how to determine the court in resolving a civil conflict with foreign factors

Civil cases with foreign factorsA civil procedure with foreign factor is a civil affair which belongs to one of the following cases: Has at least one of the participants who is a foreign

HO CHI MINH CITY UNIVERSITY OF EDUCATIONHISTORY DEPARTMENT

HOW TO DETERMINE THE COURT IN RESOLVING ACIVIL CONFLICT WITH FOREIGN FACTORS

MODULE: HIST110104

LECTURER: NGUYỄN THỊ NHẬT LINH GROUP: 3

1 Nguyễn Việt Thành 48.01.608.066 Leader, presentation 2 Ngô Huỳnh Vân Anh 48.01.608.004 Document 3 Võ Nguyễn Hồng Đức 48.01.608.011 Presentation

5 Bùi Thị Kiều Ngân 48.01.608.043 Slides 6 Châu Ngọc Mỹ Trân 48.01.608.079 Slides

Ho Chi Minh City, October 2023

TABLE OF CONTENTS

I Determine the court in resolving a civil conflict with foreign factors

1 Basic concepts

a Civil relations with foreign factors

b Civil cases with foreign factors

I.Determine the court in resolving a civil conflict with foreign factors1 Basic concepts

a Civil relations with foreign factors

Civil relations belong to the subjects of application of private international law if there is a participation of foreign factors.

Firstly, about the subject, civil relations with foreign factors is a relation in which at least one of the participants is a foreign person, legal entity.

Secondly, establishing, changing, performing, or ending civil relations happens in foreign countries.

Thirdly, the subject of civil relations is in a foreign country: marital and familial relations with foreign factors are marital and familial relations in which at least one of the participants is a foreigner, a Vietnamese settled in a foreign country; marital and familial relations with participants who are Vietnamese citizens but based on, change, end the relations according to foreign law, happen in a foreign country or the asset related to that relation in another country.

b Civil cases with foreign factors

A civil procedure with foreign factor is a civil affair which belongs to one of the following cases: Has at least one of the participants who is a foreign person, organization, agency; The participants are all Vietnamese worker, organization, agency but acts of establishing, changing, performing or ending those relations happen in a foreign country; The participants are all Vietnamese citizen, organization, agency but the subject of that relation is in a foreign country.

c Court’s authority

In principle, cases with foreign factors will be dealt with by a nation’s court if they’re requested by such a court, there is no international court that has the authority to deal with these cases In the process of solving civil cases with foreign factors, the procedural law of the country with the court will be applied according to the principle of court law (Lex Fori).

Lex Fori (the law of the forum) is a choice of law rule If applicable, it

provides that the law of the jurisdiction or venue in which a legal action is brought applies When a court decides that it should, by reason of the principles of conflict of law, resolve a given legal dispute by reference to the laws of another jurisdiction, the lex causae, the lex fori still governs procedural matters.

However, some specific procedural relations only occur in the process of a nation’s court accepting and solving civil cases with foreign factors Those specific procedural relations include (i) establishing the national court authority towards civil cases with foreign factors; (ii) establishing the law applied in order to determine the civil procedural ability and the behavioral civil procedural ability of the foreign organization including international organization, the agency which represent an international organization in Vietnam, a branch, office which represent a foreign organization in Vietnam; (iii) performing mutual legal assistant in civil cases which have foreign factors; (iv) acknowledging and allowing to enforce any verdict, decision by a foreign court; (v) acknowledging and allowing to enforce judgment by foreign arbitration.

The aforementioned problems are not just under the adjustment of international treaty These civil procedural relations with foreign factors belong to the adjustment subjects of private international law.

The analysis above shows the specification of social relations which belong to subjects of adjustment by private international law Private international law can adjust two different social relations groups, one is civil relations with foreign factors which are relations with civil nature, the other is civil procedural relations with foreign factors which are relations belonging to the subjects of adjustment by public law.

In reality, a nation’s court does not only solve civil cases between citizen, organizations of their own country, but also solve civil cases with foreign factors This is because social relations with foreign factors exist and develop, civil cases with foreign factors arise and are requested to be solved by the court is unavoidable If a civil case with foreign factors is allowed to be solved at court then only the national court has the authority to solve it International court only has authority

to deal with disputes that belong to public international law, not dealing with civil cases with foreign factors.

When a civil case with foreign factors is prosecuted or requested at a national court then the first issue is that the court has to determine whether the case belongs to their nation’s authority or not This is because when a civil case with foreign factors arises, the courts of both countries or many countries involved are all authorized to deal according to their nation’s law.

This on one hand comes from the principle of equal authority between countries and the principle to respect each country’s sovereignty A nation’s sovereignty does not only show territorial and residential aspects, but also demonstrates the nation’s rights in the legislative, executive and justice aspect Hence, theoretically, sovereign nations’ departments of justice are independent and equal to one another.

On the other hand, coming from nation sovereignty and nation’s duty in protecting their citizens and organizations with their national rights and legal benefit, the law in many nations all try to expand their national court’s authority to civil cases with the participation of a citizen, organization which belongs to their country or civil cases with factors that related closely to their national territory This will lead to the juridical consequence of civil cases with foreign factors related to how many countries, as many courts of such countries are authorized by the law of their national regulation.

2 Example

A dispute originating from an international commercial contract between a

Vietnamese enterprise and a French enterprise, the plaintiff can press charges at the Vietnamese court or the French court because both Vietnamese court and French court are authorized to solve the aforementioned dispute.

In case a civil case with foreign factors happens, the interested parties simultaneously press charges at the courts of two different countries and these countries’ courts both have the authority to resolve correctly following the regulations of their countries’ law, this will lead to a conflict in authority.

The issue that needs to be resolved is which court of which country will have the authority to solve, which court will refuse to solve? Based on what basis to solve or refuse solving a civil case with foreign factors?

Beside that, there are civil cases with foreign factors with all interested parties being foreign people, organizations or having elements that are attached closely to a foreign nation’s jurisdiction If the subject of a case is property in a foreign country, then the question being asked is whether the local national court has jurisdiction or not If we follow the nation’s court’s law, the national court is legally authorized then will solving civil cases with foreign factors be done to protect the legal rights and benefits for all subjects in the best way? Will the court be allowed to solve a civil case with foreign factors defined by law that belongs to the court jurisdiction, if the civil case with foreign factors is resolved in a foreign court, will they be able to better protect the rights of the parties involved?

The aforementioned problems, coming from each nation’s sovereignty aspect will be resolved by that nation’s own juridical law And the juridical law belongs to the public law’s aspect, compulsively effective to institutions that proceed with the procedure and all the parties involved in the procedure.

However, coming from the perspective that guarantees equal rights of sovereignty between nations, guarantees equal stable development of international cooperation relations and protects the rights and legal benefit of parties involved in a civil case with foreign factors, the aforementioned issues are also regulated by international treaties Hence, conflict of authority and moreover the issue of determining the authority of a national court in civil cases with foreign factors has

exceeded the regulation of one nation’s legal system.

This requires a special law, correcting this issue by nations’ juridical law’s regulations and international treaties’ regulations Deciding a national court’s authority towards a civil case with foreign factors is one of the important contents that belongs to private international law’s regulation limit.

Beside assigning basis in order to determine the national court’s authority toward civil cases with foreign factors, national law and other international treaties also regulate circumstances in which national court must reject accepting civil cases with foreign factors Normally they are situations in which a civil case with foreign factors has been resolved by a foreign court or accepted before the local national court receives a filed lawsuit/request or dispute by concurrent parties to arbitrary resolve In Vietnam, this issue is stated in Article 472 of the Code of Civil Procedure 2015.

Another point that we have to emphasize is that private international law’s mission stops at deciding whether a national court has the authority to any specific civil case with foreign factors or not Deciding which specific court in a national court system’s authority towards that case (determining the case’s authority, by level, by authority, ) is not within the regulating limit of private international law but within the adjustment limit of civil juridical law.

II.Specific situations

Situation 1 Commercial company Q does business in importing and

exporting construction equipment, headquarter located in Ho Chi Minh city signed a merchandise dealing contract with company Z - a foreign enterprise whose headquarter is in Germany According to the contract signed by both sides which was agreed to in Vietnam: Company Z will sell company Q an amount of construction equipment with the total property cost of 100 billions VND and the goods will be fully delivered to Q side slowest by the 30th of July 2023 at Sai Gon port The contract clearly stated that in case of a dispute, the Vietnamese court will have authority to solve and apply the law where the contract was signed which is Vietnamese law However, by the agreed upon date, company Z did not fully deliver the goods as requested within contract but until 14 days later, company Z would fully supply the amount of equipment This caused company Q a lot of disadvantageous fees in order to compensate the amount of money for the missing money for another company as well as the money to hire transportation Hence, company Q filed a lawsuit against company Z, demanding compensation for loss.

According to the Code of Civil Procedure 2015, it is regulated that the Vietnamese court must return the filed complaint requested a suspension the civil case with foreign factor if the civil case is within the Vietnamese court’s authority but one of the situations regulated in Article 472 Clause 1 of the Code of Civil Procedure 2015 At the same time, the Code of Civil Procedure 2015 also stated allowing parties to change to agreement in choosing arbitration or international court agreement in choosing Vietnamese court then the Vietnamese court is still authorized.

With the target of expanding the court’s trial authority, respecting the free will of parties in choosing court, creating an advantage for resolving conflicts then the 3 articles in the Hague Convention stated that agreement to choose court by two or many parties signed and appointed courts of one of the nations signed and excluded all other courts in order to solve the arisen conflict or will arise related to a particular relational law Article 5 of the Hague Convention also ruled that a court’s authority to choose a court or courts of one of the signed nations is appointed in an agreement choosing the authorized court to decide towards conflict that this

agreement applied then when the agreement is null and void by that nation’s law Then in the process of performing the aforementioned contract, company Z violated the contract and company Q filed a lawsuit, the Vietnamese court will be the authorized court in resolving and demanding loss compensation for company Q about their late delivery causing damage to company Z In case a foreign court accepted and resolved this civil case then that court’s verdict and decision’s validity will not be accepted nor executed in Vietnam.

In case parties do not agree which national court is chosen to resolve, following Vietnamese civil procedure law this is a case in which the situation about a civil relation is established, changed, and ended the relation in Vietnam, hence the Vietnamese court has authority to resolve this conflict.

In private international law about deciding which law applied to resolve civil cases, usually the decision is based on the parties’ agreement In case parties do not have this agreement then the court accepting that case will have the authority to determine which law to apply to the aforementioned case Normally, the national court accepting the case will apply their national legal norms to consider the law applied in the contract In case the conflict between company Q and company Z the parties have signed with each other a term applying Vietnamese law to resolved the conflict, at the same time this sign does not belong to the situations: The law of the nation where the real estate is applied when the contract has a subject that is real estate and the law applied towards transferring ownership, other rights towards the property is real estate, letting the real estate be rented or using the real estate in case the parties decide to change the law applied to the contract, hence applying Vietnamese law following the agreement between parties is appropriately legal.

Situation 2 A is a foreigner who is investing in Vietnam, A has plenty of

property in Vietnam including personal property and real estate, this person has a wife and a child who are foreigners currently living in a foreign country Before this person died, this person had made a will and left their inheritance to their child and wife Accordingly, all issues by the time the inheritance opens, who inherits the

legacy, are all applied following the country in which the person who left their inheritance is a citizen of Which means in this case, the Vietnamese agency with authority will apply the law’s content of the foreign country but regulations related to procedure (procedural law) will oblige the Vietnamese law’s regulation.

Article 680 Clause 2 of the Civil Code 2015 stated that the acts of inheritance towards real estate is decided following the nation’s law where the real estate is located Any real estate is a special kind of property, for the characteristic attached to the land, whereas land is a territorial part of a nation, non multipliable Then the act of inheritance with this property will have differences.

The act of inheritance towards real estate is understood that the person who inherits or the person who is alive and allowed to own the real estate or not completely according to the law of the nation where the real estate is regulated.

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