Jurisdiction over civil disputes containing foreign elements in vietnamese and swedish legislation under the approach of comparative study

LUND UNIVERSITY HANOI LAW UNIVERSITY FACULTY OF LAW JURISDICTION OVER CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS IN VIETNAMESE AND SWEDISH LEGISLATION - UNDER THE APPROACH OF COMPARATIVE STUDY SPECIALTY: INTER N A TIO N A L AND C O M PARATIVE LAW CODE: 60 38 60 MASTER OF LAW THESIS STUDENT: DONG TH I KIM THOA t h v Te S TRNG ĐẠI HOC LUẬT HA NĨI ph ò ng GV _ SUPERVISORS: PROF DR NGUYEN BA DIEN DR.PROF M ICHAEL BOGDAN H A N O I - 2004 Contents PREFACE ABBREVIATIONS INTRODUCTION 1.1 Rationales 1.2 Purpose and major questions 1.3 Limitations 1.4 Previous research 1.5 Materials and research methodology 1.6 Disposition GENERAL THEORITICAL ISSUSES ON JURISDICTION OVER CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS 2.1 Some main concepts 2.1.1 The concept o f "civil dispute containing foreign elements” 7 2.1.2 The concept o f “Jurisdiction over civil disputes containing elements” 11 2.1.3 The conflict of jurisdiction in Private International Law and rules of jurisdiction o f the courts 13 2.1.4 Some main bases of jurisdiction o f the courts in International civil procedure 14 2.1.5 Some special issues on the court’s jurisdiction in the international civil procedure 16 2.2 The systems of courts and legal documents on jurisdiction over civil disputes in Sweden and Vietnam 19 2.2.1 The Swedish and Vietnamese court systems 19 2.2.2 The systems o f legal framework on jurisdiction over civil disputes containing foreign elements 20 THE RULES OF COURTS’ JURISDICTION IN SWEDISH AND VIETNAMESE LAW 25 3.1 General bases of jurisdiction 25 3.1.1 Domicile, nationality and other personal connecting factors 25 3.1.2 Some other bases o f jurisdictional rules 27 3.1.3 Some general comments 30 3.2 Jurisdictional rules for some particular kinds of dispute 3.2.1 Civil, commercial, and labour disputes (or disputes relating to contracts, torts and property cases) 31 31 3.2.2 Matrimonial and family disputes 3.3 Some general comments THE ISSUES ON IMPROVING VIETNAMESE LAW ON JURISDICTION OVER CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS IN THE PROCESS OF INTERNATIONAL INTEGRATION 4.1 The reasons for continuously improving Vietnamese law 4.1.1 39 45 47 47 Some fundamental point of views o f the Communist Party o f Vietnam 47 4.1.2 Some requirements of rapidly and effectively settlement civil disputes in the trend of international Integration 48 4.1.3 A number o f outstanding problems of the system of Vietnamese jurisdictional rules 49 4.2 Some basic requirements for improving Vietnamese law on jurisdiction over civil disputes containing foreign elements 51 4.3 Some suggestion of solutions for the courts’ jurisdictional rules 51 4.3.1 The short - term solutions 52 4.3.2 The long-term resolutions 53 CONCLUSION 55 BIBLIOGRAPHY 56 TABLE OF CASES 59 Preface The question o f how the States deal with civil disputes containing foreign elements is a complex and interesting one A civil dispute containing foreign elements always concerns more than one country, so that it relates to more than one legal system Therefore, a preliminary question o f conflict o f laws is which national authority will have the competence and which legal system will be applied to deal with the case Up to now, the legal frameworks o f Sweden and Vietnam o f conflict o f laws and jurisdiction over disputes containing foreign elements have been improving day by day To be in line with general theories o f International Private Law, the system of jurisdictional rules in Swedish and Vietnamese law have many similarities However, apart from the socio- economic conditions and the historical process o f development, there are also many differences between two systems In the background o f judicial co-operation in the process o f international integration o f Vietnam at present time, a research o f this subject will have a realistic meaning For a person who has a first and very short time to study not only conflict of laws in European Union and Sweden but also those in Vietnam like me, it is a great interesting to approach a new legal subject In my situation, I dare not have an ambitious result The purpose o f this thesis is only to reappear an overview o f the Swedish and Vietnamese legal framework o f the courts’ jurisdiction over civil disputes containing foreign elements under the approach o f comparative study Shortcomings are inevitable due to my limited knowledge, materials, and time for doing it However, hopefully I shall be the first Vietnamese person who present systematically and total in details about the Swedish and Vietnamese legal framework o f the courts’ jurisdiction over civil disputes containing foreign elements I am indebted to Swedish International Development Cooperation Agency (SIDA) that gave me a good chance to study in Vietnam and Sweden I would like to thank Hanoi Law University and the Faculty o f Law o f Lund University as well as all o f professors and staffs here that helped me so much during my studying Especially, I am very much grateful to Professor Michael Bogdan and Professor Nguyen Ba Dien, my supervisors, who were very patient to offer kind to help to me to complete this thesis D ong Thỉ K im Thoa Hanoi, Vietnam November 2004 Abbreviations AFTA Asia Free Trade Area APEC Asia Pacific Economic Cooperation BTA Agreement between the United States o f America and the Socialist Republic o f Vietnam on Trade Relations EC European Community ECJ Court o f Justice o f the European Communities ECR European Court Reports EEC European Economic Community EFTA European Free Trade Association EU European Union ICSID International Central for Settlement o f Investment Disputes SFS Swedish Collection o f Statues (Svensk Forfattning Samling) ƯNCITRAL United Nations Commission on International Trade Law UK United Kingdom WTO World Trade Organization Introduction 1.1 Rationales * Civil disputes containing foreign elements and settlement these disputes are complex and interesting theoretical and practical issues in the legal science in Vietnam nowadays, because o f the following reasons: Firstly, the legal mechanism o f settlement civil disputes containing foreign elements as well as jurisdictional rules always not only be bound in national sphere but also international sphere Secondly, the increase o f civil disputes containing foreign elements in the background o f the process o f regional and international integration o f Vietnam has been objectively demanding a rapidly legal adjustment and a deeply scientifically research Thirdly, despite Vietnamese legal framework has been considered as a renovation o f civil and commercial disputes settlement procedures; it still has many outstanding problems Eventually, an important requirement in the process o f international integration o f Vietnam is to create a good legal background, in which has a good system o f jurisdictional rules for civil dispute settlement At present, there has had many studies in the legal science field in Vietnam concerning settlement o f civil disputes containing foreign elements However, most o f them concentrated on mechanisms and procedures in some fields o f this area There has not had any study on jurisdictional rules o f the courts, which based on a comparative connection with a foreign legal framework * In the process o f establishing legal framework for international disputes settlement, the State o f Vietnam must cany out international cooperation in order to select and research international experiences o f organizing and operating o f judicial bodies In the background o f developing Asia and Europe co-operations, Vietnam has been strengthening co-operations with Member States o f European Union Therefore, it is necessary to strengthen co-operations in judicial field in order to deal with civil disputes arising out o f the daily life and commercial and investment activities Sweden is one o f the countries that have had traditional relations with Vietnam for a long time Moreover, Swedish legislation has many similarities to Vietnamese legislation So that, a research o f Swedish legislation and even European Union (EU) legislation on jurisdiction and enforcement judgments in civil and commercial matters need to be considered as a very necessary thing to Up to now, there has not had any study in Sweden and other E U Member States, which on Vietnamese law on jurisdiction over civil disputes containing foreign elements based on a comparative connection with the legal fram ew ork o f one o f these countries All o f things mentioned above are the main reasons for the author o f this thesis to decide to choose a topic o f “Jurisdiction over civil disputes containing foreign elements in Swedish and Vietnamese legislation - under the approach o f comparative study” 1.2 Purpose and major questions The purpose o f this thesis is to clarify theoretical basis and real situation in Vietnamese law and Swedish law on jurisdiction over civil disputes containing foreign elements Therefore, based on the analysis o f current legal provisions and some practical issues, the aim is to present particular contents related to principles o f dealing with conflicts o f jurisdiction in Vietnamese and Swedish International Private Law, through the way o f comparative analysis The objective is to focus on some general theoretical issues, the process o f development and current jurisdictional rules o f two countries, as well as some outstanding problem s in the practice o f application o f Vietnamese jurisdictional rules and the issues on continuously improving Vietnamese law on jurisdiction over disputes containing foreign elements More particularly, the thesis w ill focus on some theoretical and practical questions as follows: (i) what are sim ilarities and differences in the system o f jurisdictional rules in current Vietnamese and Swedish legal framework, and why; and (ii) how to improve Vietnamese law on jurisdiction over civil disputes containing foreign elements in the process o f international integration 1.3 Limitations Apart from the purpose m entioned above and because o f limited time and materials and the thesis’ framework, the author o f this thesis determines the limitations of researching as follows: Firstly, the thesis seeks to present all o f main contents concerning jurisdictional conflicts, which belong to the scope o f adjudication o f International Private Law Therefore, other aspects o f jurisdiction over disputes will not be examined Secondly, the discussion fo cu ses on only the issues related to the co u rt‘s jurisdiction The issues relates to the arbitration’s jurisdiction are very interesting, but will be excluded because o f the thesis’ lim ited framework Moreover, the concept of “jurisdiction” in the international civil procedure has a large sphere that concludes (i) judicial jurisdiction, (ii) jurisdiction on the choice o f applicable law, and (iii) jurisdiction on recognition and enforcem ent foreign judgments Despite o f that, the thesis only fo cu s on the fir s t one that is judicial jurisdiction and rules o f jurisdictional conflicts Thirdly, because o f the approach o f two deferent national legal systems under a comparative method, the thesis will not present all o f their theoretical and practical issues but mainly concentrates on some most general and important provisions in some fundam ental Swedish a n d Vietnamese legal documents in order to draw an overview o f the system ofjurisdictional rules Eventually, the resolutions for improving Vietnamese law in the thesis also focus on jurisdictional rules o f the courts in settlement o f civil disputes containing foreign elements M oreover, they are only considered as the first results o f studying Thus, they must be more perfected 1.4 Previous research Conflicts o f jurisdiction over civil disputes are not completely a new subject However, not many studies have been made directly on this topic in Vietnam as well as in Sweden In fact, there were some studies on conflict o f laws (International Private Law) or settlement of international civil and commercial disputes, in which mentioned issues o f jurisdiction In Sweden, some main studies that relate to the topic that are only about Swedish law or Swedish conflict o f laws in general; such as Swedish conflict o f laws (Hilding Eek, 1965), Swedish Private International Law (M Bogdan, 1999), Swedish Court and Foreign law (Maarit Jaintera-Jareborg, 1997), Swedish judicial practice in international Family and Inheritance law (Lennart Pảlsson, 1986 and 1989), Swedish law in the new millennium (M.Bogdan, 2000); Dispute resolution by way o f arbitration (Johan Kwart and Bengt Olsson, 1999),ect Aside from that, another sources are studies in other EU M ember States, such as: Conflict o f laws in the European Community (D.Lasok and p A Stone, 1987), Conflict o f laws (JCT Chuah and Alina Kaczorowska, 1996), Civil jurisdiction and judgm ents (Adrian Briggs and Peter Rees, 1997), Jurisdiction in Contract and Tort under the Brussels Convention (Ketilbjom Hertz, 1998), Laws relating to international commercial disputes (Jonathan Hill, 1998), Jaffey on the Conflict o f Laws, (CMV Clarkson and Jonathan Hill, 2nd ed., 2002), The law o f International trade (Hans van Houtte, Fciarb 2nd ed., 2002), ect All o f these studies did not mention to Vietnamese law or perspective of comparability between Vietnamese law and related countries In Vietnam, many studies have seeked to focus on the issues o f disputes resolution For instance, Economic dispute settlement and entering into the 1958 New York Convention (Ha Hung Cuong, 1996), Vietnamese law and the issue on settlement o f disputes containing foreign elements (Le Song Lai and Phan Ton Viet Anh, 1996), The fundam ental methods o f dispute settlement in Vietnam on economic and foreign investment (Hoang The Lien, 1997), Dispute settlement in the fie ld o f foreign investment (Do Thi Ngoc, 2000), Determination o f jurisdiction in international civil procedure (Le Mai Thanh, 2000), Some fundam ental theoretical issues on Private International Law (Doan Nang, 2001), The law relating to matrimonial relations containing foreign elements (Nong Quoc Binh, 2003), The laws relating to civil relations containing foreign elements (Nguyen Cong Khanh, 2003), The Vietnamese co u rts’jurisdiction over civil cases containing foreign elements (Nguyen Trung Tin, 2004), ect However, there has not any one that directly presented in full details about the rules o f conflict o f jurisdiction over disputes containing foreign elements 1.5 Materials and research methodology For the author o f this thesis, the materials serve directly for the research are very lim ited1 The resources used consist mostly o f some legal docum ents2 and some cases relate to the topic Besides that, some reference books and articles3 concerning the objective are also used This thesis aims to analyse the real situation o f laws on jurisdiction over disputes containing foreign elem ents in V ietnam and Sweden Therefore, a comparative m ethod and an analytic m ethod are used as the main m ethods throughout the main parts o f the thesis, not only w ith the main purpose to highlight similarities and differences, but in order to explain the reasons, to underline the problems o f the objective as well as the solutions for them Besides that, historical method, descriptive and synthesis m ethods will be used to present in brief the historical and perspective o f legal fram ework and what has been developed in this subject 1.6 Disposition Aside from a general introduction (chapter 1), the following contents will be concluded in this thesis: Some general theoretical issues on jurisdiction in dispute settlement in International private law will be presented in chapter in order to describe the definition and scope o f subjects o f jurisdiction in disputes settlement, the rules o f conflict o f jurisdiction and their benefits, and the fundam ental principles o f determining jurisdiction o f the courts, as well as some introductory remarks o f the perspective of the legal framework Chapter will present the current jurisdictional rules o f the courts over disputes containing foreign elements in Vietnam ese and Swedish International Private Law C hapter aims to analyse the issues on continuously im proving Vietnamese law on the rules o f jurisdiction over disputes containing foreign elem ents in the process o f international integration Finally, a general conclusion (chapter 5) will sum up the overall an analysis and observations related to contents that have been clarified in the thesis ' Because o f the fact that m ost o f the conference books in Sw eden are only in Sw edish, except som e books such as S w edish conflict o f la w s (H ilding Eek, 1965), “S w edish la w in the new m illennium ” (M ichael Bogdan, ed, 2000) The legal docum ents are used in this research m ainly conclude: The Brussels conventions and regulations in EU legislation, The Sw edish C ode o f Judicial Procedure, Judicial Assistance Agreem ents betw een Vietnam and som e other countries and the V ietnam ese C ode o f C ivil Procedure, ect See the section 1.4 (as m entioned above) - - (ii) Exclusive jurisdiction of Vietnamese courts Pursuant to Article 411 o f the Code o f Civil Procedure o f 2004, the following matrimonial and family cases shall lie with the exclusive jurisdiction o f Vietnamese courts: - The cases relating to the rights for immovable property located in the territory of Vietnam - The divorce case between a Vietnamese citizen and a foreign citizen or a non­ nationality person, if both of the spouses dimiciled or resident in Vietnam 3.3 Some general comments From the approach o f comparative studies o f Swedish and Vietnamese rules o f civil disputes containing foreign elements, the bases o f jurisdiction, in general, are suitable with nature o f dispute relations and theory o f conflict o f laws There are many similar rules in determining jurisdiction over civil disputes concerning contracts, property, tort or matrimonial relations; in particular, the application o f the bases of the place where properties located, the place where the contracts are performed, the place where harmful events occurred, the place where the parties domiciled or seat However, some basic differences may be gathered as follows: Firstly, At international level, Swedish rules o f jurisdiction are more in full details and well - provided than Vietnamese rules This is proved by many provisions contain the different bases o f jurisdiction in system o f international treaties o f which Sweden is a M ember State; which create not only the general rules but also special rules, exception rules and exclusive rules In particular, they include (i) jurisdiction rules with regard to defendant domiciled in a EU Member State and jurisdiction rules which not depend on the defendant being domiciled in a Member State, (ii) jurisdictional rules under many levels and suitable to the nature o f disputes which include general jurisdiction and prorogation jurisdiction, transference to a court better placed to hear the case, declining jurisdiction and staying proceedings In Vietnamese legislation, particularly Judicial Assistance Agreements, jurisdictional rules only are designated under a general level, which has principle contents This is proved by the fact that most o f provisions on jurisdiction only principally indicate the courts o f a Contracting States have jurisdiction, so there has not had a system of detailed rules to determine jurisdiction in different cases Furthermore, except general rules, some other particular jurisdiction such as exclusive jurisdiction, prorogation jurisdiction, conveniens jurisdiction, declining jurisdiction are very lim ited110 In internal level, the Vietnamese Code o f Civil Procedure o f 2004 has a separate chapter o f jurisdiction over civil disputes containing foreign elements, while the Swedish Code o f Judicial Procedure only has a chapter concludes unified provisions o f jurisdiction over all o f civil cases This deference mainly is on aspect o f legislative technique; however, it is necessary to confirm that provisions o f the Vietnamese Code o f Civil Procedure are suitable with the tradition o f Vietnamese legal thinking 110 Som e provisions on exclusive jurisdiction and staying proceedings have been put into the Code o f C ivil Procedure o f 2004, but they w ill only com e into force on 1st January 2005 - 45 - Secondly, the unification and synchronization o f the system o f jurisdictional rules in Swedish legislation is higher than those in Vietnamese legislation are At international level, Sweden mainly applies multilateral treaties in the Brussels/Lugano systems and the Hague Conference on Private International Law, in which having a big system o f jurisdictional rules; meanwhile Vietnam must use bilateral jurisdictional rules in Judicial Assistance Agreements in which many deferences depend on the results o f negotiation with each foreign State At internal level, Swedish procedure law has had a long time o f developing in nearly a half of century; while in Vietnam, jurisdictional rules still have been scattered and ununified and unfull in a long period o f tim e111 Thisrtly, in that conditions, the system o f jurisdictional rules in Swedish legislation (as well as EU jurisdictional rules) are more scientific, modem and more easier to apply; therefore they surely have a higher effects Eventually, it is necessary to mention here some explanations for similarities and differences in system o f jurisdictional rules in Swedish and Vietnamese legislation The bases o f similarities may be general theories o f Private International Law and general characteristics o f legal system o f two countries which both o f them belong to civil-law tradition It is more necessary to note that the bases o f differences in which not only factors o f socio- economic conditions or history o f the process o f development Private International Law science but also characteristics o f legal culture tradition In particular, Sweden has had a better system o f jurisdictional rules because this country has better socio- economic conditions, which more rapidly developed than this in Vietnam Furthermore, in Sweden as well as in EƯ Member States, the courts have been considered as a centre o f dispute settlement mechanism, with a very high position and judicial powers Therefore, judicial procedures and jurisdictional rules o f the courts have been developed While in Vietnam, the psychology o f Vietnamese that “you are an unhappy person if you have to go to the court” has effected so much to methods o f dispute resolution in which the parties give priority to mediation and negotiation or conciliation; and once the negotiation or mediation fails, they may refer to a third party, which may be for example, a non government organisation to reach an agreement In the psychology o f Vietnamese, they would hesitate to bring a dispute to the courts112 This psychology effects to the development of the courts system and legal rules o f dispute settlement through judicial procedures In addition, it also effects to the law - making process and legal science in the field o f dispute settlement It is one o f reasons why judicial jurisdictional rules o f the courts have been not developed actually equal with many other countries in the world, especially W estern countries 111 U ntill before date o f the Code o f C ivil Procedure o f 2004 com ing into force on 1st January 2005 112 The D eligation o f the European Com m ission to Vietnam, Flécheux NG O and A ssociés Law firm, C onference o f D ispu te Settlem ent in Vietnam, Ho Chi Minh City, 26-27 April 1999 (National Political Publishing House, 2000), p.401 - 46 - The issues on improving Vietnamese law on jurisdiction over civil disputes containing foreign elements in the process of international integration 4.1 The reasons Vietnamese law for continuously improving 4.1.1 Some fundamental point of views of the Communist Party of Vietnam 4.1.1.1 About international integration The renovation policy launch and lead by the Communist Party o f Vietnam (since 1986) has favoured the gradual transition o f the economy o f Vietnam from a centrally planned economy to a socialist - oriented market economy and intergrates into international economy step by step In order to ensure gradual and sustainable results o f this transition and to create a favourable legal envirment for economic relations to develop, the Communist Party and the State o f Vietnam had many important points o f views and policies Since 1990s, the State o f Vietnam opened out step by step many activities to retain the initiative in entering into many international organizations or forums; for instance, W orld Bank (WB), Asia Development Bank (ADB), International Money Fund (IMF), Association o f South East Asia Nations (ASEAN), Asia Free Trade Area (AFTA), Asia - Europe M eeting (ASEM), Asia Pacific Economic Conference (APEC), ect Aside from agreements on the regime o f M ost Favour Nation (MFN) treatment in trade relations with 64 States, the Government o f Vietnam also signed an Agreement on Trade relations with the Government o f United States o f 2000 More specifically, Vietnamese State has been negotiating actively to become a M ember State of World Trade Organization (WTO), in which considers this process as the most important purpose113 Therefore, the Communist Party of Vietnam has determined: Continue to strengthen economic relations with foreign countries under a multilateral and diversity direction; to retain the initiative in process o f international integration under a itinerary which suitable with the conditions o f Vietnam and ensure to enforce promissions in bilateral and multilateral relations such as AFTA, APEC, BTA, in order to joint in WTO (as stated in the IXth Plennum o f the Communist Party of 2001 ) 113 N guyen Ba Dien, Joining W orld Trade O rganization - opportu nities an d dem ands f o r (The Legal Science Projects, Hanoi National University o f Vietnam, 0 ), p 79-80 -47 - Vietnam, 4.1.1.2 About process of judicial reform In the process o f judicial reform in Vietnam nowadays, a policy o f strengthening o f international co-operation in justice activities has been considered as one o f initiative duties; o f which to select and research international experiences o f organizing and operating o f judicial bodies, o f dispute settlement base on a principle to protect independence and sovereignty o f the nation o f Vietnam; propagate and enforce well all o f international conventions and Judicial Assistance Agreements to which Vietnam is a party; continue to sign Judicial Assistance Agreements with other countries, especially with the neighbour countries, the countries in the same area with Vietnam and the countries have ừaditional relations with Vietnam 4.1.2 Some requirements of rapidly and effectively settlement civil disputes in the trend of international integration Domestic socio-economic relations and foreign trade, commercial and investment relations have been more diversified and complicated since Vietnam turned into a market economy and developed an open policy Up to now, Vietnam has had diplomatic relations with over 160 countries in the world, and had economic co-operation with over 200 international organisations and forums, had trade relations with over 100 countries, had investment relations with over 50 countries in the w orld114 Aside from that, a number o f foreigners move into Vietnam and Vietnamese people move outside o f Vietnam are increasing day by d a y '15 Since 1990, the co-operation between Vietnam and EU has been developing in economic, commercial and invesment relations, as well as culture, education co­ operation with the speed o f improvement o f business scope about 31,8% per annum and total o f 322 investment projects with 5,38 billions o f USD from E U 11 , in which Sweden has a number o f projects At present, there are over one thousands of Vietnamese people domiciled in Sweden and several hundreds o f thousands of Vietnamese people domiciled in other EƯ Member States Apart from these backgrounds, in the daily life relationships among human beings and furthermore, in economic, commercial and investment relations, although nobody wishes it, disputes have arisen or will arise in practice In recent years, along with the expansion and development o f international relations o f Vietnam, there has been an increasing number o f civil, economic, labor and matrimonial disputes between the parties o f Vietnamese individuals or legal persons and foreigners The contents o f disputes are not only becoming more complicated, but also more important This fact has given a requirement to rapidly and effectively resolve all kinds o f civil disputes containing foreign elements In order to protect the lawfull rights of the 114 The Legal Science Institute o f Ministry o f Justice o f Vietnam, T heoritical an d p tica l backgrounds o f a O rdinance on International J u dicial Assistance, (Legal Science Informations, 2001), p.8 u$ Ibid., p.8-9 116 Dam Huy Hoang, Vietnam - E U relation s fro m 1995 to p resen t tim e, (European Studies Review o f the Centre for European Studies -Vietnam, N o l 2002), p.88 -48 - parties and to stabilize the society and to develope the economy, the State o f Vietnam must have a good system o f internal law and strengthen international co-operation in judicial activities with all o f foreign countries In recent years, the State has carried out a considerable renovation o f civil and commercial disputes settlement procedures The goal o f the renovation is to creat various mechanism o f dispute settlement Meanwhile, as Vietnam is aiming at being intergrated into international or regional economics, disputes settlement mechanisms must be established on a step by step in the harmony with international practice However, Vietnam is at the beginning o f a long and difficult reform process There is still a long way to go, most notably in the area o f dispute settlement 4.1.3 A number of outstanding problems of the system of Vietnamese jurisdictional rules 4.1.3.1 The system of jurisdictional rules at international level Firstly, Vietnam has not ratified multilateral international treaties on jurisdiction and enforcement o f civil and commercial matters; while only has signed Judicial Assistance Agreements with 14 countries (as presented in Chapter above) Despite o f very important role in the system o f legal basic bases for judicial activities in dealing with civil disputes containing foreign elements, they still have many weaknesses For instance, (i) their legal enforcement are only bounded in bilateral relationships between Vietnam and a Contracting State, (ii) many parts o f systems of jurisdictional rules are different from some Agreements to anothers, and (iii) some Agreements, such as Vietnam-France Agreements, has not any jurisdictional rule These limitations have effected directly to the process o f disputes settlement in practice Especially, at present, Vietnam has not signed Judicial Assistance Agreements with many countries in the world W ithout such agreements, there has not the legal base for resolving jurisdictional conflicts between the State o f Vietnam and related States117 This may be the biggest outstanding problems in Vietnamese legal system in dispute settlement nowadays Secondly, the contents o f jurisdictional rules in Judicial Assistance Agreements have not been fulled in details, especially rules on exclusive jurisdiction, prorogation jurisdiction and declining jurisdiction Moreover, the trend o f signing Judicial Assistance Agreements under a naưow scope will lead to the fact o f shortage jurisdictional rules 117 In fact, there was a case o f jurisdictional conflic between Vietnamese courts and the High Court o f Singapore in which the Hyundai Corporations (Korea) V Vietsovpertro Oil and Gas Jointventure (Vietnam) Because o f the ’’Truong Sa” ship o f Vietsovpertro harmed the path o f gas made by the Hyundai Corporations (Korea), the Hyundai Corporations (Korea) suited Vietsovpertro to the High Court o f Singapore with a tort claim o f 13 m illions o f U SD on 13th March 1995, w hile Vietsovpertro suited the Hyundai Corporations (Korea) at the Ba Ria - Vung Tau provincial court o f Vietnam with a tort claim o f 01 m illions o f U SD on 7th March 1995 Without a Judicial Assistance Agreement or other general legal base o f jurisdictional rules, the High Court o f Singapore stayed its proceedings with the case in which the Hyundai Corporations (Korea) suited Vietsovpertro on 13th March 1995, based on similarly applying international law and custom Up to now, this case was still regarded as a rarted one in the practice o f jurisdictional conflict setlement o f Vietnam courts At international level - 49 - 4.1.3.2 The system of jurisdictional rules at internal level In the content aspect, the Vietnamese jurisdictional rules, at present, have not been fulled in details Thus, they have not fullfiled the demands in both o f theoritical and pratical aspects In a long period o f time, the rules concerning to dispute settlement have been provied in many different legal documents; for instance: The Ordinance on the Procedure for Civil cases settlement o f 1989, The Ordinance on the Procedure for Economic cases settlement o f 1994, The Ordinance on the Procedure for Labor disputes settlement o f 1997, The Ordinance on Matrimonial and Family relations between Vietnamese citizens and foreigners o f 1993, The Ordinance on Recognition and Enforcement o f Foreign Judgments in Vietnam o f 1993, The Maritime law of Vietnam o f 1990, The Aviation law o f Vietnam o f 1991, The Civil Code o f Vietnam o f 1995, The Commercial law o f 1997, The Law on Foreign Investment in Vietnam o f 2000, The Ordinance on Commercial Arbitration o f 2003, ect Despite this legal framework has been considered as a renovation o f procedures on civil and commercial dispute settlement, it was still inadequate or unclear in any case of disputes Therefore, according to the opinions o f H.E Ambassador Ricardo Ravenna - Head of the Deligation o f the European Commission to Vietnam, it is necessary to picture the exsting legal framework in Vietnam and to see to what extent it is being applied and to seek a more comprehensive and effective legal framework, in line with the rules o f the same existing else where, in particular in Europe118 Recently, the State o f Vietnam has been trying to improve and perfect step by step the legal framework on civil and commercial dispute settlement with respect to substantive laws, legal proceedings and competent jurisdictions At present, the Code o f Civil Procedure o f 2004 has many important jurisdictional rules, not only At internal level but also international level It is regarded as the first legal documents w hich contains an unification o f jurisdictional rules on civil dispute settlement in the Vienamese legal system However, although this Code will come into force on 1St January 2005, but now many contents o f jurisdictional rules in this Code are regarded as outstanding problems which not fullfil the demands o f dispute settlement in both o f theory and practice aspects Some main isues may be given as follows: - The concept o f ’’civil disputes containing foreign elements” has not been provided correctly, because it does not mention some important subjects o f civil dispute relations such as foreign legal persons or other foreign organisations Aside from this fact, the Code has not any definition o f ’’foreigner” 119 118 See: H.E Ambassador Ricardo Ravenna - Head o f the Deigation o f the European Commission to Vietnam , The O penning address at the conference o f disputes settlem en t in Vietnam, 26-27 April 1999, (National Political Publishing House o f Vietnam, 2000), p 397 - 398 119 A t present, there is not a uniform and right definition o f ’’foreigner” in Vietnamese legal system In legal science, som e current explanation o f this concept are differ from each other, such as foreigner include both individual and legal person, or foreigner include only individual,ect - 50 - - Jurisdictional rules, in both o f international and national levels, contain some discrepancies and contradiction as well as deficits For instance, Article 410 (1) does not contain principles o f determining jurisdiction in Private International Law in details; Artilce 410 (2) has some discrepancies, Article 413 (on staying proceedings) does not exclude all o f the cases which are exclusive jurisdiction o f Vietnamese courts More specifically, the Vietnamese internal jurisdictional rules (about local competent courts) have many unreasonable contents in which the way to frame each group o f civil, eocnomic, labor or family disputes may lead to a tautology120 4.2 Some basic requirements for improving Vietnamese law on jurisdiction over civil disputes containing foreign elements The point o f views and policies o f the Vietnamese Communist Party and State with respect to the process o f international integration and judicial reform as well as the practice o f socio - economic conditions o f Vietnam nowadays are regarded as important bases o f the process o f improvement general legal framework and jurisdictional rules for civil disputes settlement Apart from these bases, some directions may be given as follows: Firstly, the aim o f improvement Vietnamese general legal framework is to serve the process o f international integration; in particular, to create a good legal environment in disputes settlement and to put it in line with the international regulations that are currently in force Secondly, the improvement legal framework o f Vietnam must be suitable with general theories and principles o f modem Private International Law and must ensure the harmonization o f Vietnamese legal system Thirdly, the improvement legal framework o f Vietnam must also protect the lawfull rights o f the parties; stabilize the society, develope the economy, especially regards to the national interests and sovereignty o f Vietnam in international relations Eventually, apart from the current conditions o f Vietnam in the degree o f law making, it is necessary to establish short - term solutions and long - term solutions in a possitive steps in order to fulfil step by step the demands o f domestic and international socio - economic conditions 4.3 Some suggestion of solutions for the courts’ jurisdictional rules The aims, directions and requirements are regarded as the theoretical foundations and the fact o f socio-economic conditions are regarded as the practical foundations for improving Vietnamese law (as presented above) Apart from these foundations as 120 Chu Thi Hoa, A bout ju risd ictio n o f the courts in the draft o f the C ode o f C ivil Procedure, (D em ocracy and Law R eview o f Ministry o f Justice, N o 6, 0 ).p 17-20 And Phan Chi Hieu, The m eth o d o f determ ining ju d ic ia l ju risd ictio n o f the courts, (The Legislation Studies R eview , the Office o f A ssem bly o f Vietnam, N o.4, 2004), p 46-49 -51 - well as referring to experiences o f legislation o f Sweden and EU, the author would like to present some following main resolutions Hopefully, they will contribute to improve the Vietnamese legal framework, in particular the regulation for civil disputes settlement 4.3.1 The short - term solutions 4.3.1.2 To improve the system of jurisdictional rules at international level Firstly, to seek to amend and supplement current Judicial Assistance Agreements as well as Agreements on trade relations between Vietnam and foreign countries in which an uniform and adequate system o f jurisdictional rules will be established Secondly, to enter into new Judicial Assistance Agreements with other countries, especially the neighbour countries and the countries in the same area and the countries those have traditional relationships with Vietnam, in which new systems of jurisdictional rules will be created At present, Vietnam has been improving deeply and largely co-operations with most o f EƯ Member States Therefore, aside from some EU M ember States, that Vietnam had signed Judicial Assistance Agreements, the State o f Vietnam should actively negotiate and sign Judicial Assistance Agreements with other States as well as be adjoining to EU legislation on jurisdiction and recognition and enforcement in civil and commercial and matrimonial matters In current conditions o f Vietnam, this may be the best solution because it enhances cooperation in this area and reciprocity is considered as the key to effective international co-operations Thirdly, to strengthen international co-operation, experience researching and applying international law or custom on disputes settlement At present, many Swedish legal experts overate the system o f Judicial Assistance Agreements o f Vietnam However, according to their opinions, it will be better if Vietnam become a M em ber State o f multilateral treaties and conventions because o f the long-term and large interests from this So their advising that the State o f Vietnam should enter into some international treaties on Private International Law 121 In the same position of M em ber State o f these treaties, Vietnam and Sweden or other countries will share a general legal framework at international level for civil disputes settlement as well as other aspects o f Private International Law 122 This advice need to be considered as a good experience for our country 4.3.1.2 To improve the system of jurisdictional rules at internal level Firstly, to amend and supplement provisions on jurisdiction in the Code o f Civil Procedure o f 2004 in order to overcome current weaknesses (as presented above) For instance, to standardize the concept o f “civil disputes containing foreign elem ents”, to improve jurisdictional rules in Article 410- 413, to fill up provisions 121 The Legal Science Institute o f Ministry o f Justice o f Vietnam, T heoritical an d p tica l backgroun ds o f a O rdinance on International J u dicial Assistance, (Legal Science Informations, 0 ), p 195 122 H ow ever, it is necessary to note that Vietnam cannot becom e a member o f the Brussels regime, since this system is designed for EC Member States only In theory, Vietnam could becom e a party to the Lugano Convention, but only if upon the invitation o f a Contracting State and with the unanimojus consent o f all the other Contracting States (pursuant to Article 60 and 62 o f the Lugano Convention) - 52 - concerning exclusive jurisdiction, prorogation jurisdiction, declining jurisdiction into the system o f jurisdictional rules for settlement o f disputes containing foreign elements as well as to improve provisions on jurisdiction o f local competent courts Moreover, it is necessary to indicate a general principle that jurisdiction of Vietnamese courts in settlement disputes containing foreign elements are determined based on provisions o f international treaties to which Vietnam is a party and provisions o f the Code o f Civil Procedure This principle is suitable with theories of Private International Law and regulations o f Sweden an EU Secondly, aside from improving provisions o f the Code o f Civil Procedure, a total review o f all o f current legal documents concerning civil disputes settlement need to be carried out as soon as possible in order to eliminate discrepancies and contradictions The main purpose o f this work is to systematize, amend and supplement all o f jurisdictional rules and to reach a higher level in dispute settlement in the near future 4.3.2 The long-term resolutions 4.3.2.1 To improve jurisdictional rules at international level In order to seek a more comprehensive and effective legal framework in line with the rules o f the game existing in the world, in particular in Europe, Vietnam should accede international treaties relating to international civil procedure and Private International Law Some main issues concerning this resolution are shortly summarized as follows: Firstly, it was proved in theories and practices o f Private International Law that most o f States could not resolve effectively disputes containing foreign elements if they did not have general international treaties and conventions to establish the legal framework for co-operations between the Contracting States in promptly and fairly resolving civil disputes A general trend in the world today is to establish global conventions to deal with civil matters Especially, the Hague Conference on Private International Law has been preparing for the negotiations concerning a world convention on international jurisdiction and the recognition and enforcement of foreign judgm ents in civil and commercial matters Thus, many countries in general and Vietnam in particular should adjoin and enter into these conventions Secondly, an active process for Vietnam in entering into multilateral treaties in Private International Law may conclude some particular steps, such as adjoining treaties or conventions of one area first and then step by step adjoining global treaties or conventions 4.3.2.2 To improve the system of jurisdictional rules at internal level In order to overcome the loopholes and fill up the Vietnamese legal framework of disputes settlement, a Law on resolving civil disputes containing foreign elements or a Law on jurisdiction over civil disputes containing foreign elements At present, there are some points o f view in Vietnamese legal science that it is not necessary to this, because o f the fact that scattered provisions on dispute settlement in many legal documents may be still suitable with the requirements from -53 - practice123 Those points of view seemed to be based on only the current condition and degree o f law-making in Vietnam, but not in line with legislation o f countries in the world Moreover, in Vietnam nowadays, the trend o f enacting some separate laws, which adjust totally some important groups o f legal relations has been carrying out day by day Therefore, according to the author o f this thesis, it is necessary to enact a Law on resolving civil disputes containing foreign elements, which based on a system o f general principles o f the Code o f Civil Procedure This Law will be a synthesis o f necessary rules in settlement o f civil disputes containing foreign elements However, another issue must be addressed here is the reason why there will not be able to have a Law on resolving civil disputes containing foreign elements in the near future in Vietnam In a long period o f time, there has had only scattered provisions on dispute settlement in many legal documents in Vietnamese legal system Up to now, a system of new and uniform provisions have just stipulated in the Code of Civil Procedure, but this Code even has not come into force Thus, the amendment and supplement o f this Code will not be done at present In the future, the resolution o f a Law on resolving civil disputes containing foreign elements or a Law on jurisdiction over civil disputes containing foreign elements must be done in order to ensure systematic and effective characteristics o f Vietnamese legal system 123 D oan Nang, Som e th eoretical an d p c tic a l issues on P rivate International Law, (National Political Publishing House o f Vietnam, 2001), p.225 - 54 - Conclusion The question o f how the courts deal with disputes containing foreign elements is a complex and interesting one The “international” nature o f dispute relations proves that the case or the parties as well as the authorities have some connection to more than one country Moreover, the objects o f dispute settlement always include many diversity legal relationships such as civil, commercial, labour, matrimonial and family relations The complication seems to be increased in the situation of international integration and globalization at present time Under the effects o f the above factors, jurisdictional rules, this in line with other regulations in Private International Law, has been developing day by day in Sweden and Vietnam as well as in other countries Through the mechanism o f settlement of jurisdictional conflicts in which directly indicating a particular court who has jurisdiction over disputes, jurisdictional rules have many benefits They create the first fundamental part in the structure o f conflict o f laws Another issue must be addressed is that the results o f a comparative study on Swedish and Vietnamese jurisdictional rules, as presented in this thesis, indicate an overview o f particular similarities and differences in both o f systems and contents as well as both o f quantity and quality aspects With a longer process o f development and better legal backgrounds on dispute settlement in both o f international level and national level, Sweden has a system o f jurisdictional rules in international civil procedure, which is more powerful and well - provided than those in Vietnam What has been presented about the system o f jurisdictional rules in Swedish and EƯ legislation showed clearly many loopholes in the legal science as well as current legal system o f Vietnam How to fill the loopholes? It must be the coming task of Vietnamese legal experts and lawmakers Referring to experiences o f Swedish and EU legislation, as well as basing on general trends o f international integration and the present conditions o f Vietnam, the thesis has given some main resolutions, which conclude not only the short-term resolutions but also the long term-resolutions All o f these resolutions must be carried out, of course step by step, in order to overcome the obstacle, the confusion o f the Vietnamese legal framework on jurisdiction rules Hopefully, this study will contribute to the process o f improving Vietnamese law on dispute settlement; and more specifically, make the system o f Vietnamese legal science to be abundant - 55 - Bibliography I In Vietnamese Cuong, H a H u n g and Hoa Huu Long Some issues on determining judicial jurisdiction and applicable law in the case o f ’’Truong Sa" ship, (Democracy and Law Review o f Ministry o f Justice, N°.l, 1996).p 1517 D ien, N guyen Ba About ejfection o f globalization, regionization and international intergration and the role o f the state, (The Journal o f State and law o f the Institute o f State and Law, National Centre for Social Sciences and humanities o f Vietnam, N°.5, 2004) Dien, N guyen Ba Joining World Trade Organization - 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Swedish court - 59 - ... FACULTY OF LAW JURISDICTION OVER CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS IN VIETNAMESE AND SWEDISH LEGISLATION - UNDER THE APPROACH OF COMPARATIVE STUDY SPECIALTY: INTER N A TIO N A L AND C... jurisdiction in resolving civil disputes containing foreign elements will be determined as the same as Vietnamese courts’ jurisdiction in resolving civil disputes that not containing foreign elements under. .. disputes containing foreign elements It is a fact that there are two parts form the law systems o f jurisdiction over civil disputes containing foreign elements in each Swedish and Vietnamese legislation