Jurisdiction of vietnamese courts in business, commerce cases with foreign elements in relation with laws of some countries in the world

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. 9 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 10 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: 11 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. 12 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). 13 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 14 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 15 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. 16 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. 17 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