on civil law and commercial law and civil litigation handbooks (JICA 2009: 2–4; Nakamura 2014: 5–6). Seminars and workshops targeting small and large audiences were also held by JICA to familiarise Lao legal experts with these new publications and disseminate them among Lao lawyers and government officers (JICA 2009: 43–117). Note, however, that JICA and its Lao partners produced such materials to address ambiguities in existing laws and harmonise the interpretation of these laws. Therefore, the influence of Japanese private law on those resources is unlikely to be outstanding.

The second category is the provision of support for drafting the first Lao Civil Code. The backdrop of the support is as follows. In the 2000s, the Lao government ordered the Lao Ministry of Justice (LMOJ) to establish a working group for civil law reform. The working group looked into the civil law of Laos with Japanese law experts, participating in various capacity-building activities organised by JICA. At that time, Laos did not have a civil code, and what lawyers called “civil law” was 18 individual statutes governing different areas of private disputes (Ito 2017: 60). These statutes had been updated from time to time. However, the working group concluded that repeating partial reforms and amendments would not be useful for addressing duplications and contradictions in the statutes and making the statutes compatible with the rapidly progressing society of Laos. Accordingly, the working group recommended that the Lao government combine those separate statutes into a single statutory body—the Civil Code. The Lao government approved the recommendation in 2012. Then, the LMOJ officially requested JICA to support drafting the new Civil Code as it realised that JICA acquired the knowledge and information of Lao private law through those capacity-building initiatives for Lao lawyers (Ito 2017: 60; Savankham 2016).

JICA had not anticipated such a request but agreed to work with the LMOJ on the law reform (Ito 2020). The two organisations established the Civil Code Drafting Committee. The members of the Committee were local legal officers recruited from the LMOJ, the People’s Supreme Court, the Supreme People’s Procuratorate, the National University of Laos, the National Assembly, the Ministry of Foreign Affairs and the Ministry of Commerce and Industry (Irie 2020: 65). Correspondingly, JICA established in Japan the Civil Law Advisory Group for Laos that consisted of Japanese law professors and lawyers working for JICA (Irie 2019a: 29). The Advisory Group, with a group of JICA officers being resident in Laos, offered to the Drafting Committee instructions and consultancy for completing the new Code by the proposed deadline in 2015 (Irie 2019a: 30). The Advisory Group refrained from dominating the drafting process because it was keen on witnessing the creation of “Lao Civil Code by the [Lao] People, of the [Lao] People, for the [Lao] People”.¹² The Group respected the leadership of the Drafting Committee and limited its role to a facilitative general advisor who responded to enquiries from the Committee, and who lectured to the Committee about various topics, including basic legal concepts and foreign legal systems (Irie 2019a: 31).¹³ The Drafting Committee managed to prepare the first complete draft of the Civil Code by 2015, but it took until 2018 for the National Assembly of Laos to promulgate the Code. The three-year gap was spent on improving the draft further, based on public comments from legal and business sectors (Irie 2019a: 31–32). Finally, the Code came into effect in 2020 (MOJ 2020).

10.3 Legal Development Projects of Other Donors

JICA is not the only institution that has offered legal development aid projects to Vietnam, Cambodia and Laos. International organisations such as the United Nations (UN) and the Asian Development Bank (ADB), as well as foreign countries’ national ODA agencies, like the United States Agency for International Development (USAID) and Agence Fançaise de Développement (AFD), have also implemented law reform projects in the former French Indochina region. Their law and development initiatives have sometimes overlapped with JICA Projects, which have resulted in tensions and contradictions. This section discusses competitions between JICA and other donors operating in the region. It also considers JICA’s regional standing in the development of private law.

10.3.1 Vietnam

The institutions that have and have been providing Vietnam with legal technical assistance (apart from JICA) since the 1990s are USAID, Deutsche Gesellschaft für Internationale Zusammenarbeit (GIZ), AusAID, the Canadian International Development Agency (CIDA), the Danish International Development Agency (DANIDA), the Swedish International Development Cooperation Agency (Sida), Maison du droit by France, the European Union (EU), the World Bank, ADB and the United Nations Development Programme (UNDP), among others (Edagawa 2020).¹⁴ These organisations have worked on diverse legal development aid projects for many years. Since the conclusion of the US-Vietnam Bilateral Trade Agreement (BTA) in 2001, USAID has delivered the Support for Trade Acceleration (STAR) Project from 2001 to 2013 and the Governance for Inclusive Growth (GIG) Program from 2014 to 2018. The purpose of these initiatives was to help Vietnam meet the commitments under the US-Vietnam BTA and become a member of the World Trade Organisation (WTO). In the area of commercial law, USAID had assisted Vietnam until 2006 in: (1) developing 93 laws and regulations that conform with the US-Vietnam BTA; (2) promoting law reforms through organising 290 seminars and workshops for 20,400 local state officials and business leaders; and (3) publishing and distributing reference materials to local political, legal and business stakeholders (Coon 2012). These projects arranged by the US were inevitably at cross-purposes with JICA Projects because USAID intended to reform laws and regulations on commerce and trade, and because JICA updated the Civil and Civil Procedure Codes—the bodies of law governing relationships between private parties generally—and laws closely related to these Codes. The coverage of the Civil and Civil Procedure Codes is broad in that these Codes provide foundational rules dealing with differences among diverse private individuals, including merchants. As the number of aid donors working in Vietnam has been outstanding, it is highly likely that the development projects of other donors have also intersected with JICA Projects.

Nevertheless, Vietnam has managed to coordinate these competing donors effectively. For example, in reforming the Civil and Civil Procedure Codes and relevant laws, the Vietnamese government bestowed control of the drafting processes on the committees and working groups consisting of local government officials and lawyers. Occasionally, the members of these committees and groups sought foreign legal experts for advice on their draft legislation. However, they avoided fully depending on recommendations from one donor. This attitude is conceivable based on JICA’s experience preparing the 2004 Vietnamese Bankruptcy Law. According to JICA’s record, Vietnam first worked with ADB on the reform of its bankruptcy law. However, ADB ceased to provide law reform support before completing the final draft (Morinaga 2008: 10). Accordingly, the Supreme People’s Court of Vietnam which was responsible for the law reform project, requested JICA to take over the advisory role from ADB (Kono 2021: 25; Morinaga 2008: 10). JICA agreed and started being involved in the reform project in 2000. It invited authorities of Japanese bankruptcy law to be expert advisors on the project.¹⁵ These advisors commented on the second, third and seventh drafts of the 2004 Bankruptcy Law but refrained from forcing Vietnam to follow their law reform model (Kaneko 2006: 13–14). The Japanese experts reportedly put forward a legislative model that designed the 2004 Bankruptcy Law as a system for fair and equitable debt collection from companies insolvent. The idea of this legislative model was to establish a set of rules that enable insolvent companies to complete liquidation and leave the market expeditiously. The third draft of the Bankruptcy Law adopted this legislative model. However, the seventh draft focussed on the salvation and restructuring of businesses facing financial stress, prioritising business continuity over strict debt collection. Like Chapter 11 of the US Bankruptcy Code, the new draft of the 2004 Bankruptcy Law permitted the sacrifice of creditors’ rights for corporate rescue and reorganisation (Kaneko 2006: 15; 2021). Kaneko suggests that this policy shift was inspired by the active promotion by the World Bank and ADB of their US-style legislative models.¹⁶ The National Assembly of Vietnam adopted the seventh draft without significant revisions, rejecting JICA’s legislative model emphasising debt collection.

It is conceivable from Vietnam’s law reform projects with USAID, ADB, the World Bank and JICA that the country has not conferred JICA special status compared with other donor organisations. Because many donor institutions were operating in Vietnam, the country had the luxury of comparing diverse legislative proposals from different donors, assessing economic and financial incentives that would likely follow these proposals. If it found recommendations from other donors more appealing, the Vietnamese government would not hesitate to decline suggestions from JICA, as in the case of the 2004 Bankruptcy Law reform. JICA has contributed to improving private law in Vietnam, which does not connote that its contribution has always been more profound than other donor agencies’. Hence, the position of JICA and Japanese law experts in developing Vietnamese private law has been relative to other aid institutions. Vietnam treated JICA’s legislative models as “comparable” to those from other donors.

10.3.2 Cambodia

No discernible record shows the precise number of cooperation agencies that have engaged in legal development projects in Cambodia. However, the number is unlikely to be small, considering the history that the Communist Party of Kampuchea (CPK), led by Pol Pot, almost entirely abolished the legal and judicial systems of the Kingdom. The new Cambodian government established in the 1990s was eager to fill this legal vacuum because to do so was a condition for receiving financial aid support from international institutions and foreign governments. The support was crucial for Cambodia due to its high poverty rate, destroyed infrastructure and economy damaged by the civil conflict. Accordingly, the Cambodian government was open to any aid support proposed by foreign institutions. However, unlike in the case of Vietnamese law reform, the Cambodian government was often reluctant to take initiatives in its law reform projects. This passive attitude caused tensions among donor institutions. JICA has experienced such tensions at least twice, as discussed immediately below.

The first case was on the Civil Code. Since 1999, JICA had worked with the CMOJ on drafting the Code until its promulgation in 2007.¹⁷ The purpose of the Code was to define the basic rights of citizens—private rights—such as personal and property rights. Naturally, early drafts of the Code contained various rules on immovable property. On the other hand, the Ministry of Land Management, Urban Planning and Construction (MLMUPC) had been undertaking the Land Management and Administration Project (Industry Development and Public Policy Department at JICA 2012: 40), with support from ADB, the World Bank, and GIZ.¹⁸ As part of this project, the East-West Management Institute (EWMI), a US not-for-profit organisation for the promotion of the rule of law, had been working on reforming the 1992 Land Law, based on its consultancy contract with ADB. When the revised Land Law was promulgated in 2001, it became clear that some provisions of the new Land Law conflicted with the draft Civil Code prepared by JICA and the CMOJ (Industry Development and Public Policy Department at JICA 2012: 39–41). The point of controversy was whether to adopt the Torrens title system—a land registration and transfer system operating on the principle of “title by registration” rather than “registration of title”—derived from the common law of South Australia (Kaneko 2006: 18).¹⁹ For instance, Article 69 of the 2001 Land Law read that “the transfer of ownership of [land or a real property] shall be considered as valid upon the registration of the contract of sale with the Cadastral Registry Unit” (MLMUPC 2002). In contrast, the draft Civil Code required registration as perfection of property rights against a third party (i.e. an additional step required to be taken to make ownership rights effective against a third party), stating that the transfer of land ownership took place upon the meeting of the minds between parties (e.g. a seller and a buyer) (Industry Development and Public Policy Department at JICA 2012: 39–41).

According to JICA, this draft rule on ownership transfer emerged from its discussion and consensus with the CMOJ and the General Department of Cadastre and Geography. Nevertheless, ADB and EWMI started opposing the adoption of the Civil Code, insisting that the Code would be an obstacle to the 2001 Land Law coming into force. The opposition caused an inter-ministerial controversy between the CMOJ and the MLMUPC, which escalated to an inter-donor debate among the World Bank, ADB and JICA (Industry Development and Public Policy Department at JICA 2012: 39–41; Trzcinski and Upham 2014). Suggesting the subject was highly technical, the Council of Ministers of Cambodia requested these donors to settle the difference by themselves. In 2004, the three donors held a two-day conference at the headquarters of the World Bank in Washington, DC. JICA agreed to partially modify the draft Civil Code to make it compatible with the 2001 Land Law because the latter was already promulgated.²⁰ After JICA made the modification, no opposition to the Civil Code was expressed by the MLMUPC, ADB, and the EMWI (Industry Development and Public Policy Department at JICA 2012: 39–41).

The second case concerned the Civil Procedure Code (CPC). In 2003, the Cambodian Ministry of Commerce (CMOC) published the draft of the Commercial Court Law (CCL) that it prepared with CIDA. The idea of the CCL was to establish a special first instance court in Phnom Penh that would be capable of dealing with commercial cases fairly and efficiently under “fast track” rules diverged from the draft CPC for the Kingdom to improve its business environment and attract more foreign investors (Industry Development and Public Policy Department at JICA 2012: 51).

The preliminary draft was not acceptable to the CMOJ and JICA, who had been preparing the CPC since 1999, because (1) the procedure for the appointment of judges under the CCL violated the Constitution of Cambodia, and (2) the jurisdiction of the proposed Commercial Court was so broad that it could water down the CPC and other procedural norms (Takeshita 2004).

On (1), the draft law provided that each tribunal in the Commercial Court consist of two career judges and one advisory judge (or one associate judge) (Takeshita 2004: 25). The appointment of the advisory judge was planned to be made by an inter-ministerial commission comprising of officers who belong to the CMOJ, CMOC, Ministry of Economy and Finance, National Bank of Cambodia and Cambodia Chamber of Commerce (Industry Development and Public Policy Department at JICA 2012: 51; Takeshita 2004: 25). However, the Constitution stated that the appointment of judges in Cambodian courts was to be made by the King as per recommendations by the Supreme Council of the Magistracy—a judicial organ to maintain the independence of the judiciary.²¹ Thus, having such an advisory judge in a tribunal would contradict the judicial independence guaranteed by the Constitution.

On (2), the draft law intended to confer the Commercial Court broad exclusive jurisdiction to hear matters related to commercial transactions, mixed contracts (i.e., contracts between merchants and non-merchants), negotiable instruments such as stocks and bonds, commercial enterprises, insolvencies, banking, financial institutions, foreign exchange, product and service liability, maritime disputes and competition, among others (Takeshita 2004: 25–26). This broad authority implied that the Commercial Court could bypass the CPC (and even the Criminal Procedure Code prepared by France) on many occasions. The CMOJ and JICA hence issued comments criticising the draft CCL. The CMOC ultimately decided to modify the draft CCL to reduce the exclusive jurisdiction of the Commercial Court, agreeing to mandate the Court to apply the CPC where applicable. ADB and UNDP later joined CIDA to offer legal technical assistance to the CMOC in updating the draft CCL (Industry Development and Public Policy Department at JICA 2012: 51–52). However no discernible material suggests that the CCL has been promulgated, and the government still likely plans to establish the Commercial Court (Kunmakara 2021; Vanyuth 2021).²²

10.3.3 Laos

Few cases have been reported about overlaps between JICA’s and other donors’ legal technical assistance projects in Laos. This is likely because JICA has delivered law and development initiatives that supplement the works of other donors. For example, JICA published legal education materials to help local practitioners learn about laws and rules established by Lao experts and foreign donors. JICA also drafted the Civil Code with Lao lawyers and government officers, but the foundation of the Code was 18 statutes that had been created by local and foreign experts (Irie 2019a: 33ff). The only noticeable event reported by JICA as an overlapping case is one that occurred in relation to a matter raised by the International Finance Corporation (IFC) of the World Bank Group. In late 2017, when the drafting committee of the Civil Code was in the final stage of its mission, the IFC sent a notice to the committee, demanding the committee rewrite the rules on secured transactions in the Civil Code (Irie 2019a: 32). The IFC argued that the committee should make the Code more convenient for those using the Registry Office for Security Interests in Movable Property. This centralised computer registry allegedly allowed registered individuals and institutions to record their financial interest in moveable and personal property.²³ The IFC developed the system with the Ministry of Finance of Laos (Irie 2019a: 32), to record (if possible) all secured transactions in personal property on the unified and transparent online system for the promotion of such transactions in the country (Irie 2019b: 42). To this end, the IFC insisted on making various changes in the Civil Code, including but not limited to the prohibitions of “pledge on movable property” and “setting up pledge with documents” (Irie 2019a: 32), despite these being widely used among Lao people (Irie 2019b: 47). The IFC urged the committee that noncompliance with the advice would result in Laos going down in the World Bank’s annual Ease of Doing Business Rankings (Irie 2019b: 41–42). However, the drafting committee opted to follow the IFC’s notice only minimally because it found that the unified registration system was not useful for ordinary transactions among Lao private parties (Irie 2019b: 46–50). The committee pointed out that the purpose of the Civil Code was to regulate ordinal private transactions, not business ones, so it rejected most of the IFC’s recommendations (Irie 2019a: 32).

10.4 Conclusions: JICA’s Commitment to Law Reforms in Vietnam, Cambodia and Laos

This chapter has examined how JICA has shaped part of legal pluralism in the former French Indochina countries over the last three decades. Based on the assessment, one may rank the level of JICA’s commitment to civil law reforms in the three countries as follows: (1) Cambodia, (2) Laos and (3) Vietnam. In Cambodia, JICA has played a leading role in drafting principal codes and laws from almost scratch, filling the lack of human resources in the Cambodian legal sector. The leadership was crucial for the promulgations of the Civil Code and the Civil Procedure Code, which formed the foundation of the Cambodian legal system.²⁴ Indeed, the drafting process of these Codes caused tensions between JICA and other donors such as ADB, the World Bank, GIZ and CAID. However, Cambodian legal elites did not make decisions that might turn JICA’s long-term efforts in vain, respecting JICA’s proposals as practically as possible. Even where the elite lawyers observed occasional conflicts between different legal models, as in the case of the Land Law reform, they requested JICA to consult directly with other donors. They did not unilaterally discard the plan of JICA, so the Japanese law experts were not forced to rewrite their legislative models. Thus, JICA’s achievements in the Kingdom are comprehensive and outstanding. In Laos, JICA delivered Civil Code-centred supervisory support, relying on other donors' past legal technical assistance projects. Put differently, JICA Projects in Laos focussed on improving the legal environment by supplementing past law reforms initiated by other donor agencies. Hence, JICA’s accomplishments in developing Laos civil law are significant but supplementary. In Vietnam, JICA’s role has remained to be one of many aid donors who provide on-demand advice and support to Vietnamese lawyers. JICA has provided drafting assistance to the Vietnamese government from time to time and in a piecemeal fashion. Some essential proposals by JICA have been rejected by Vietnamese legal experts, as in the case of the Insolvency Law reform in the 2000s. Therefore, JICA contributed to varying degrees of legal development in Cambodia, Laos and Vietnam.

Whether JICA’s Projects are attuned to the social and economic aspirations of the three countries may not be determined solely based on the research conducted for this chapter. Nevertheless, Cambodia and Laos have maintained the legislative models that JICA developed with local legal experts, despite occasional interference from other influential donors. This may imply Cambodian and Lao lawyers’ basic endorsement of JICA Projects. In contrast, it is unclear to what extent Vietnamese legal elites have positively evaluated JICA Projects. These elites have often limited the role of JICA to an advisor and have not let the agency play an outstanding role in the development of Vietnamese private law. Thus, JICA Projects have possibly been in accord with Cambodia’s and Laos’ social and economic ambitions but not strictly with Vietnam’s. Hence, the time has probably come for JICA to critically reflect on its commitment to the Vietnamese legal system and to decide whether and how it will continue to provide Vietnam with legal technical assistance. Hopefully, the reflection will open up new possibilities for both JICA and Vietnam.