Author
Mr Luu Huy Hoang
Organisation/Institution
Frasers Law Company
Country
VIETNAM
Panel
Private Law
Title
Protecting the Performance Interest in Contracts as a Foundation for Private Sector Growth
Abstract
Vietnam is entering a critical phase of growth, clearly positioning the private sector as the primary driver of national economic growth. However, this ambition is undermined by a persistent failure of legal enforcement, specifically, the non-compliance with contractual obligations that often occurs without appropriate and sufficient remedies for the aggrieved party. The core problem is Vietnam’s inadequate damages mechanism to protect the promisee’s performance interest, the right to receive the bargained-for performance. This legal gap continues to destabilise private enterprises and cause loss of confidence in the business environment. This paper critically examines the inadequacy of Vietnam’s current consequentialist approach to contractual damages, arguing that this model is outdated and fails to meet the complex demands of regional economic integration. Employing doctrinal analysis, the paper demonstrates that conventional damages, focused only on quantifiable consequential loss, are insufficient to address strategic or opportunistic breaches. The core argument for reform rests on the principle of promissory morality (pacta sunt servanda), which demands that performance itself be protected. To secure the promisee's performance interest, the paper proposes that the legal framework in contract law must formally move beyond consequentialism. It examines specific non-consequentialist concepts, including negotiating damages (also known as Wrotham Park damages), user damages, and reasonable royalties, as vital measures to compensate the aggrieved party for the benefit lost due to breaches or violations. Protecting this performance interest provides the legal certainty that investors rely on. This commitment to enforcing the full value of the commercial bargain, rather than merely covering provable expenses, significantly enhances the jurisdiction's attractiveness. The paper thus demonstrates how reforming this specific area of contract law is essential for fostering sustainable regional integration, not only in Vietnam, but also in other comparable developing economies. Key words: contract law, performance interest, consequentialism, negotiating damages
Biography
Luu Huy Hoang is a dedicated legal practitioner with nearly five years of experience practising commercial law in Vietnam. He currently works at Frasers Law Company, where his practice focuses on complex commercial contracts, corporate governance, and foreign investment matters. His notable experience includes advising Vietnamese state-owned enterprises and foreign investors on large-scale projects and representing clients in multiple arbitration and litigation cases. Hoang holds a Master of Laws (LL.M.) in Private Commercial Law from The Australian National University (ANU), a qualification that underpins his comparative legal approach to domestic issues. His research interests lie at the intersection of international commercial law, private law, and dispute resolution, specifically examining how legal and regulatory frameworks can support economic development and regional integration. Hoang actively contributes to the academic discourse, having presented papers on remedies and procedures at several academic conferences and workshops, such as the ANU College of Law’s Workshop on Common Law Forms in Civil Law Asia (2024), the 5th Asia Pacific Private Law Conference. He commits himself to fostering legal certainty for investors and businesses in comparable developing economies.
