CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ JURISDICTION OF VIETNAMESE COURTS IN INTERNATIONAL COMMERCIAL… 2. Analysis of the Judgments Most of the judgments found in the survey are concerned with international sales contracts; this resonates with Vietnam’s role as a country of production in the global chain values. However, the court did not address the international character of the case in any of the judgments that were studied. The judgments were in fact selected based on the information of the plaintiff and/or the defendant being foreign (having an address in a foreign country). Under Vietnamese law, the internationality of a contract has not yet been clarified by the courts. Legal literature usually refers to the foreign elements of a civil case prescribe in Art 663 of the Civil Code 2015 to deduce an international contract as that the contract having foreign party, the event of signing, performing or liquidating occur abroad or the object of the contract is abroad. However, the court however has never confirmed this interpretation. As it concerns the international character of the contract based on the foreign party, Article 23 of the Law on Investment 2015 expanded the definition of international contracts to include those signed by at least one legal entity that has foreign investments. Those contracts enjoy internationality since the parties are entitled to choose foreign law 7 and foreign arbitration. 8 Again, the court has never clarified these rules in its judgments. In fourteen of the judgments that were studied the courts did not even mention any CPC provision that concerns international jurisdiction. Courts have assumed their jurisdiction based on the defendant’s residency in Vietnam, and only cited articles of domestic jurisdiction from Chapter III of the CPC 2015 to explain their assumption. Consequently, the courts bypass the necessary step of confirming international jurisdiction as required in Art. 469.2 of the CPC 2015, which states: “ When the jurisdiction of Vietnamese Courts have been determined according to provisions of this Chapter, the Court shall base themselves of provisions of Chapter III of this Code to determine their specific jurisdiction to resolve the civil case involving foreign elements.” In doing so, the courts have treated those international contracts as if they were purely domestic. In two judgments, courts cited Art 469 CPC 2015 but did not specify the clause. Although the courts might have to assume jurisdiction based on the location of defendant’s headquarter in Vietnam, as provided for in Art 469.1.b CPC, the grounds of general jurisdiction used in the case has never been clear. It seems that the court has only resorted to the rules of international jurisdiction prescribed by Art 469.1.dd and e when the defendants were foreigners. Whenever the defendants were Vietnamese individuals or entities, the courts resorted directly to domestic jurisdictional grounds. It seems that the judges were still more comfortable using domestic jurisdictional grounds rather than international jurisdictional rules. Even more recent judgments from the 2020s do not show many differences in treatment from the courts. Of the three provincial courts, Ho Chi Minh City Court’s judgments illustrate more uses of international jurisdiction and therefore, inform on a more diversified practice of the rules. Meanwhile, the judgments of the other two courts were conservative, as they have never bothered themselves with the international jurisdictional rules of Art 469 in any of the four relevant judgments.” To illustrate, Ho Chi Minh City People’s Court has assumed jurisdiction in cases against foreign defendants. In Judgment No. 1177/2019/KDTM-ST dated 18 Sep 2019 regarding disputes on a sales contract between a Singaporean plaintiff and a Hong Kong defendant,

Art 4.4 Law on Investment 2014. Art 14.3 Law on Investment 2014.

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