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Examining the Breadth and Conformity with Global Standards of Vietnamese Courts’ Exclusive Jurisdiction in International Commercial Contracts Pertaining to Immovable Property Within Vietnam

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Abstract

This article delves into the critical aspect of exclusive jurisdiction in Vietnamese law, particularly focusing on disputes emerging from international commercial contracts relating to immovable property. The main objective is to demystify the types of disputes that are encompassed under this exclusive jurisdiction and to propose a requisite level of connection to Vietnamese immovable property for such jurisdiction to be applicable. Through a comprehensive analysis, the study reveals varying interpretations by Vietnamese courts regarding the scope of this jurisdiction rule. A notable finding is the contrasting jurisdictional approaches between domestic and foreign arbitrators in handling disputes connected to international commercial contracts involving immovable property. This discrepancy highlights the urgency for Vietnam to align its legal framework with global standards. The paper emphasizes the significance of this harmonization, not only for legal clarity and consistency but also for enhancing the attractiveness of Vietnam’s legal environment for international investors.

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Notes

  1. Translation of Vietnamese legal documents used in this article is taken from the database LuatVietnam, available at: https://luatvietnam.vn (accessed 19 February 2024).

  2. Art. 2(3) CCPV.

  3. Currently, Vietnam is a member of the following Hague Conventions: the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents 1965, the Hague Convention on the Taking of Evidence abroad in Civil or Commercial Matters 1970, and the Hague Convention on the Protection of Children and Cooperation in Respect of Intercountry Adoption 1993.

  4. These are the agreements signed with the following countries: Algeria, Belarus, Bulgaria, Cambodia, China, Cuba, Czech Republic, France, Hungary, Kazakhstan, Laos, Mongolia, North Korea, Poland, Russia, Taiwan, Ukraine.

  5. These are the agreements signed with the following countries: Belarus, Bulgaria, China, Cuba, Czech Republic, Hungary, Laos, Mongolia, North Korea, Poland, Russia, Ukraine.

  6. Nguyễn (2004), p. 1.

  7. Art. 469(1) CCPV.

  8. Art. 470(1)(a) and (b) CCPV.

  9. Đỗ (2019), p. 267. This is reflected in the provision in Art. 440(1) CCPV: ‘A foreign court that has issued a judgment or decision that is currently under consideration for recognition and enforcement in Vietnam has jurisdiction to resolve the civil case in the following cases: 1. Civil cases that do not fall under the exclusive jurisdiction of Vietnamese courts as stipulated in Article 470 of this Code.’.

  10. 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’. Up to December 2023, the resolution has not yet been passed. Available at: https://vbpq.toaan.gov.vn/webcenter/ShowProperty?nodeId=/UCMServer/TAND081751 (in Vietnamese) (accessed 19 February 2024).

  11. Vietnamese Supreme People’s Court (2013), p. 29.

  12. Trương (2020), p. 789: For example, in a loan transaction with joint funding, the Vietnamese borrower mortgages the land use rights to the agent who receives collateral on behalf of the Vietnamese and foreign co-lending banks. The mortgage contract, in this case, must be adjudicated by the Vietnamese courts and excludes the jurisdiction of foreign courts.

  13. Trương (2020), p. 781.

  14. ‘Article 440. A foreign court has jurisdiction to resolve civil disputes and request that a foreign court that has issued a judgment or decision that is currently under consideration for recognition and enforcement in Vietnam has jurisdiction to resolve the civil case in the following cases: 1. Civil cases that do not fall under the exclusive jurisdiction of Vietnamese courts as stipulated in Article 470 of this Code.’ This provision is linked to Art. 439 on Civil judgments and decisions of foreign courts that are not recognized and enforced in Vietnam, para. 4: ‘A foreign court that has issued a judgment or decision that does not have jurisdiction to resolve the civil case as stipulated in Article 440 of this Code’.

  15. Available at: https://tinyurl.com/mrx2bk4u (accessed 19 February 2024).

  16. ‘Article 472. Returning the Complaint, Request, or Suspension of Civil Cases with Foreign Elements in Cases of Arbitration Agreements, Choice of a Foreign Court, or Existence of a Foreign Court, Arbitrator, or Other Competent Authority or When the Parties Are Entitled to Exemption from Legal Proceedings.

    1. The Vietnamese court must return the complaint, request, or suspension of civil cases with foreign elements if the civil case falls under the concurrent jurisdiction of the Vietnamese court but meets one of the following conditions:

    a) The parties have agreed to choose a dispute resolution method as stipulated by the law applicable to civil relations with foreign elements and have chosen arbitration or a foreign court to resolve the case […]’.

  17. Art. 472(1)(c): ‘Return of a lawsuit petition or written request or suspension of the settlement of a civil case or matter involving foreign elements if there has been an arbitral agreement or a foreign court selection agreement or it has been settled by a foreign court, arbitrators or another foreign competent agency or a party is entitled to judicial immunities.[…]. 1. The Vietnamese court shall return a lawsuit petition or written request or suspend the settlement of a civil case or matter involving foreign elements if the civil case or matter falls under the general jurisdiction of the Vietnamese court and falls in one of the following cases: […] c/ A civil case or matter falls outside the exclusive jurisdiction of the Vietnamese court in accordance with Article 470 of this Code and has been accepted for settlement by foreign arbitrators or a foreign court; […]’.

  18. Võ (2020), p. 3.

  19. File with the author.

  20. Trương (2020), p. 778.

  21. Available at: https://congbobanan.toaan.gov.vn/2ta1176341t1cvn/chi-tiet-ban-an (accessed 19 February 2024).

  22. In Art. 14 of the contract dated February 21, 2017, the parties agreed upon the following: ‘Any disputes, disagreements, or claims arising from or related to this contract, including any questions related to the existence, validity, invalidity, violation, or termination of the contract or any disputes related to any obligations outside of this contract arising from or related to the contract shall be referred to and resolved by arbitration under the administration of the Singapore International Arbitration Centre (SIAC) in accordance with the SIAC Arbitration Rules’.

  23. See p. 16 of the Judgment.

  24. Nguyễn and Nguyễn (2024), p. 12.

  25. Nguyễn and Nguyễn (2024), p. 11.

  26. APPIL (Asian Principles of Private International Law) and its Perspective Regarding International Jurisdiction, available at: https://www.ritsumei.ac.jp/acd/cg/law/lex/rlr37/004uematsumao.pdf (accessed 19 February 2024).

  27. Nishioka (2021), p. 91.

  28. Nishioka (2021), p. 96.

  29. Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (OJ L 351 20.12.2012, p. 1), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:02012R1215-20150226#tocId100(accessed 19 February 2024).

  30. ‘The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties: (1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated’.

  31. Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters, OJ 2001, L 12/1.

  32. Regulation (EU) No. 1215/2012 of the European Parliament and of the council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (recast), OJ 2012, L 351/1.

  33. Kieninger (2017), p. 895.

  34. Nguyễn and Nguyễn (2024), p. 12.

  35. Gaillard and Siino (2021), para. 20, p. 232.

  36. Gaillard and Bermann (2017), para. 20, p. 232.

  37. Gaillard and Bermann (2017), para. 5, p. 228.

  38. ‘Article 14. Dispute Resolution in Business Investment Activities

    […]

    3. Disputes among investors, at least one of whom is a foreign investor or an economic organization specified in points a, b, and c, Clause 1, Article 23 of this Law, shall be settled through one of the following bodies or organizations:

    […]

    c) Foreign arbitral tribunals;

    d) International arbitral tribunals;

    dd) Arbitral tribunals established by agreement of the disputing parties’.

  39. Nguyễn and Nguyễn (2024).

  40. Đỗ (2020), p. 139.

  41. Available at: https://tinyurl.com/5d92vabc (accessed 19 February 2024).

  42. Moreover, it is worth noting that the current draft of the new Land Law has incorporated provisions delineating the jurisdiction of Vietnamese arbitrators in matters stemming from commercial activities linked to land. Art. 236(5) reads: ‘Jurisdiction for Resolving Land Disputes: Disputes arising from commercial activities related to land shall be resolved by the People’s Court in accordance with civil procedural laws or by the Vietnamese Commercial Arbitration Centers in accordance with laws governing commercial arbitration’.

  43. Đỗ (2023), p. 26.

  44. Trương (2020), p. 789.

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  1. Head, International Law Department, Hue University of Law, Hue, Vietnam

    Trinh Thị Hồng Nguyễn

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Nguyễn, T.T.H. Examining the Breadth and Conformity with Global Standards of Vietnamese Courts’ Exclusive Jurisdiction in International Commercial Contracts Pertaining to Immovable Property Within Vietnam. Neth Int Law Rev 70, 383–399 (2023). https://doi.org/10.1007/s40802-024-00249-5

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