CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ JURISDICTION OF VIETNAMESE COURTS IN INTERNATIONAL COMMERCIAL… People’s Court on recognition and enforcement of foreign judgment, 12 the Court refused to recognize a judgment of the Korean High Court of Seoul regarding a contract of transferring contributed capital of a company headquartered in Vietnam. As the appellate court, the Ho Chi Minh City High Court agreed and reasoned that the contract involved the transfer of land use rights and factory machinery and equipment, therefore the lawsuits fall within the exclusive jurisdiction of Vietnamese courts according to Art 470.1.a 13 . It is evident that the court interpreted these grounds of jurisdiction in a quite an extended manner. Although the dispute arose from a contract of transferring contributed capital of a company headquartered in Vietnam, it still fell into exclusive jurisdiction of a Vietnamese court because the capital of the company is constituted of land use rights in Vietnam. This ruling suggests that in the future, contracts involving the transfer of shares or contributed capital of a company in Vietnam, which has land use rights and immovable charter capital, should only be heard by Vietnamese courts. Vietnamese courts can also exercise exclusive jurisdiction when the parties choose a Vietnamese Court to exclusively adjudicate their contractual disputes. This ground of exclusive jurisdiction is enshrined in Art 470.1.c of the CPC 2014 and Draft Resolution 2019 14 . At the same time, the choice of a foreign court to adjudicate contractual disputes has been allowed for in the Maritime Code 2015 15 . However, concrete cases that showcase this feature have not been found. With regard to the attitude of Vietnamese courts on the parties’ choice of a foreign court, Art 470.1.c has not directly provided for this aspect since it is a provision designated to assume jurisdiction of Vietnamese courts. Furthermore, Art 472 of the CPC 2015 grants parties the right to choose a foreign court by regulating that Vietnamese courts shall return the petition of the lawsuit when the parties have chosen a foreign court to settle their case. The authors have made an effort to search for decisions of Vietnamese courts applying this rule. Only two cases were found, which occurred in 2007 and 2008 and were recorded in an academic article 16 , which Ho Chi Minh City Court respected the parties’ choice of foreign courts. More recent illustrative cases cannot be found. 12 Appellate Decision No. 28/2020/QDKDTM-PT dated June 29, 2020, of the High Court in Ho Chi Minh City (dispute between Oh and S Company Limited). 13 Article 470. Exclusive jurisdiction of Vietnamese Courts “1. The following civil lawsuits involving foreign elements shall fall under the exclusive jurisdiction of Vietnamese courts: a) Civil lawsuits involving rights to properties being immovable in the Vietnamese territory; […]” 14 Draft Resolution 2020 is entitled ‘Guiding the Implementation of the Civil Procedure Code Regarding Competence and Procedures for Settlement of Civil Cases Involving Foreign Elements’. The Vietnamese version is available online: https://vbpq.toaan.gov.vn/webcenter/portal/htvb/chi-tiet-vbdt?dDocName=TAND081751. The Draft Resolution 2020 is expected to be approved in the near future. 15 Art 5.2. 16 Decision No 1810/2007/QĐST-KDTM dated 26 September 2007 of the People’s Court of Ho Chi Minh City; Decision No 2065/2008/QĐĐC-KDTM-ST dated 19 December 2008 of the People’s Court of Ho Chi Minh City. These two cases are discussed in DO VAN DAI and TRAN VIET DUNG, ‘ Về Thỏa Thuận Chọn Tòa án nước ngoài ’ [‘Regarding Choice of Foreign Court Agreements’] (2012) 6 Tạp chí Khoa học Pháp lý [ Vietnamese Journal of Legal Science ] 60.

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