CYIL vol. 15 (2024)

LANH DINH CAO, TRINH THI HONG NGUYEN the court assumed jurisdiction based on the place of performance of the contract, which was in Vietnam (the unloading port was Ho Chi Minh Port), citing Art 469.1.dd of the CPC 2015. This case also informs on how the Vietnamese courts interpret the notion of the place of performance of a sale contract as the location of the unloading port. The suit was filed to request payment on the contract. Therefore, for the Vietnamese court in this case, the place of performance of a sales contract as the grounds for international jurisdiction does not need to necessarily be the place of loading, which is typically the place of the characteristic performance of the contract. Furthermore, it neither needs to be the place of the performance of the obligation in dispute. Further explanation is this case that illustrate discretion of Vietnamese court in case against foreign defendants…, extending its jurisdiction… In Judgment No 973 /2018/KDTM-ST, dated 20 July 2018 regarding disputes on an insurance contract between a Vietnamese plaintiff and a Korean defendant, the court ruled that if the contract can be partially performed in Vietnam, a Vietnamese court may exercise jurisdiction according to Art 469.1.dd. This case is also the first time the court upheld an ambiguous ground of international jurisdiction codified in Art 469.1.e, holding that it has jurisdiction when the case involves the rights and obligations of Vietnamese agencies, organizations and individuals that are headquartered or reside in Vietnam. The basis of this specific jurisdiction is vague and it was not officially explained by the legislature. 9 T he interpretation of the grounds of jurisdiction in this case suggests that Vietnamese courts are quite flexible in extending its jurisdiction to international civil cases, as long as the disputes relate to the interests of Vietnamese people and companies. 10 This Discretion of the court in this matter seems to be extraordinary compared to the restrictive and hesitated approaches to jurisdiction that Vietnamese courts have portrayed and acknowledged. Instead, the French law tradition appears to remain in this respect. 11 3. Exclusive jurisdiction It is noteworthy that all the judgments collected were on general jurisdiction. There was no judgment found in the search wherein the court assumes exclusive jurisdiction. However, the authors acknowledge one case of indirect jurisdiction where the courts have had chances to assume exclusive jurisdiction. In one judgment of Ho Chi Minh City 9 Intention not found in the Supreme People’s Court, ‘Explanatory Report of Civil Procedure Code Project’ (10 April 2015), file with authors. 10 PHAM, Ho Huong and HOANG, Ngoc Bich. “An Overview of Vietnamese Private International Law”. Yearbook of Private International Law. Vol. XVIII – 2016/2017, edited by BONOMI, Andrea and ROMANO, Gian Paolo. Köln: Verlag Dr. Otto Schmidt, 2018, pp. 341–370. https://doi.org/10.9785/9783504385637 016, 9: the jurisdiction base should provide Vietnamese people the last resort if the foreign courts or authorities refuse to handle the cases which directly affect their rights and obligations. 11 ANH TUAN TRAN (ed), Bình lu ậ n khoa h ọ c B ộ lu ậ t t ố t ụ ng dân s ự [Commentary on the Civil Procedure Code] (Hanoi, Nhà xuất bản Tư pháp [Judicial Publishing House], 2018) 1007. Interestingly, according to this popular commentary, ‘this ground of jurisdiction would enable Vietnamese courts to assume jurisdiction over cases concerning civil relations which are established, changed, or terminated in Vietnam’s contiguous areas, exclusive economic zones, and continental shelf, including maritime disputes. Examples are claims for damages caused by ship and fishing vessel collision, salvage or rescue of ships. This provision helps to protect the country’s sovereignty in the aforesaid areas, as well as provide Vietnam with a basis for taking part in cases relating to sovereignty over the relevant areas before international tribunals.’

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