CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ JURISDICTION OF VIETNAMESE COURTS IN INTERNATIONAL COMMERCIAL… Practically, after receiving the petition, a Judge shall be assigned to consider whether the case falls under the jurisdiction of the Court. This step applies indifferently to domestic or international cases. The CPC does not oblige or enable the judge to open a meeting for the parties to provide their opinions on the court’s jurisdiction. Although the law does not prohibit it, there has been no procedure recorded for the judge to consult the parties on their stances on its jurisdiction, even if that was international. In addition, according to the Bench book of the Supreme People’s Court of Vietnam, the assigned judge shall handle the jurisdiction issue in accordance with the following three factors: (i) Jurisdiction of the Courts to resolve a civil case should be determined on the basis of Articles 25, 27, 29 and 31 of the CPC, (ii) Jurisdiction of the Courts of different levels should be determined on the basis of Article 33 and Article 34 of the CPC and (iii) Territorial jurisdiction of the Courts or choice of jurisdiction by the parties should be determined on the basis of Article 35 and Article 36 of the CPC. 22 None of the three issues mention international jurisdiction and its corresponding CPC articles, Art 469 and 470. Literally, this Bench book only provides a guide for domestic jurisdiction. Judges are not inclined to consider international jurisdiction as a separate step, and it seems like international jurisdiction for civil cases should be guided elsewhere. In fact, the Supreme Court has produced a series of Resolutions and Conclusion Reports and a yearly collection of typical cases with comments and instructions to provide guidelines for the uniform application of law to adjudication by summarizing application of laws and supervising adjudication. 23 However, these guidelines have not yet covered the specific issue of international civil jurisdiction as none of them touch upon the matter. In 2019, the Supreme Court published a version of a Draft Resolution which cements several provisions of the CPC. For example, with regard to choice of court agreement, it establishes that the parties can choose a Vietnamese court to have exclusive jurisdiction over their contractual disputes, but that court should have general jurisdiction to be eligible to be chosen. 24 In another example considering general jurisdiction (formulated in Art 469.1.a) over foreign residing, working and living in Vietnam, the guidelines require them to summit a permanent residence card, a temporary residence card, or a visa exemption paper valid for no less than five years. 25 Although the resolution sheds light on many issues, it cannot replace the role played by concrete decisions of courts for the sake of development of law, efficiency and transparency. Moreover, the resolution took an unconventionally prolonged time of to be passed into law. This implies that the SPC encountered difficulties in drafting and concluding on a legislative document that requires extensive research and technical input, especially when it is newly developed for a country in transition. Apart from that, the intentions of the lawmakers behind the legal provisions are not really clear. This situation has already been improved in the making of many other areas of law in Vietnam, like land law or company law. In international civil adjudication, however, huge challenges remain. Many provisions of the CPC on international civil procedures and the

22 http://www.asianlii.org/vn/other/benchbk/81-en.html. 23 Article 21 of the Law on Promulgation of Legal Normative Documents. 24 Draft Resolution 2019 Art 3.2.a. 25 Art 2.1.b.

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