CYIL vol. 15 (2024)

LANH DINH CAO, TRINH THI HONG NGUYEN 4. Exploring the rationales

The judgments studied thus by far have been remarkable because of their ability to vividly illustrate the Vietnamese courts’ interpretation of its grounds for international jurisdiction. However, compared to Chinese courts 17 or the courts of an ASEAN country like Indonesian, 18 the Vietnamese practice appears much more restricted both in the reasoning and explanation of the courts on its basis of jurisdiction. Several factors might have contributed to this result. First, the plaintiff usually chooses to sue in Vietnam when the defendant has assets here or the place of performance of the contract is in Vietnam. 19 Therefore, most of the time, the defendant is Vietnamese. The court can easily find itself having jurisdiction based on the traditional and popular ground of jurisdiction wherein the defendant has a place of residence in Vietnam. This ground is duplicated for domestic and international jurisdiction and the judges might find no need to consult the international one. Second, the number of commercial contract cases handled by Vietnamese courts has recorded a decrease. 20 Therefore, the court generally has fewer chances to illustrate codified bases of jurisdiction. In addition, the length of the judgments of Vietnamese courts is usually short and the reasoning therein is condensed. The courts usually cite the number of the articles in the codes and laws but rarely explain how they are applied in that concrete set of facts. The decision part of the judgment typically provides for measures usually imposed on the losing party and starts with the word ‘obligate’/ ‘ buộc ’ which requires that party to implement a duty. This phrasing makes the courts judgments imperative and harsh, however, the intention is to highlight the dispute settlement rather than the application and the interpretation of the law. Arguments of the parties are usually not recorded in the judgments, except for cassation review decisions. We do not know whether the defendant opposed the jurisdiction that the court seized and if so, what their opinions were. Regarding the template of judgments, a Resolution of the Supreme Court 21 requires that the court has to address the parties’ arguments and submissions. However, in practice, judgments usually address the parties’ arguments and submissions, if any, in a short and general manner. For international jurisdictional grounds, there has been no case found wherein the court addresses the parties’ arguments on the issue. 17 See for example, HE QISHENG, Chronology of Practice: Chinese Practice in Private International Law in 2020, Chinese Journal of International Law , Volume 20, Issue 3, September 2021, Pages 581–623, https://doi. org/10.1093/chinesejil/jmab031. 18 See PENASTHIKA, P. (2022). Unravelling Choice of Law in International Commercial Contracts: Indonesia as an Illustrative Case Study. [Doctoral Thesis, Erasmus University Rotterdam]. 19 NGUYEN CHI CONG and PHAM THI HANG, Một số kinh nghiệm và bài học cho Việt Nam trong việc hỗ trợ các tòa án xét xử các tranh chấp hợp đồng thương mại quốc tế có hoặc không có điều khoản lựa chọn pháp luật [Some experiences and lessons for Vietnam in assisting the courts adjudicating international contractual disputes having or not choice of law clause], Conference proceedings: Necessary and sufficient conditions to apply foreign law in civil trial in Vietnamese courts , 218-232, 220. 20 Id, 218: Statistic from the Supreme People’s Court indicates that from 2016 to June 2019, People’s courts of first instance in the country had solved 297 cases of international commercial contract disputes and the number of cases witnessed a decrease. This data also resonates with the fact that there were no cases found published on the Portal of Ho Chi Minh City and Hanoi City Court in 2021 and 2022. 21 Resolution No 01/2017/NQ-HĐTP dated 13 Jan, 2017 of Judges’ Council of Supreme People’s Court.

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