Agreement on choice of Courts is completely independent with the contract. The
amendment, renewal, cancellation of countract, invalidity of contract or inability to perform
the contract do not invalidate the agreement on choice of Courts except agreement on choice
of Courts is invalid or unable to perform in accordance with the laws of the country having
the Courts of choice.
Fifth, point c clause 1 Article 470 needs to be compatible with regulations allowing
parties to choose Vietnamese Courts in Investment Law, Civil Aviation Law, Marine Code etc.
Therefore, regulations on identification of jurisdiction of Vietnamese Courts in specialized laws
such as Investment Law, Civil Aviation Law, Marine Code etc need to be omitted, and these
regulations should be included in general provisions of the CPC to avoid the situation that these
regulations are sporadic in many different legal instruments
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hes relating to theoretical basis on jurisdiction of the Courts in
business, commerce cases with foreign elements
Currently, basic theoretical issues on jurisdiction of the Courts in civil cases with
foreign elements are comprehensively and thoroughly researched. These works, by and large,
are recognized in legal science on the theoretical and practical aspects such as concept of civil
cases with foreign elements, conflict of law, criteria for identifying jurisdiction of the Courts
in private international law etc. The works point out concept of jurisdiction of the Courts in
civil cases with foreign elements, concept of resolving business, commerce disputes with
foreign elements etc.
1.1.2.2. Researches relating current conditions on jurisdictions of the Courts in
business, commerce cases with foreign elements
The issues of current condition of the laws and application practice of general
jurisdiction and specific jurisdiction of Vietnamese Courts in business, commerce cases with
foreign elements are much paid attention to by scholars through their works. These works of
both domestic and international scholars have much reference values for the Author during
the research and develop arguments in order to propose solutions for completion of the laws
on jurisdiction of Vietnamese Courts in business, commerce cases with foreign elements.
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1.1.2.3. Researches relating to solutions for completion on jurisdiction of the Courts in
business, commerce cases with foreign elements
Regarding recommendations, solutions for completion of the laws on jurisdiction of the
Courts in business, commerce cases with foreign elements, some works introduce solutions
for amendment of regulations of the laws on general and specific jurisdiction such as the
criteria that the defendant has asset(s) in Vietnamese territory or jurisdiction of the Courts
based on the agreement of the parties etc. So arguably, at different level, the above works
have analyzed, commented on the value of the regulations as well as application practice of
the laws to identify jurisdiction of the Courts in business, commerce cases with foreign
elements in Vietnam and some other countries in the world.
1.2. General assessment on the research
1.2.1. Research achievements
First, basic theoretical issues on jurisdiction of the Courts in civil cases with foreign
elements are comprehensively and thoroughly researched. Second, the above works have
analyzed and commented on regulations of the EU in general, China, England, and France in
particular on jurisdiction of the Courts in civil, commerce cases with foreign elements,
recognition and implementation of judgments, decisions of foreign Courts. Third, the works
above, especially of international scholars also point out shortcomings of the laws under legal
perspective and from real cases; and recommendations for completion of the laws. Fourth,
solutions for completion of the laws on jurisdiction of the Courts are introduced.
1.2.2. The need to continue to research on jurisdiction of the Courts in business,
commerce cases with foreign elements
1.2.2.1. Remaining shortcomings
First, there is no specific concept on jurisdiction of Vietnamese Courts in business,
commerce cases with foreign elements. Second, there has not been an overview assessment on
legal framework on jurisdiction of Vietnamese Courts in business, commerce cases with foreign
elements in comparison with international treaties, foreign laws; the issue of recognition and
implementation of judgments of foreign Courts; awards of foreign arbitration; Third, when
assessing current conditions of the laws and practice of the Courts, these assessments are still not
foreseen potential issues which might occur in the future.
1.2.2.2. The issues that the Dissertation continue to research and complete
First, build theoretical basis for the development of regulations on jurisdiction of
Vietnamese Courts in business, commerce cases with foreign elements
Second, the Dissertation will continue to research Vietnamese current laws as well as
international treaties that Vietnam is a member in comparative relation with foreign laws to
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show the advantages and disadvantages of the law on jurisdiction of the Courts, at the same
time, withdraw learning lessons for Vietnam.
Third, the Dissertation points out shortcomings of the laws on jurisdiction of the Courts
in business, commerce cases with foreign elements.
Fourth, the Dissertation proposes recommendation to complete laws on jurisdiction of
Vietnamese Courts in business, commerce cases with foreign elements and solutions to
enhance effectiveness of application of the laws in practice.
1.3. Research questions and research hypotheses
1.3.1. Research questions
Research question 1: What is business, commerce and business, commerce cases with
foreign elements? What does it include in the scope of jurisdiction of the Courts in business,
commerical cases with foreign elements? What are the differences between business,
commerce cases with foreign elements and other types of cases?
Research question 2: What are the repercussions in case Vietnamese Courts incorrectly
identify the jurisdiction to the parties as well as to competitiveness of Vietnamese Courts in
the process of integration and international business relations?
Research question 3: What are the advantages and disadvantages of current Vietnamese
laws? What are the similarties between Vietnamese laws and laws of some other countries?
What should be learned from experiences in the laws of foreign countries?
Research question 4: Are the regulations of Vietnamese laws on jurisdiction of the
Courts in business, commerce cases with foreign elements appropriate? What are the
shortcomings in Vietnamese laws on jurisdiction of the Courts in business, commerce cases
with foreign elements? What are the causes of these shortcomings?
Research question 5: In comparison with laws of foreign countries and from the current
conditions of Vietnamese laws, what are the solutions to overcome shortcomings in
Vietnamese laws on jurisdiction of Vietnamese Courts in business, commerce cases with
foreign elements as well as to supplement, amend and complete legal systems to be suitable
with the current development and international economic integration?
1.3.2. Research hypotheses
Research hypothesis 1: Business, commerce with foreign elements are particular
activities relating to subjects, headquaters etc in different countries. The concept of business,
commerce with foreign elements is still understood differently in legal science. Thereofre,
there is not yet a unified concept on business, commerce cases with foreign elements. So, the
Author will analyze and propose opinion based on theoretical and practical basis to clarify the
following issues:
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Theoretically: Develop relating concept, suitable with the essence of the issues of the
research; reflect objectively and comprehensively contents of the issues of the research of the
Dissertation. Develop the most comprehensive concept on jurisdiction of Vietnamese Courts
in busines, commerce cases with foreign elements.
Research hypothesis 2: The particulars of business, commerce cases with foreign
elements is that it often involves at least two countries. When parties start to bring a case to
the Court of one country, the Court of that country will check whether the case falls into its
jurisdiction before accept the case. One of the current issues is that the regulations need to be
broaden the jurisdiction of the Courts of the country, also make it convenient for parties in
commerical relationships with foreign elements to choose Vietnamese Courts to solve the
disputes but also need to ensure national interests, the right of agreement to choice the Courts
of the parties, enhancing reputation of dispute settlement mechanism by Vietnamese Courts in
international community.
Research hypothesis 3: Based on analysis on shortcomings of substantive laws, as well
as in comparison with the laws of some other countries, the Author will clarify similarties and
shortcomings of Vietnamese substantive laws on jurisdiction of Vietnamese Courts in
business, commerce cases with foreign elements. To clarify this issue, the Author finds it
necessary to assess comprehensively current legal framework on the issues of research. To
withdraw learning lessons for Vietnam when comparing with laws of foreign countries so that
to have a general view on the issues of research as well as to foresee potential possibility in
the future to propose solutions to complete the laws.
Research hypothesis 4: Different from civil cases with foreign elements, business,
commerce cases with foreign elements have their own particulars which are the purpose for
profits of the parties. Therefore, the number of cases that these parties agree to choose
Vietnamese Courts to settle their disputes might be increasing. Therefore, the Author finds
that legal framework on jurisdiction of Vietnamese Courts need to be in unity and
harmonization with the laws of other countries and to satisfy the demand of current judicial
reform. To do this, the causes of the shortcomings need to be identified, the Author considers
that besides shortcomings of the laws, shortcomings on the adjudication, capacity etc are also
need to be assessed comprehensively.
Research hypothesis 5: Based on assessment of the current conditions and research of
Vietnamese laws in comparative relations with laws of some other countries, the Author will
continue to research and propose solutions to complete legal system of Vietnam, enhancing
effectiveness of application of the laws on jurisdiction of Vietnamese Courts in business,
commerce cases with foreign elements.
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CONCLUSION OF CHAPTER 1
Overview research of related works on the research issues of the Dissertation is
significant in developing concepts as well as in proposing recommendations to complete the
laws on jurisdiction of the Courts in business, commerce cases with foreign elements of the
Dissertation. Works researching on jurisdiction of the Courts in private international law are
conducted with different approaches therefore, the opinions will be of great reference and
inheritance.
Chapter 2
THEORETICAL ISSUES ON JURISDICTION OF THE COURTS IN BUSINESS,
COMMERCE CASES WITH FOREIGN ELEMENTS
2.1. Concept, characteristics and scope of jurisdiction of the Courts in business,
commerce cases with foreign elements
2.1.1. Concept of jurisdiction of the Courts in business, commerce cases with foreign
elements
Business, commerce are activities with the profit purpose, carried out by business
persons. Business, commerce cases with foreign elements are cases relating to profit purpose
between parties with different nationalities or headquarters in different countries; or the
establishment, change, implementation, termination of business relations occur abroad; or the
objects of the business, commerce relations are abroad.
Therefore, the Author finds that: Jurisdiction of Vietnamese Courts in business,
commerce cases with foreign elements is the collection of legal power of Vietnamese Courts
according to national laws or international treaties for considering to accept, to solves cases
related to activities with profit purpose between parties with different nationalities or business
headquarters in different countries, or the establishment, change, implementation, termination
of business relations occur abroad; or the objects of the business, commerce relations are
abroad and to make decisions to legal matters of the cases in accordance with civil procedures
stipulated by Vietnamese laws.
2.1.2. Characteristics of jurisdiction in business, commerce cases with foreign
elements of Vietnamese Courts
First: There are different grounds to identify jurisdiction of the Courts in business,
commerce cases with foreign elements (depends on laws of each nation whether it is
identified based on priority order or based on application of each criterion).
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Second: Judgments, decisions of Vietnamese Courts might not be recognized and
implemented in territories of other countries or in other words judgments, decisions of
Vietnamese Courts are only warranted to be implemented in Vietnamese terrritory.
Third: The Courts might apply international treaties, international trade practice or
foreign laws to settle business, commerce disputes with foreign elements.
Besides, the procedures to solve business, commerce cases with foreign elements are
often complicated, the time limits might be prolonged because the Courts shall need to
implement activities of letter rogatory or identifying the laws to be applied etc.
2.1.3. Scope of jurisdiction of the Courts in business, commerce cases with foreign
elements
2.1.3.1. Jurisdiction of the Courts in business, commerce cases with foreign elements
In general, jurisdiction of the Courts of many countries in the world in business,
commerce cases with foreign elements is divided as general jurisdiction and specific
jurisdiction. General jurisdiction is jurisdiction in cases that the Courts of one country are
entitled to handle but the Courts of other country can also handle; Specific jurisdiction is
jurisdiction of the Courts claimed by the host country that only the Courts of that country are
entitled to handle in specific cases.
2.1.3.2. Jurisdiction of the Courts in recognition and implementation of judgments,
decisions in business, commerce cases of foreign Courts
A judgment, decision of the Courts of one country is identified as judgment, decision of
foreign Courts in another country. Therefore raise the issues of recognition and
implementation judgments, decisions of foreign Courts because these judgments are only
effective in the territory of the country which the Courts make the judgments and are effective
in other country only when the other country recognize the legality of the judgments.
2.1.3.3. Jurisdiction of the Courts in the settlement of disputes by arbitration in
business, commerce disputes with foreign elements
+ Jurisdiction of the Courts in activities of Arbitration
Matters relating to activities of commercial arbitration of Vietnam which fall into
jurisdiction of the Courts include: Appoint, replace arbitrators; Apply, change, rescind
provisional measures; Rescind Arbitration awards; Handle complaints about decisions of
Arbitration council on invalid arbitration agreement, unenforceable arbitration agreement,
jurisdiction of Arbitration council; Collect evidences; Summon witnesses; Register arbitration
award; Other civil matters stipulated by the laws on commercial arbitration of Vietnam.
+ Jurisdiction in recognizing and implementing awards of foreign Arbitration
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2.2. Conflict of jurisdictions, principles and meaning of identifying jurisdiction of
the Courts in business, commerce cases with foreign elements
2.2.1. Conflict of jurisdiction in private international law
Conflict of jurisdiction (or conflict of law) is the situation in a business, commerce case
with foreign elements, when jurisdiction bodies of two or more countries can handle the case.
2.2.2. Principles to identify jurisdiction of the Courts in business, commerce cases
with foreign elements
Jurisdiction principle is of great necessity in judicial cooperation activities among
countries to unify conflict of jurisdiction principle and to achieve a quick and simple dispute
settlement mechanism.
- Identify jurisdiction in business, commerce cases with foreign elements of the Courts
based on nationalities of the parties
- Identify jurisdiction in business, commerce cases with foreign elements of the
Courts based on “place of domicile”, “place of permanent residence” of the parties (the
relation with the country of the Courts)
- Identify jurisdiction in business, commerce cases with foreign elements of the Courts
based on the agreement of the parties
- The relation of the dispute with the territory of the Courts
2.2.3. The meaning of identifying jurisdiction in business, commerce cases with
foreign elements of the Courts
First, to avoid multiple repetitions in adjudication of a business, commerce case with
foreign elements, also to help the parties to easily identify which jurisdiction (the Courts) of
the country will handle the case
Second, to contribute to the protection and affirmation of the sovereignty of Vietnam
and enhance friendship cooperation relationship with other countries in private international
law
Third, identify jurisdiction of Vietnamese Courts in business, commerce cases with
foreign elements also means that procedural laws of the country of the Courts are applied and
has a close relation with other particular factors such as application of foreign laws,
international MLAT
2.2.4. Method to solve conflict of jurisdiction in business, commerce cases with
foreign elements
In order to solve conflict of jurisdiction, countries nowadays often conclude multilateral
or bilateral international treaties which include provisions on solving conflict of jurisdiction
of national Courts. In case there is no international treaty, countries often resort to national
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laws to identify jurisdiction of the national Courts in business, commerce cases with foreign
elements (criteria to identify jurisdiction of the Courts of each country are often nationalities
of the parties, place of domicile of defendant etc). Currently, the solving of the issue of
conflict of adjudication (to avoid parallel litigation) is based on two theories Lis Pendens and
Forum Non Conveniens to develop regulations to identify jurisdiction in business, commerce
cases with foreign elements
2.3. Development process of Vietnamese laws on jurisdiction of the Courts in business,
commerce cases with foreign elements
Prior to CPC 2015 and Civil Code in 2015, legal instruments on jurisdiction in civil
cases with foreign elements in general and in business, commerce cases with foreign elements
in particular are regulated sporadically, unsystematic and limited. Since 2004, with the
promulgation of CPC 2004, regulations on jurisdiction of the Courts are gradually more
developed. To 2015 with the replacement of the Civil Procedure Code 2004 with the Civil
Procedure Code 2015, regulations on identification of jurisdiction in business, commerce
cases with foreign elements have significant development. The CPC 2015 provides a more
complete and advanced regulations on jurisdiction in business, commerce cases with foreign
elements.
2.4. Source of laws in identifying jurisdiction of Vietnamese Courts in business,
commerce cases with foreign elements
Sources of law to identify jurisdiction of the Courts in business, commerce cases with
foreign elements have significant meaning. It enables the legalization of national laws and
development of regulations on jurisdiction of the national Courts, which are suitable and
foreseeable to future situations.
CONCLUSION OF CHAPTER 2
In order to shed lights on basic theoretical issues on jurisdiction in business, commerce
cases with foreign elements, the Author researches, analyzes, assesses and synthesizes
opinions of researchers based on current articles, laws and regulations. Based on that, the
Author introduce concepts, characteristics on business, commerce cases with foreign
elements, jurisdiction of the Courts in business, commerce cases with foreign elements;
clarify conflict of jurisdiction in business, commerce cases with foreign elements, criteria and
meaning of identifying jurisdiction of the Courts.
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Chapter 3
CURRENT CONDITIONS ON JURISDICTION OF VIETNAMESE COURTS IN
BUSINESS, COMMERCE CASES WITH FOREIGN ELEMENTS IN
COMPARATIVE RELATION WITH LAWS OF SOME
OTHER COUNTRIES IN THE WORLD
3.1. Current conditions on general jurisdiction and specific jurisdiction of
Vietnamese Courts in business, commerce cases with foreign elements in comparative
relation with laws of some other countries in the world
3.1.1. Current conditions on general jurisdiction and specific jurisdiction of
Vietnamese Courts in business, commerce with foreign elements in International treaties
First, on identifying jurisdiction of the Courts in business, commerce cases with foreign
elements, Vietnam has just concluded bilateral MLATs but not yet multilateral MLATs;
Second, MLATs that Vietnam is a signatory with other countries do not cover some popular
civil relations with foreign elements, do not cover all of the issues. Whereas MLATs are
developed to apply in specific cases and only apply to signatory parties. However, during the
research, the Author does not find any judgments, decisions on business, commerce cases
with foreign elements that Vietnamese Courts cite provisions of MLAT to identify
jurisdiction of Vietnamese Courts.
3.1.2. Current conditions on general jurisdiction and specific jurisdiction of
Vietnamese Courts in business, commerce cases with foreign elements in accordance with
current laws and in comparative relation with the laws of some other countries in the world
First, point a clause 1 Article 469, Vietnamese law applies criteria “domicile, business,
permanent residence” which make this provision ambiguous and complicated. Because, these
concepts are not yet clarified in any regulations of Vietnamese laws, not suitable with
international treaties.
Second,in point c clause 1 Article 469 the criterion “defendant has asset(s) in the
territory of Vietnam” is used to identify a business, commerce case with foreign element
which falls into general jurisdiction of Vietnamese Court without any other criteria to identify
the connection of the case with the territory of the Courts (Vietnam), which makes this
provision justified. In this case, value of the asset might be too small, therefore the defendant
might not participate in litigation procedures in Vietnam, and the plaintiff might not be
interested in pursuing the case. So in this case, interests of both the plaintiff and the defendant
are not warranted when participating in litigation procedures at Vietnamese Courts.
Third, in the CPC 2015, at point c clause 1 Article 470 allows parties to agreement to
choose Vietnamese Courts to solve business, commerce cases with foreign elements.
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However, the scope for the parties to choose Vietnamese Courts is limited because agreement
to choose Vietnamese Courts in case Vietnamese laws or international treaties that Vietnam is
a signatory allow to choose Vietnamese Courts.
Fourth, regulation at point c clause 1 Article 470 only allows specific jurisdiction of
Vietnamese Courts in case the parties agree to choose Vietnamese Courts. However, the CPC
2015 has not yet regulated on the formality and time of agreement to choose the Courts to
identify specific jurisdiction of Vietnamese Courts.
Fifth, regulations on jurisdiction of the Courts in civil cases with foreign elements are
sporadic in different legal instruments such as Investment Law, Commercial Arbitration Law,
Civil Aviation Law, Marine Code etc without unified regulations in a particular procedure
legal instrument such as the CPC
Sixth, the CPC 2015 has no regulations on specific jurisdiction of Vietnamese Courts in
the area of intellectual property
Seventh, the civil procedure laws of Vietnam do not have direct governing regulations
allowing parties to choice of Courts agreement for business, commerce cases with foreign
elements.
3.2. Current conditions on jurisdiction of Vietnamese Courts in recognition and
implementation of judgments, decisions in business, commerce cases of foreign Courts in
Vietnam
First, currently, the CPC 2015 lacks definition of judgments, decisions of foreign Courts
leading to difficulties in application of the Courts
Second, regarding the right to request for recognition and jurisdiction of the Courts to
judgments, decisions of business, commerce cases of foreign Courts, Article 425 regulates
that organizations, individuals who are judgment debtors, must have “main office” in
Vietnam, but Article 39 of the CPC 2015 regulating on the jurisdiction of the Courts in
recognition and implementation of judgments, decisions in business, commerce cases of
foreign Courts stipulates that the Court having jurisdiction is the Court where the
organizations have “office” in Vietnam, and do not need to be “main office”. Therefore,
regulation in Article 425 is inappropriate with current general regulati
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