1. Non-Solicitation Clauses in Commercial Contracts
Under Vietnamese law, non-solicitation of employee clauses—where parties agree not to poach or recruit each other's employees—are generally permissible when included in commercial contracts. There is no statutory prohibition against such provisions in the context of business-to-business agreements. In fact, the Civil Code of Vietnam affirms that any agreement or commitment between parties is legally valid and binding, provided it does not contravene the law or violate social ethics.
From a practical standpoint, non-solicitation clauses are commonly found in various commercial arrangements, such as service contracts, joint ventures, outsourcing agreements, and strategic partnerships. These clauses are often used to protect human resources and prevent unfair competition, especially in industries where talent mobility is high.
Based on our professional experience, we have not encountered any court decisions in Vietnam that invalidate non-solicitation clauses in commercial contracts. This suggests that, in practice, such provisions are generally respected and enforceable, assuming they are clearly drafted and mutually agreed upon.
2. Non-Solicitation Clauses in Employment Relationships
The legal treatment of non-solicitation clauses becomes more nuanced when they are applied within the context of employment relationships—specifically between an employer and its employees. In such cases, it is advisable to include the non-solicitation clause in a separate agreement (such as a non-disclosure agreement or post-employment covenant), rather than embedding it directly within the labor contract.
This distinction is important because labor contracts are governed by the Labor Code, which prioritizes the protection of employee rights. If a non-solicitation clause is inserted into a labor contract, it may be subject to scrutiny under labor law principles, particularly the employee’s statutory right to freely choose employment and work location, as guaranteed by Vietnamese labor legislation.
By contrast, when the non-solicitation clause is executed as part of a separate civil agreement—outside the scope of the labor contract—it is treated under the Civil Code framework. This allows the parties greater flexibility to negotiate and define the terms, provided the agreement does not breach legal prohibitions or offend public morality. This approach has been tested and upheld by Vietnamese courts, including in a published court precedent, which recognized the validity of such civil agreements between employers and employees.
Conclusion
In summary, non-solicitation clauses are legally viable in Vietnam when properly structured. In commercial contracts, they are widely accepted and enforceable. In employment contexts, careful drafting and separation from the labor contract are essential to ensure compliance with labor laws and to preserve enforceability. As always, legal advice should be sought to tailor these clauses to the specific business context and to mitigate potential risks.
