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

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 Priva

LUND UNIVERSITY

H ANOI LAW UN IVER SITY

FACULTY OF LAW

JURISDICTION OVER CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS

IN VIETNAMESE AND SWEDISH LEGISLATION

- UNDER THE APPROACH OF COMPARATIVE STUDY

SPEC IA LTY : INTE R N A TIO N A L AND C O M PA R A TIV E LAW

CODE: 60 38 60

MASTER OF LAW THESIS

STUDENT: DONG TH I KIM TH OA

2 GENERAL THEORITICAL ISSUSES ON JURISDICTION OVER

CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS 7

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

2.1.4 Some main bases of jurisdiction o f the courts in International civil

2.1.5 Some special issues on the court’s jurisdiction in the international

2.2 The systems of courts and legal documents on jurisdiction over civil

2.2.2 The systems o f legal framework on jurisdiction over civil disputes

3 THE RULES OF COURTS’ JURISDICTION IN SWEDISH AND

3.1.1 Domicile, nationality and other personal connecting factors 25

3.2 Jurisdictional rules for some particular kinds of dispute 31

3.2.1 Civil, commercial, and labour disputes (or disputes relating to

3.2.2 Matrimonial and family disputes

39

4 THE ISSUES ON IMPROVING VIETNAMESE LAW ON

JURISDICTION OVER CIVIL DISPUTES CONTAINING

FOREIGN ELEMENTS IN THE PROCESS OF INTERNATIONAL

4.1 The reasons for continuously improving Vietnamese law 47

4.1.1 Some fundamental point of views o f the Communist Party o f Vietnam 47 4.1.2 Some requirements o f rapidly and effectively settlement civil disputes

4.1.3 A number o f outstanding problems of the system of Vietnamese

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

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

Novem ber 2004

APEC Asia Pacific Economic Cooperation

BTA Agreement between the United States o f America and the

Socialist Republic o f Vietnam on Trade Relations

ECJ Court o f Justice o f the European Communities

EFTA European Free Trade Association

ICSID International Central for Settlement o f Investment DisputesSFS Swedish Collection o f Statues (Svensk Forfattning Samling)ƯNCITRAL United Nations Commission on International Trade Law

1 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 Vietnam ese 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

A t 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 M ember 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 M oreover, 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 judgm ents in civil and commercial matters need to be considered as a very necessary thing to do

Up to now, there has not h a d any study in Sweden and other E U M ember 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 elem ents 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 Sw edish 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 p resen t particular contents related to principles

o f dealing with conflicts o f ju risdiction 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

developm ent and current ju risd ictio n a l 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 elem ents

M ore 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 Vietnam ese and Sw edish legal framework, and why; and (ii) how to improve V ietnam ese law on jurisdiction over civil disputes containing foreign elem ents in the process o f international integration

1.3 Limitations

A part 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 c u se s on only the issues related to the c o u rt‘s jurisdiction

The issues relates to the arbitration’s jurisdiction are very interesting, but will be excluded because o f the th esis’ lim ited framework M oreover, 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 judgm ents Despite o f that, the

thesis only fo c u 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 tw o deferent national legal systems under a

comparative m ethod, the thesis will not present all o f their theoretical and practical

issues but m ainly concentrates on some most general and important provisions in

some fundam ental Sw edish a n d Vietnamese legal documents in order to draw an overview o f the system o fju risd ictio n a l rules.

Eventually, the resolutions for im proving Vietnamese law in the thesis also focus on

jurisdictional rules o f the courts in settlement o f civil disputes containing foreign elem ents M oreover, they are only considered as the first results o f studying Thus, they must be m ore perfected

In Sweden, some m ain 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 (M aarit Jaintera-Jareborg, 1997), Swedish ju dicial 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 (K etilbjom Hertz, 1998), Laws relating to international commercial disputes (Jonathan Hill, 1998), Jaffey on the Conflict o f Laws, (CMV Clarkson and Jonathan

H ill, 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 Vietnam ese 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 foreig n 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 m aterials 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 aim s 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 a n d an analytic m ethod are used as the main m ethods throughout the main

parts o f the thesis, not only w ith the m ain purpose to highlight sim ilarities and differences, but in order to explain the reasons, to underline the problem s o f the

objective as well as the solutions for them Besides that, historical method,

descriptive a n d synthesis m ethods will be used to present in b rief the historical and

perspective o f legal fram ew ork and w hat has been developed in this subject

1.6 Disposition

Aside from a general introduction (chapter 1), the follow ing contents will be

concluded in this thesis:

Some general theoretical issues on jurisdiction in dispute settlem ent in International

private law will be presented in chapter 2 in order to describe the definition and

scope o f subjects o f jurisdiction in disputes settlem ent, 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 rem arks o f the perspective of the legal framework

C hapter 3 w ill present the current jurisdictional rules o f the courts over disputes

containing foreign elem ents in V ietnam ese and Swedish International Private Law

C hapter 4 aims to analyse the issues on continuously im proving Vietnam ese 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 on ly in Sw edish, excep t som e

books such as S w ed ish con flict o f la w s (H ild in g Eek, 1965), “S w ed ish la w in the n ew m illennium ”

(M ichael Bogdan, ed, 20 0 0 ).

2 The legal docum ents are used in this research m ainly conclude: The B russels conventions and regulations in EU legislation, T he Sw edish C ode o f Judicial Procedure, Judicial A ssistance

A greem ents betw een Vietnam and som e other countries and the V ietn am ese C ode o f C ivil Procedure, ect.

3 See the section 1.4 (as m entioned above).

2 General theoritical issuses on

containing foreign elements

2.1 Some main concepts

2.1.1 The concept of “civil dispute containing foreign elements”

- C ivil disputes

The concept o f “dispute” is usually used to signify a “general state o f two or more than individuals, which is created by some significations o f conflicts”4 Under Vietnam ese dictionary5, this concept is explained as a fight o f a conflict which often

o f interests between the parties In the legal approach, a dispute is the difference and contradiction relating to rights, interests or obligations between the parties when they take part into legal relationships Up to now, there is no any legal document, which

m entions to the definition o f “dispute” A classic definition was given by the Perm anent Court o f International Justice in 1924 in the Mavrommatis case: “A dispute is a disagreement on a point o f law o f fact, a conflict o f legal views or of interests between two persons”6

Civil disputes are understood that disputes arise out o f the civil relationships So,

w hat is a civil relationship? In Vietnamese civil law, it is explained under a narrow

m eaning and a wide meaning Under the narrow meaning, civil relationships include relations o f property and personal and non - property relations which arising out of the civil transactions7 In the wide meaning, according to points o f views o f all most

o f Vietnam ese legal experts, this concept has a unified meaning that “relations between persons with each other in the daily life, in consumption or in manufacture and business which based on the criteria o f equal and freedom o f intention8 Therefore, civil relations conclude civil relations and others such as commercial relations, labour relations and matrimonial and family relations This is suitable with Swedish law and other countries’ law as well as the objects o f Private International Law

A part from the ways o f determining civil relations under narrow and wide meaning,

in fact these relations were adjusted by different legal documents in a long period of time Up to now, under an uniform determination o f the concept o f civil relations

4 V ilhelm Aubert, C ou rt a n d con flict resolu tion (The Journal o f C onflict Resolution, V ol 11 N o l

Law and C onflict Resolution, 7 /3 /1 9 6 7 ), p.25.

5 Linguistics Institute, Vietnam ese dictionary, (D a N ang Publishing, 1998).

6 John C ollier and Vaughan Low e, The settlem en t o f dispu tes in In ternational L aw , (Oxford

U niversity Press, 1999), p l.

7 Pursuant to Article 1 o f The Civil Code o f 1995.

8 N guyen C ong Khanh, The law s o f c ivil relation s con tain in g fo re ig n elem ents, (D octor o f law

dissertation, H aN oi Law University, 2003), p 14.

7

under the wide meaning, the mechanism o f resolving disputes o f civil, commercial, labor, matrimonial and family has been adjusted in one legal documents9.

The 1968 Brussels Convention on jurisdiction and the enforcement in civil and commercial matters (hereinafter referred as the 1968 Brussels Convention)

m entioned to “civil and commercial matters”, so this proves that commercial matters

do not belong to the concept o f civil matters However, this Convention did not give any definition about “civil and commercial matters” Under an explanation was given

by the Court o f Justice o f European Communities- ECJ, this concept has an autonomous meaning and it is not for the courts o f Contracting States to determine the conception o f their own legal system The ECJ has taken a view that the dividing line between civil and commercial matters and public law matters is to be determined

by a function test rather than an institution one The fact that one o f the parties is a public authority does not mean that the situation falls outside the scope of Conventions; proceedings brought by a public authority are not to be regarded as involving civil and commercial m atters10

The scope o f “civil and commercial matters” is determined similarly in Sweden and other M ember States o f European Union based on the Brussels regime on jurisdiction and recognition and enforcement in civil and commercial matters However, in the

1968 Brussels Convention, the basic formula “civil and commercial matters” is not defined Article 1 o f this Convention gives an applicable scope which not extend to revenue, custom s or adm inisttative matters, as well as matters relate to i) the status or legal capacity o f natural persons, rights in property arising out o f a matrimonial relationship, will and succession; ii) bankruptcy, proceedings relating to the winding-

up o f insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; iii) social security; and iv) arbitration

In Vietnamese civil procedure law, there is a distinction between “dispute” and

“m atter” or “case” which often also used in Swedish law and EU legislation A

“case” is a broader concept which includes disputes and non-conflict orders (such as

in matters concerning personal factors or legal events11 This is very important for determ ining the scope o f disputes in civil procedure law as well as in international civil procedure law

In conclusion, based on theories o f the objects and the range o f adjustment o f Vietnam ese and Swedish Private International Law, it is necessary to determine that the concept o f “civil disputes”, in this thesis, is understood under the wide meaning

w hich includes civil disputes, commercial disputes, labor disputes, matrimonial and family disputes

- Foreign elem ents in civil disputes

W e know that one important issue in Private International Law is to determine foreign elements in civil disputes, because the foreign elements are the specialties of civil disputes containing foreign elements which compared with civil disputes which

9 There are 03 Ordinances on proceedings in civil cases, econom ic - com m ercial cases and labor disputes T hese Ordinances w ill be replaced by the Code o f C ivil Procedure o f 2 0 0 4 which w ill come into force on 1st January 2005.

10 Jonathan H ill, The law rela tin g to international com m ercial disputes, 2 nd ed.(LLP London -

H ongK ong, 1998), p 60.

' 1 Under A ticle 1 o f the Code o f C ivil Procedure o f 2004.

not contain foreign elements, and this leads to a distinction between disputes do or do not belong to the range o f adjustment o f Private International Law In the legal science o f Sweden and other EU countries, the foreign elements in the case may be events which have taken place in a foreign country or countries, or they may be the foreign domicile residence or place o f business o f the parties12 “Foreign” elements

m ay be similar to “international” elements in which the facts o f the case or the parties have some connections to one or more other countries In other words, a case containing international elements is a case in which the parties or other relevant issues are connected with more than one country13 “International” elements can

m ake a mechanism, in which national courts have jurisdiction over cases, and national laws are applied and finally any foreign judgm ent shall enforce in another countries14

The foreign elements can appear in one o f three basic fields o f conflict o f laws (Private International Law) that conclude (i) jurisdiction, (ii) the choice o f law and(iii) recognition and enforcement o f foreign judgments The first point which may have to be divided in a case containing foreign elements is whether a national court has power to deal with the case at all The rules that direct the court whether it has jurisdiction and/or whether it should exercise jurisdiction to hear such a case that involved only the most tenuous connection with its country, so called as jurisdictional rules (or the choice o f jurisdiction rules)

In Vietnamese legal science, determination o f “foreign elem ents” is an important issue and it has been provided particularly in some legal documents Although the civil relations containing foreign elements, especially in family law, had occurred for

a long time ago and had adjusted by law s16, but the concept o f “civil relation containing foreign elements” only had been moved the first time in the Civil Code of

199517 (Article 826) as follows: “Civil relation with a foreign element is understood

in this Code as a relation in which one o f the parties o f which is a foreign individual

or legal person; or as a relation whose grounds for creation, alteration or termination have been rooted in a foreign country; or as civil relations whose contents involves a property that is located in a foreign country” Under this provision, there are three significations to determine “foreign elements” in a civil relation: (i) subjects, who are foreign individuals or foreign legal person, (ii) grounds for creation, alteration or termination; and iii) property concerns to that relation that located in an foreign country Under the theories o f conflict o f law (Private International Law) and apart

12 C M V Clarkson and Jonathan H ill, Jaffey on the C onflict o f L aw s, 2 nd ed (Butter Worths Lexis

N e x is T M , 2 0 0 2 ), p l.

13 Ibid, p 3.

14 For the purposes o f the conflict o f laws, a “country” is any territorial unit having its own separate system o f law, whether o f not it constitutes an independent state politically O f court, it does not follow that a country, for conflicts purpose, can not concede with a sovereign independent state for the purpose o f public International law Indeed, usually they with coincide, for many states have a

uniform legal system through out their territory (CM V Clarkson and Jonathan Hill, Jajfey on the

C on flict o f L aw s, 2nd ed (Butter Worths L exis N ex is TM , 2002), p.4).

I5CM V Clarkson and Jonathan H ill, Jaffey on the C onflict o f L a w s, 2 nd ed (Butter Worths Lexis

from the point o f views that the Civil Code must be an original law o f the fields of civil, commercial, labor and matrimonial relations, the above provision must be applied to determine the foreign elements in all o f these relations However, there have had many provisions in other legal documents which also give definitions of foreign elements This may be explained by the fact that there has not had a uniform rule for applying Article 826 o f the Civil Code for all o f civil relations which are objects o f Private International Law.

In proceedings o f civil cases, pursuant to Article 405 o f the Vietnamese Code o f Civil Procedure o f 200418, a “civil case with foreign elements is a civil case in which

at least one o f the parties is a foreign individual, or Vietnamese persons domiciled in foreign countries; or a civil case between the parties which are Vietnamese citizens

or legal persons but the grounds for creation, alteration or termination under foreign law or have been rooted in an foreign country, or civil case whose contents involves

a property that is located in a foreign country” Under this provision, there also are three significations to determine foreign elements in a civil case However, it still has some differences with those in Article 826 o f the Civil Code o f 199519

A t present, there is not any particular definition o f “civil dispute containing foreign elem ents” in Vietnamese and Swedish law, even in EURO law From the analyses

above, a basic definition o f it may be established as follows: “Civil disputes

containing fo reign elements are conflicts o f rights, interests and/or obligations between the parties who take p a rt in all o f civil relations (include civil disputes in a narrow scope, business and commercial disputes, labor disputes and matrimonial

a n d fa m ily disputes) which containing foreign elem ents”.

- Classifications o f civil disputes containing foreign elements

The laws o f aliens in Sweden and other EURO countries are applied in the fields of family law, contracts and property According to some Swedish legal experts, there are some m ain groups o f civil relations which axe (I) contracts, torts and property cases and (ii) family law and inheritance cases20

In V ietnam , civil disputes containing foreign elements used to traditionally be divided into some groups o f civil disputes, business and commercial disputes, labor disputes and matrimonial and family disputes21 Under the Vietnamese Code o f Civil Procedure o f 200422, there are about 40 kinds o f civil disputes The Swedish Code of Judicial Procedure o f 1942 (SIS 1998: 65) did not have the way o f classifying as the same as this in Vietnam, but also give about 15 kinds o f civil disputes in the Chapter

10 o f this Code In fact, they are only groups o f disputes which conclude many particular disputes with deferent contents and characteristics

18 This C ode w as approved by the National A ssem bly o f the Socialist Republic o f Vietnam on 15th June 2 0 0 4 and w ill com e into force on 1st January 2005 A side from this Code, there is The Code o f Criminal Procedure o f 2003).

19 This issue w ill be presented more particularly in the next Chapter o f this thesis.

20 See M ichael Bogdan and David I Fisher, Private International Law, in M ichael Bogdan, ed.,

“S w ed ish la w in the new m illennium ”, (Norstedts Juridik Elander Gotab, Stockholm , 2000), p 496-

4 99.

21 Under A rticle 2 5 , 27, 29, 31 The Code o f Civil Procedure o f 2004.

22 Pursuant to Article 25, 27, 29, 31.

So that, in Vietnam and Sweden, although the scope of civil disputes is similar but there is some differences in the way o f classification For instance, all o f contract disputes are put into one kind o f dispute in Swedish legal science, but they are separated into some groups and put into some kinds o f dispute in Vietnamese legal science23 O f course, this does not effect to the range o f adjustment o f Private International Law.

2.1.2 The concept of “jurisdiction over civil disputes containing elem ents”

The concept o f “jurisdiction” is generally used to signify the powers to give a decision in a case based on provisions o f laws In the book “Conflict in a nutshell”, David D.Giegel presented: “Before a court can render an effective judgment, it needs

“jurisdiction”, which in this context refer to a state’s dispute - resolving power exercised either through its court system or through some quasi-judicial body, like an arbitration panel or administrative board”24 Jurisdiction can be initially divided into two broad categories: (i) jurisdiction o f the subject matter and (ii) jurisdiction o f the person which has a further subdivision is rem jurisdiction25

In the international law, according to Michael Akehurst, there are 4 parts in an state’s jurisdiction: (i) the power o f one state to perform acts in the teưitory o f another o f a state’s (executive jurisdiction); (ii) the power o f the courts to try cases involving a foreign elem ent (judicial jurisdiction); (iii) the power o f a state to apply its laws to case involving a foreign elem ent (legislative jurisdiction); and its effect is whether states are under a legal duty to recognize the exercise o f jurisdiction by other states26.Under Vietnam ese dictionary, “jurisdiction is power o f examine and decide one issue under the law s”27 According to Jurisprudence dictionary, jurisdiction is understood

as a synthetic o f right and obligations as well as decisions o f state bodies regulated

by laws”28 Some authors gave a separated definition, such as: “Judicial jurisdiction

o f a court is a synthesis o f powers provided by laws in which the court has the rights

to judge particular cases and give decisions for them or to ensure all o f judicial activities in a particular scope and limitation”29 In Private International Law, jurisdiction in the international civil procedure is the jurisdiction o f the courts o f a particular States over civil disputes containing foreign elem ents30

There are four m ain methods o f settlement o f disputes in conflict o f laws (Private International Law) which are: (i) negotiation, (ii) conciliation, (iii) arbitration and(iv) judgm ent by courts N egotiation and conciliation are considerer as the methods

o f self-resolution31; while arbitration and justice by courts32 are considered as the

23 Under Article 2 5 , 29, 31 o f the C ode o f C ivil Procedure o f 2004.

24 D avid D S iegel, C on flict in a nutshell, 2 nd ed (St Paul Minn W est Publishing Co., 1994), p.31

25 Ibid, p.31

26 M ichael Akehurt, “J u risdiction in In ternational law ", in w M ichael Reisman, ed, Jurisdiction in International law (Ashgate: Dartmouth, 1999), p 25)

27 Institute o f linguistics, Vietnam ese diction ary, (D a N ang publishing, 1998)

28 Ju rispru den ce D ictio n a ry (E ncyclopedic Publishing, 1999), p.459.

29 N guyen Van Huyen, Ju risdiction o f the cou rts in crim in al cases, (D octor o f law dissertation, Hanoi

Law U niversity, 20 0 3 ), p.2

30 Law Faculty o f H aN oi National University, Textbook o f P riv a te In ternational L aw , Prof Nguyen

B a D ien ed (The Publishing o f Hanoi National University, 20 0 1 ), p 337.

31 Although in conciliation usually has a third person but its nature still is self-resolution.

- 1 1

methods o f justice Justice is a jurisdictional method through legal decisions o f the courts and arbitrations within their competences Therefore, in laws o f jurisdiction, there are only courts and arbitrations who are subjects o f jurisdiction.

In case that there has not had any uniform definition o f jurisdiction in Private

International Law, a basic definition may be established as follows: Jurisdiction over

civil disputes containing foreign elements is a synthesis o f pow ers o f the courts or arbitrations which are judicia l bodies or quasi - judicial bodies in settlement o f civil disputes containing foreign elements.

Because o f the research limitation and the th esis’ fram ework, all o f contents presented below only concentr settlem ent in Private International Law.

In a civil case involving a foreign element, the first thing that a court has to decide is

w hether it has jurisdiction This refers to “the question o f whether country’s court will hear and determine an issue upon which its decision is sought”33 In this sense, it

is “exclusive jurisdiction” in which the term “jurisdiction” means adjudicatory competence34

Theories o f jurisdiction in conflict o f laws (Private International Law) has pointed out that there are three basic problems in determining whether a court has jurisdiction: first, whether there is a basic o f jurisdiction; secondly, whether even though there is a basic o f jurisdiction, the court will decline to exercise that jurisdiction; and thirdly, whether there is a subject matter limitation in relation to jurisdiction35

It is also necessary to note that the scope o f jurisdiction concept in Private International Law covers all o f jurisdiction in i) determining judicial jurisdiction, ii) applying the laws and (iii) jurisdiction o f recognition and enforcement foreign judgm ents O f course, the determination o f these kinds o f jurisdiction has only a relativity meaning, because o f the estimate connection between them: a court has automatically jurisdiction in choice o f applicable law in resolution o f dispute if it has jurisdiction over these disputes36

32 The arbitration method is adjusted by arbitration law in w hich disputes are solved through arbitrators w ho is trusted by the parties Justice is a method in w hich disputes are resolved through judicial procedure and the courts’ power is on b eh alf o f States.

33 James J Fow cett and Paul Torremans (1 9 9 8 ), Intellectu al P ro p erty an d P riv a te International

la w ,(O x fo rd U niversity Press), p 1

34 Jonathan H ill, The la w re la tin g to In ternational C om m ercial d ispu tes, 2nd ed., (LLP London -

2.1.3 The conflict o f jurisdiction in Private International Law and rules of jurisdiction of the courts

2.1.3.1 Jurisdictional conflicts

In Private International Law o f many courrtries, a “judicial jurisdictional conflict” is understood as a phenomenon in which the courts o f different countries have justifiability and jurisdiction over a dispute containing foreign elements In this situation, those courts may exercise jurisdiction with the same parties and the same cause o f action in two different States and they may have conflict judgm ents for only one case It is a popular phenom enon in theories and practices o f settlement of disputes containing foreign elements, because o f some basic reasons as follows: (i) the nature o f these disputes which usually concerning two or more than two countries and (ii) different countries often have their own laws which they may not similar to each other Therefore, jurisdictional conflicts usually exist in the field of international civil procedure unless States establish general rules o f determining their courts’ jurisdiction

2.1.3.2 Jurisdictional rules and their benefits

In order to prevent jurisdictional conflicts in resolving disputes containing foreign elements, conflict o f laws (Private International Law) has a requirement of determining rules to point out a particular States which has competent courts They are so called “rules o f the choice o f forum” or “jurisdictional rules”

As things mentioned above, the choice o f forum and the choice o f applicable law and recognition and enforcement foreign judgm ents are three main issues in Private International Law37 and they have a very close connection with each other So, jurisdictional rules are very important in Private International Law They prevent conflicts between different legal systems by pointing out which particular national court who has jurisdiction and which law system can be applied In Swedish conflict

o f laws, the function o f these particular rules is to ensure rational and ju st solutions

in cases containing foreign elements or otherwise connected with foreign elements or otherwise containing with foreign country38

Jurisdictional rules have an important role in the whole o f process o f dispute resolution In the starting point o f this process, jurisdictional rules are applied to solve conflict o f jurisdiction The next step is to determine the law should be applied

to deal with the case So, the determination o f jurisdiction always effects to the choice o f laws, because o f a fact that the national courts often apply their domestic

law for the cases which fall into their jurisdiction (the principle o f lex fori).

The purpose and content o f jurisdictional rules are to determine the jurisdiction o f the courts o f a particular state Their object is an appropriate forum for a civil case containing foreign elements Therefore, conflict-of-laws problem arise in cases involving “foreign elements”, that is matters, which by their nature cannot be

37 In V ietnam ese Private International Law, there are also three main issues as w ell as in EU countries

H ow ever, aside from these, V ietnam ese Private International Law has the fourth point which includes rules o f legal positions o f foreign individuals, foreign legal persons and foreign states in all o f relations that belong to scope o f adjustment o f Private International Law.

38 H ilding Eek, The S w edish C on flict o f lew s, (Martinus N ijhoff/T he Hague, 1965), p 1.

13

conveniently disposed o f simply by reference to a “domestic” rule o f law o f the forum These problems can be reduced to three classical areas: the choice o f the forum (jurisdiction), the choice o f the governing law, and the recognition and enforcement o f foreign judgm ents and arbitral awards39 W hen a national court is seised with a case containing foreign elements, it must first determine whether it has jurisdiction over the cause o f action and the parties involved Three fundamental questions that most typically arise in relation to the jurisdiction o f the courts over a civil dispute involving foreign elements are: (i) when, and on what conditions, will the courts have or assume jurisdiction to hear and determine a dispute; (ii) when, and

on what conditions, will the courts decline to exercise jurisdiction; (iii) when, and on what conditions, will the courts stay an action properly brought pending the

resolution o f the same or similar issue in a foreign court? These questions create two

levels o f jurisdictional rules that: (I) the international level which directs a particular state has jurisdiction to deal with the case and (2) the national level which directs a particular court o f that State will exercise its jurisdiction.

Under Swedish Private International Law, a matter for the courts o f this country after the question whether a case is or is not such as to be triable in Swedish courts will be: what court within the country is the “proper forum”; in other words the question

o f the distribution o f cases between different courts under internal procedure law (so called “forum rules”)40 This is similar to Vietnamese law as well as theories of Private International Law

2.1.4 Some main bases o f jurisdiction of the courts in International civil procedure

Vietnamese laws, Swedish law as well as other countries’ law have particular jurisdictional rules in dealing with disputes containing foreign elements These rules may be similar, but even may be different with each other In case o f differences between these rules, it is necessary for Private International Law to establish particular measures in order to resolve conflict o f jurisdiction by pointing out an appropriate forum Because o f a fact that civil disputes containing foreign elements always concern with two or more counừies, the States need establish some international treaties in order to determine uniform and particular rules o f judicial jurisdiction o f each State In generally speaking, there are some main bases of jurisdiction which conclude: i) the litigators’ nationality; ii) the connections between the case and the territory o f the State has competent courts; iii) the litigators’ agreements; and iv) similar application o f jurisdictional rules41:

(1) The factor o f litigators’ nationality is used popularly Vietnamese law and many

countries’ law provide that their national courts have jurisdiction if one or the parties

in the case is or are their national(s) In the most civil law systems, such as those operating in continental Europe and the former colonies o f those countries, the test of

39 D Lasok and p A Stone, C on flict o f law s in the E uropean Com m unity (Professional books limited,

1987), p.3.

40 Hilding Eek, The Sw edish C onflict o f law s, (Martinus N ijjhoff/T he H ague/ 1965), p.74.

41 Law Faculty o f Hanoi N ational U niversity, T extbook o f P riva te In ternational L aw , Prof N guyen Ba

Dien, ed (Hanoi National University Publishing, 2 0 0 1 ), p.340 and continuous pages.

“belonging” to a country for conflict o f laws purpose is nationality42 Most of continental European and other civil law countries use nationality as the basic connecting factor, especially for choice o f law purposes; the personal law is the law

o f the country o f which the person is a citizen43

(2) The factor o f close connections between the fa c t o f the cases and the territory o f

the country has a competent court, such as parties have the domicile, habitual

residence or their physical presence within the State’s territory when proceeding are started, or property relates to the case which located in this country, or the grounds for creation, alteration or term ination have been rooted in this country

- The connecting fa cto rs o f domicile, habitual residence or physical presence o f the

litigators within the territory o f the State has competent courts

In Swedish conflict o f laws, domicile is equal to habitual residence The place of

“dom icile” o f an individual is the place where such individual usually lives and has a permanent residential registration and if he/she has not this place, it shall be the place where he/she temporary residential registration44 Pursuant to Article 48 o f the Vietnamese Civil Code o f 1995, the place o f domicile o f an individual is the place where such individual usually lives and has a permanent residential registration In case an individual has no permanent residential registration and has no permanent place o f residence, the place o f domicile o f that individual shall be the place where he/she temporarily resides and where he/she has temporarily residential registration

W here an individual’s place o f residence cannot be determined pursuant to these criteria’s, the place o f domicile o f that individual is the place where he/she lives or works, or the place where his/her assets are present or where most o f his/her assets are present, if that individual has assets in different places

The concept o f “habitual residence” is one clearly suited to m odem conditions where people more around the world with greater ease than in the past and is ideally suited for purposes such as divorce jurisdiction or child abduction where the aim is not to establish a “real hom e” but rather to identify a jurisdiction with which a person has a legitimate connection W ith a more m odem and realistic concept o f domicile, one could then engage in a functional analysis to determine which connecting factor, domicile or habitual residence (or even, perhaps sometimes, nationality) is most suitable for each conflicts rule45

- The close connection between the subject - matter o f a case with the territory o f the

State has a competent court

It would be perfectly reasonable for that State to exercise jurisdiction over the case if

it had a close connection with that state At the present days a very large number of States claim jurisdiction founded on the subject - matter o f cases M oreover, there

42 CM V Clarkson and Jonathan H ill, Jaffey on the C onflict o f Law s, 2 nd ed (Butter Worths Lexis

are obvious advantages in attributing jurisdiction to the state where the facts occurred4

(3) The factor o f litigators’ agreements This is not a popular factor which

considered a base o f determining jurisdiction in all m ost o f countries, but some countries accept jurisdiction over the cases in which has an agreement about the choice o f an appropriate forum by the parties, although there is not any connection betw een the case and these countries

(4) Besides the above bases o f jurisdiction, some States accept the similar application

o f jurisdictional rules o f other States or o f international law in case o f there is not any international jurisdictional rules in their national law systems

T he legal bases for determining jurisdiction in the international level are normal conflict rules which only point out jurisdiction o f the courts o f the State who has enacted them and natural conflict rules which not only point out a particular State but particular courts o f that State shall exercise jurisdiction In the international (multilateral or bilateral) treaties, States may determine unified conflict rules which only point out the competent courts o f each state As well as other countries,

V ietnam and Sweden now also apply these rules

2.1.5 Some special issues on the court’s jurisdiction in the international civil procedure

2.1.5.1 Exclusive jurisdiction

Despite o f having jurisdictional rules based on particular connections, such as nationality, domicile, habitual residence o f the litigators or close connection between the subject - m atter o f the case with the State exercise jurisdiction, or the parties’ agreements, Vietnamese law, Swedish law as well as other countries’ laws also have some rules o f exclusive jurisdiction Exclusive jurisdiction is jurisdiction which always belongs to the courts o f a particular state, whatever the litigators’ personal connecting factors in some special case For instance, disputes relating to immovable property are always tried by the courts o f the State where the property located,

w hatever litigators’ nationality or domicile or habitual residence The bases o f this jurisdiction are (i) special connections between a dispute and the territory in which has a particular national court, and (il) sovereignty and national interest o f the States Because o f these bases, there often have some legal provisions in which disputes only belong to exclusive jurisdiction o f the courts o f state For example, Article 22 Brussels I Regulation, some articles in Judicial Assistance Agreements between

V ietnam and other countries, or Article 411 o f the Vietnamese Code o f Civil Procedure o f 2004, ect47

2.1.5.2 The theories of forum shopping, declining jurisdiction and stay an action in proceedings

* Forum shopping- In Private International Law, an argument that the courts should

be open to anyone is particularly forceful when the parties to an international

46 M ichael Akehurt, “Jurisdiction in International la w ”, in w M ichael Reisman, ed, Ju risdiction in

In tern ation al la w (Ashgate: Dartmouth, 1999), p.54-55

47 The contents o f these provisions w ill be presented more particularly in the next chapter o f this thesis.

contract have agreed in their contract that a particular court should have jurisdiction

On the: other hand, there is a formidable case that proceedings should be heard only

in appropriate courts48, which is courts having some genuine connection with either the pairties or the cause o f action Many States encourage the process o f shopping round Ithe w orld’s courts until one finds a court where one is likely to obtain the most

successful out come This is so called fo ru m shopping49.

Forum shopping is a practice which has been defined as “a plaintiff by passing his naturall forum and bringing his action in some alien forum which would give him relief 'Of benefits which would not be available to him in his natural forum”50 Further, if judgm ent is obtained in an inappropriate forum, the defendant may well not have any assets in that jurisdiction against which the judgm ent can be enforced and it may be necessary to commence further proceedings else where to enforce the judgm ent

The doctrine o f forum shopping has been applied in Sweden as well as other European countries for a long time; while it has not researched reasonably in Vietnam There is not any provision that relates to forum shopping in the Judicial Assistance Agreements between Vietnam and some foreign countries as well as in Vietnam ese internal law

Forum shopping leads to other factors in conflict o f law (Private International Law) that are forum conveniens and forum non-conveniens The term o f forum conveniens can be defined as a court taking jurisdiction on forum non-conveniens the ground that the local forum is the appropriate forum (or an appropriate forum) for trial or that the forum aboard is inappropriate It is a positive doctrine, unlike the doctrine of forum non-conveniens, which is a negative doctrine concerned with declining jurisdiction52 Forum non-conveniens can be defined as a general discretionary power for a court to decline jurisdiction on the basic that the appropriate forum for trial is aboard o f that the local forum is inappropriate53

Many countries in Europe (such as French, Quebec, German, Belgium, Dutch,

N etherlands, Swiss, Scandinavian counừ ies ) have also adopted the forum conveniens - type jurisdiction rules Under the Brussels and Lugano Conventions jurisdiction is always allocated to an appropriate forum Many countries adopt forum non conveniens, but in contract many other countries did not adopt this doctrine

48 B efore a (national) court assumes jurisdiction in case involving foreign elem ents, there needs to be

a careful investigation o f all the relevant considerations, such as the interests if the parties and whether, having regard to the events and the evidence, this court is a appropriate forum to decide the dispute.

49 CM V Clarkson and Jonathan H ill, Jaffey on the C onflict o f Law s, second edit (Butter Worths Lexis

(means the civil law jurisdiction have no such general desire stationary power to decline jurisdiction)54.

The phrase “declining jurisdiction” refers to the situation where a court which has jurisdiction refuses to exercise it It is to be distinguished from the situation where the rules on jurisdiction are not satisfied and a court therefore dismisses the action on the basic that it has no jurisdiction In both o f situations, the result is the same: the court refuses to try the action, for the reason o f this is forum non conveniens or a situation in which parallel proceeding and involving the same parties and the same cause o f action, are continuing in two different States at the same time (lis pendens)'s

or a foreign choice o f jurisdiction agreement or an arbitration agreement To avoid this, the parties should get one action decide ahead o f the other which will lead to

problems o f res jud ica ta or a foreign choice o f jurisdiction agreement or arbitration

agreement

* Staying an action in proceedings

In European countries, staying proceeding on the basic o f the doctrine o f forum non convenience has a general principle in which determining the appropriate forum A stay will be granted on the ground o f forum on convenience if the defendant satisfies the court that there is another available forum, having competent jurisdiction, and if there is no foreign forum which is available to the claimant as an alternative forum for resolution o f the dispute the court will refuse to grant a stay (or will give perm ission to serve out)5 In order to determine the appropriate forum, at the first stage, the judge m ust consider which forum is the more appropriate forum by regarding to real and substantial connecting factors with the disputes; and the second stage has to be considered only if, having regard to the relevant connecting factors at the first stage that the judge think it is more appropriate for the dispute to be head by

a foreign court

In Sweden, the doctrine o f forum no convenience is used when the case’s connection with Sweden is very week, Swedish courts may deviate from the exact wording o f the internal forum rules in order to avoid Swedish jurisdiction For instance, if a contract were entered into by two American businessmen when they met in the transit lounge o f Stockholm Airport, without there being any other relevant connection w ith Sweden, Swedish courts might decide to dismiss an action

em anating from that contract despite the wording o f Chapter 10 section 4 o f the Swedish Code o f Judicial procedure57

54 Ibid., pAO.

55 In most countries, the legislator does not recognise the international lis pendens as a ground for lack

o f com petence The courts som etim es avoid givin g judgem ent when the case is already pending in a foreign court and the judgm ent o f that court w ill probably be recognised in their jurisdiction Some treaties in jurisdiction avoid lis pendens by granting jurisdiction to only one court Any other court, seised o f the case, has to declare itself devoid o f jurisdiction Exam ples o f such treaties are the Lugano

C onvention and bilateral conventions on jurisdiction (Hans van Houtte, FCIArb The law o f

In tern ation al Trade, 2nd ed (London Sw eet & M axw ell, 2002), p 350.

56 C M V Clarkson and Jonathan H ill, Jaffey on the Conflict o f Law s, 2 nd ed (Butter Worths Lexis

N ex is TM , 2 0 0 2 ), p 121.

57 J.J.Fawcett, D eclin in g J u risdiction in P riv a te In ternational L a w , (Clarendon Press Oxford, 1995),

p.374.

In Vietnam, Private International Law has not contained any doctrine o f forum shopping, declining jurisdiction based on forum non conveniens and stay proceedings58.

2.2 The systems of courts and legal documents on jurisdiction over civil disputes in Sweden and Vietnam

2.2.1 The Swedish and Vietnamese court systems

In Sweden, the courts can be divided into general courts and special courts There are

two general court organisations: the general courts and the general administrative courts The general courts consist o f district courts, courts o f appeal and the Supreme Court The general courts handle criminal cases and civil disputes between individuals Two special courts deal with civil disputes The Labour Court hears industrial relations disputes, i.e disputes concerning the relationship between an employer and an employee, and the Market Court hears disputes involving competition law and marketing

Certain district courts deal w ith particular types o f civil cases O f Sweden's district courts, 25 are also land courts These courts deal with cases involving expropriation and land parcelling Cases covered by the Environmental Code are dealt with by five district courts, which are also environmental courts Disputes under maritime law are heard by seven district courts, which are maritime law courts There are special rules for disputes under industrial and intellectual property law, especially patents, which give Stockholm district court sole jurisdiction Similar provisions apply to various family law matters involving an international dimension

In Vietnam, the courts can be divided into The People's Court, The Military

Tribunals and the other tribunals established by law59 The People's Court includes the Supreme People's Court and local people's courts (district courts and province court) which are orgnised under the teưitorial principle The function o f people's court is similar to Swedish general courts There are not any special court in Vietnam Vietnam ese law classify the cases60 and put them into each kind o f

"division courts" which belong to the Supreme Court and provincial courts Not all

o f people's courts have jurisdictions over civil cases with foreign elements There are some provisions (for instance, Article 33, 34 o f the Code o f Civil Procedure 2004) restrict the jurisdiction o f district courts, so that these jurisdictions mainly belong to provincial courts and the Supreme People's Court

58 A lthough The C ode o f Civil Procedure o f 2004 has som e provisions on stay an action in

p roceedings, but this issue has not becam e a doctrine in V ietnam ese Private International Law The contents o f these provisions w ill be presented more particular in the next Chapter o f this thesis.

59 Under special circum stances, the National A ssem bly may d e c id e to set up a special tribunal.

60 The cases include criminal case, civil cases, com m ercial/ business cases, labor cases, and administrative cases.

1 9

2.2.2 The systems of legal framework on jurisdiction over civil 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 In Sweden, these two parts are (1) EC/EFTA rules which have original in Brussels/Lugano Convention and other International Conventions and (2) Swedish internal law In Vietnam, they are (1) the Judicial Assistance Agrements and (2) Vietnam ese internal law

2.2.2.I The process of development of legal framework on jurisdictional rules in Sweden61

Sweden belongs to the continental law tradition, which is characterised by it dépendance on statutory law The legal codification began in the 13th century The problem o f the legal position o f foreigners and their property and affair was raised early in Swedish history It was alone in the first stages through the adoption of special rules relating to foreigners (the law o f aliens) and later through the application by national courts o f rules o f law o f foreign countries to matters closely connected with the countries were created In the midle o f the 15th century, the principle o f teritoriality has been accepted in Sweden In the 16th and 17th centuries, there were occasional expressions o f the idea that foreign law could ask for adm ission and application By the midle o f the 19th century, no doctrine o f the conflict o f laws in the proper sence o f the world had been developed in Sweden, although this came into being in the world at large Since 1894, Sweden had participated in the Conference on matters o f Private International Law which had take place in the Hague62 M oreover, Sweden is also a party to conventions eletorated

by international organisations or upon their initiative, such as United Nations, council o f Europe, general law o f Nordic (Inter - Nordic) system, ect So that, Swedish Private International Law has developed strongly in the 20th century In fact, Swedish law has been much influenced by law o f the European Community (EC) and the European Union (EƯ) In the 1950s, Sweden preferred for neutrality reasons to remain outside the customs union o f the original EC countries; instead it joined into the looser network o f the European Free Trade Association (EFTA) During the 1960s, Sweden applied a number o f times for association to the EC but not for full mem bership63 In 1994, Sweden entered into EU and became a EU M ember State from the 1st January 1995 According to principles established by the European Court, Community law acquires direct effect in the M ember Countries and takes precedence over national law64 Therefore, Community law must be mentioned first

in a research o f Swedish Private International Law As well as other EU Member States, there are two main regimes governing the in personam jurisdiction o f the

61 See Hilding Eek, The S w edish C on flict o f law s, (Martinus N ijjhoff/T he H ague/ 1965), p.9 & continuing pages; H ugo Tiberg & Fredrik Sterzel, S w edish la w a su rvey, Par Crouhult ed

^Juristforlaget, JF.AB, Stockholm , 1994), p 37 and continuous pages.

The aim this Confference is to prepare for the negotiations concerning a world convention on international jurisdiction and the recognition and enforcem ent o f foreign judgm ents in civil and com m ercial matters).

63 Tiberg, Hugo & Fredrik Sterzel & Par Crouhult ed S w edish la w a su rvey, (Juristforlaget, JF.AB,

Stockholm , 1994), p.40.

64 Ibid, p 4 1

Sw edish courts The first, which has a European origin, is the Brussels regime (which

is derived from the Brussels Convention on jurisdiction and the Enforcement o f

Judgem ent in Civil and Commercial M atters)65 The second regime are the traditional

rules which apply in cases not regulated by the Brussels regime and/or the modified version which allocates jurisdiction within the Kingdom o f Sweden66

In the field o f civil and commercial matters, in 1968, original six M ember States of the EEC (Belgium, Germany, France, Italy, Luxembourg is the Netherlands) signed the Brussels Convention on Jursdiction and the Enforcement in civil and commercial

m atters67 As the EC expanded procees, the new M ember States acceded to the

B russels Convention In 1978, an accession o f Brussels Convention was signed by the original Contracting States, Denmark, Ireland and the United Kingdom68 The Greece accession Convention was concluded in 198269 A further amendments was taken on the accession o f Spain and Portugal in 1989.70 Austria, Finland and Sweden acceded to the Brussel Convention in 199671 This Convention has been o f greet

im portance for legal practitioners from within, but also outside the European Union

In 1988, the EC M ember States signed a parallel convention with the countries which

w ere then members o f EFTA - the Lugano Convention on jurisdiction and the enforcem ent in civil and commercial matters W ith the main provisions were almost identical to the Brussels Convention, it regulates the relationship between the EC

M em ber States and Iceland, Norway and Switzerland and Poland72

The next developing step o f the Brussels regime was the replacement o f the Brussels Convention by Council Regulation (EC) No 44/2001 o f 22 December 2000 on jurisdiction and the recognition and enforcement o f judgm ents in civil and commercial matters (hereinafter reffered as "Brussels I Regulation”)73 This

R egulation came into force on 1 M arch 2002 and based on the recommendations o f a

w orking party that was set up to consider reform o f the Brussels and Lugano

C onventions74 The jurisdictional rules o f the Brussels I Regulation, which are to a large extent similar to the Lugano Convention, will serve as an illustration o f how the international jurisdiction o f c court is determined75

65 B russels regim e includes: The 1968 Brussels C onvention, The Brussels I and II Regulation, ect.

66 See C M V Clarkson and Jonathan H ill, Jctffey on the C on flict o f L aw s, 2nd ed (Butter Worths Lexis

N e x is TM , 2 0 0 2 ), p.62 - 63.

67 It cam e into force in those States on 1st February 1973.

68 It cam e into force in those States on 1st N ovem ber 1986 for Denmark, on 1st January 1987 for United K ingdom , on 1st June 1988 for Finland.

69 It cam e into force on 1st April 1989.

70 It cam e into force on 1st Feburary 1991 for Spain and on 1st July 1991 for Portugal.

71 The final version cam e into force on 1st D ecem ber 1997 for Austria, on 1st April 1999 for Finland,

on 1st January 1999 for Sweden.

72 A s Poland is today a EU M ember State, it is the Brussels I Regulation and not Lugano Convention that applies betw een Poland and the other M em ber States.

73 This name should be distinguihed with the Council Regulation (EC) N o 1347/2000 on jurisdiction and enforcem ent judgm ent in matrimonial matters w hich called “Brussels II Regulation”.

74 The Lugano Convention w ill be am ended with a view to bring into line with the Brussels I

R egulation - See C M V Clarkson and Jonathan H ill, Jaffey on the C onflict o f L aw s, 2 nd ed (Butter

Worths L exis N ex is TM , 20 0 2 ), p.64.

75 Hans van Houtte, FCIArb The la w o f In ternational Trade, 2nd ed (London Sw eet & M axwell,

2 0 0 2 ), p 353

- 2 1

In the field o f matrimonial causes, the Convention on jurisdiction and enforcement o f judgem ents in matrimonical matters (hereinafter reffered as the Brussel IT Convention) was signed in 1998, and was replaced by Brussels II Regulation which cam e into force in 1 M arch 2000 for all EU countries, except Denmark This Regulation introduce uniform jurisdiction rules throughout EU and provides for alm ost automatic recognition o f all civil and commercial and matrimorial judgement and granted by the courts o f the M ember States.

Beside the direct application o f Brussels regimes, Sweden also has a system of internal rules on jurisdiction over civil disputes which contains (i) The Act on some International M arriage and Guardianship Relationships, 8 Jury 1904; (ii) The Act on inter-questions concerning deceased person's estates,5 March 1937; (iii) The Act on International sales o f movables, 29 June 1964

In the procedural law, there were some statutes about jurisdiction, such as (i) Chapter

10 o f the Code o f Judicial Procedure o f 1942 and the enactments set out after

C hapter 10: 21 o f the Code in the statute-book; (ii) The Act containing certain provisions on foreign state vessels, 1938; (iii)The Act on special privileges for certain international organisations, 1962; (iv) Chapter 15:4 o f the Marriage Code, Chapter 20:1-5, 9, 14, 15, 24, 30 o f the Parents and Children Code; (v) The Act on Brussels Convention (SFS76 1998: 358) and the Act on Lugano Convention (SFS 1992: 794), ect

According to the Brussels I Regulation’s provisions, in situations where the Brussels rules are not applicable, mostly because the nature o f the dispute falls outside the scope o f the Conventions or because the defendant is not domiciled in a contracting state, the jurisdiction o f the courts o f each M ember State shall be determined by the law o f that M ember State In those situations, Swedish courts normally apply the rules in Chapter 10 o f the Swedish Code o f Judicial Procedure (SFS 1942: 740, as

o f the 19th century, despite o f the fact that Vietnam had relationships with foreign countries but they were very limited The law o f aliens only concentrated on nationality matters After 194578, Vietnameses law started to govern more and more civil relations containing foreign elements in every particular field From 1980 to present, Vietnam ese State has been negotiated and signed many Judicial Assistance Agreements and Agreements on trade relations with some countries

There have had 14 Judicial Assisitant Agreements between Vietnam and Germany (12/15/1980), Czech and Slovakia (10/12/1982), Cuba (11/30/1984), Hungary

76 In Sw eden, the acts or other statutes are published in the Swedish collection o f statues - Svensk Forfattning Sam ling (SFS), the first tim e was 1825, and the 121th edition was published in 2000.

77 Michael Bogdan and D avid I Fisher, Private International Law, in M ichael Bogdan, ed., “Swedish

law in the n ew m illennium '’, (Norstedts Juridik Elander Gotab, Stockholm , 2 0 0 0 ), p.496.

78 The years o f declaration o f independence o f Vietnam.

(1/18/1985), Bulgaria (10/3/1986), Poland (3/22/1993), Laos (7/6/1998), China (10/19/1998), Russia (8/25/1998), France (2/24/1999), Ukraine (4/6/2000), Mongolia (4/17/2000), Byelorussia (9/14/2000), Korea - D.P.R (5/4/2002) These argeements are regarded as the main source o f jurisdictional rules At international level7

In the trade and commercial relations, Vietnam has signed about more than 80

A greem ents on trade relations w ith other foreign countries in the world, in which the

m ost im portant and typical one is the Agreement between the United States of

A m erica and the Socialist Republic o f Vietnam on Trade Relations (BTA) o f 200080.However, the ratification o f multilateral treaties are very restricted In the area of international civil procedure and judicial co-operation, Vietnamese State had only ratified the 1958 N ew York Convention on recognition and enforcement o f foreign arbitration awards In fact, many important conventions o f Hague Conference on Private International Law81 have been not ratified by Vietnamese State Moreover, at present, Vietnam is not a M ember State o f European Union, so this country falls outside o f the scope o f governing o f EU law, especially Brussels regimes This differs from Sweden

In Vietnam ese internal law, the mechanisms o f disputes settlement in civil disputes containing foreign elements are provided for in the following documents, such as: 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 n Vietnam o f 1993, the

79 It is necessary to m ention here som ethings about the concept ’’judicial assistance” in Sweden and Vietnam In Sw eden, under the w ide m eaning, this is cooperative activities o f the judicial bodies from different States for dealing with a llo f matters fall in to the scope o f Private International Law, and therefore they contain both o f the ch oice o f juricdiction and the ch oice o f law and other activities which necessary in the process o f dealing with the cases Under the narrow meaning, this concept does not contain the matters o f jurisdiction and applicable law These ways o f understanding the concept are also applied in Vietnam, in which judicial assistance in principle must be in the wide meaning, how ever in fact m ost o f Judicial A ssistance A greem ents determined a narrow scope but contained many provisions on the choice o f forum and the choice o f law.

80 This A greem ent was signed on 13rd July 20 0 0 , was retified by Vietnam ese National A ssem bly on 28th N ovem ber 2001 and cam e into force on 10th D ecem ber 2001.

81 Up to the year o f 20 0 0 , this number is 42 C oventions B etw een 1893 and 1904, the Conference adopted seven international C onventions, six o f w hich have been subsequently replaced by instruments that are more m odem From 1951 to 20 0 2 , the Conference adopted 35 international conventions Until I960, the Conventions w ere drafted only in French; since then they have been drawn up in French and English A m ong those that have been the m ost w idely ratified, the follow ing Conventions should be mentioned: civil procedure, service o f process, taking o f evidence abroad, legalisation, conflicts o f laws relating to testamentary dispositions, maintenance obligations, recognition o f divorces, protection o f minors, international child abduction and inter-country adoption Som e o f the Hague Conventions deal with the determination o f the applicable law, som e with the conflict o f jurisdictions, som e with the recognition and enforcem ent o f foreign judgm ents and some with administrative and judicial co-operation between authorities Som e o f the Hague Conventions com bine one or more o f these aspects o f private international law From time to time, Special

C om m issions are held at The Hague to monitor the practical operation o f Hague Conventions In the past, such C om m issions have been convoked for the Service and Evidence Conventions, the Child Abduction Convention, the Inter-country A doption Convention and the Conventions on maintenance (support) obligations See: http://europa.eu.int/htm (European Judicial Network in civil and com m ercial matters).

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M aritime law o f 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, the Code o f Civil Procedure o f 2004,ect.

In conclusion, there are some similarities between Vietnamese and Swedish legal frameworks on jurisdiction over civil disputes containing foreign elements as well as some differences between these two systems It is necessary to refer two systems o f rules which are the Brussels regimes and Swedish internal law when researching Swedish courts’ jurisdiction In a similar situation, there are also two systems o f rules applied in Vietnam in order to determine Vietnamese courts’ jurisdiction, which are i) the Judicial Assistance Agreements and Vietnamese internal law However, in the international level, Sweden has concentrated on ratifying multilateral treaties82 while Vietnam has mostly signed bilateral agreements This may be the biggest difference between the Swedish and Vietnamese system o f jurisdictional rules Historically, Sweden has been spent more periods o f time in developing Private International Law, therefore this country has had a bigger system o f jurisdiction rules This will be presented more particulary in the next chapter o f this thesis

82 U p to 20 0 1 , Sw eden has ratified 11 Conventions o f Hague Conference on Private International Law

as w ell as som e other Conventions o f U nited N ations related to Private International Law (The Legal

S cience Institute o f M inistry o f Justice o f Vietnam, Theoritical a n d p ra tic a l backgrounds o f a

O rdin an ce on In ternational J u d icia l Assistance, (Legal Science Informations, 2001), p 195.).

3 The rules of courts’ jurisdiction in Swedish and Vietnamese law

3.1 General bases of jurisdiction

3.1.1 Domicile, nationality and other personal connecting factors 3.1.1.1 In Swedish legislation

In the Swedish choice o f law, nationality ruled supreme as a personal connecting factor until 1930’s Since then, domicile has step - by - step become the preferred connecting factor This may in part be explained by the desire o f Sweden, which now has a sizeable immigrant population, to apply its own law to a greater extend than world otherwise be the case8

Nowadays, a general base o f jurisdiction o f Swedish courts to try cases with foreign elem ents, under the Brussels regime, is the defendant’s domicile Article 2(1) o f the

Brussels I Regulation provides that “persons domiciled in a Member State shall,

whatever their nationality, be sued in the courts o f that Member S t a t e For another

com pany or legal persons, Article 60 o f the Brussels I Regulation provides that:

A com pany or other legal person or association o f natural or legal persons is dom iciled at the place where it has its: (a) statutory seat, or (b) central administration, or (c) principal place o f business For the purposes o f the United Kingdom and Ireland statutory, seat means the registered office or, where there is no such office anywhere, the place o f incorporation or, where there is no such place anywhere, the place under the law o f which the formation took place In order to determine whether a trust is dom iciled in the M ember State w hose courts are seised o f the matter, the court shall apply its rules o f Private International Law.

A bout the connection between nationality and domicile, Article 2(2) o f the Brussels I

Regulation provides that: Persons who are not nationals o f the Member State in

which they are dom iciled shall be governed by the rules o f jurisdiction applicable to nationals o f that State.

Besides the factor o f domicile, the Brussels regime also uses the factor o f habitual residence, especially in matrimonial cases Pursuant to Article 3 and 8 o f the Brussels

The “dom icile” connecting factor seemed to be central in the Brussels regime, but it was not particularly defined The Brussels I Regulation only explains how to determine “dom icile” factors Pursuant to Article 59 (1), in order to determine

83 M ichael Bogdan and D avid I Fisher, Private International Law, in M ichael Bogdan ed., "Swedish

law in the new millennium'', (Norstedts Juridik - Elander Gotab, Stockholm , 2000), p 494.

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-whether a party is domiciled in the M ember State whose courts are seised o f a matter, the court shall apply its internal law Therefore, in order to determine whether

a party is domiciled in Sweden, the Swedish court shall apply Swedish internal law.Under Swedish internal law, domicile normally equals habitual residence84 For an individual’s domicile, Swedish general rules on jurisdiction are laid down in the Chapter 10 o f the Code o f Judicial Procedure Pursuant to Section 1 o f this Chapter:

The com petent court for civil cases in general is the court for the place where the defendant resides A corporation, partnership, cooperative, association or similar society, foundation or sim ilar institution is considered to reside at the place where the board has its seat or, if the board has no permanent seat or there is no board, at the place from which the administration is carried out This rule also applies to m unicipalities or similar public authority.

Article 59(2) o f the Brussels I Regulation provides that: “I f a party is not domiciled

in the M ember State whose courts are seised o f the matter, then, in order to determine whether the party is dom iciled in another Member State, the court shall apply the law o f that Member State Because o f that, if a Swedish court seised a case in which a party not domiciled in Sweden, it shall apply English law in order to determine whether that party domiciled in England85

So that, when these rules are applied by analogy to jurisdiction, it means that Swedish courts have jurisdiction to try a dispute if the defendant has his habitual residence or seat in Sweden

3.1.1.2 In Vietnamese legislation

(i) Under Judicial Assistance Agreements, the domicile, habitual residence and

nationality are to be regarded as principle connecting factors in the bases o f the courts’ jurisdiction For instance, the 1998 Vietnam - Russia Agreement provides that:

The courts o f a Contracting State where a spouse resident has jurisdiction to try the matters on personal relations and property relations between the spouses If both o f spouses are nationals

o f other Contracting State, the courts o f this State also have jurisdiction to try the case In case

o f a spouse is a citizen o f a Contracting State and other person is a citizen o f other Contracting State, the courts o f both o f Contracting State have jurisdiction to try the cases (Article 25) The divorce cases belong to jurisdiction o f judicial bodies o f the Contracting State where the spouses are nationals at the tim e o f the divorce application brought to the courts If both o f the spouses resident in other Contracting State, judicial bodies o f that State also have jurisdiction

If a spouse is a citizen o f a Contracting State, other person is a citizen o f other Contracting State, and they dom iciled in different Contracting State, judicial bodies o f the Contracting State where the spouse dom iciled w ill try the cases The courts have jurisdiction to try the divorce cases also have jurisdiction to try the child custody and adoption matters (Article 26).

84 The term ’’residence” w asnot defined, but pursuant to Section 1 o f the Chapter 10 o f the Code o f Judicial Procedure, when the defendant has civil registration in Sweden, the place where he was registered on the first o f N ovem ber o f the preceding year shall be considered to be his residence A person with no known residence in or outside Sweden may be sued at the place where he is sojourning I f he is a Swedish citizen and sojourning outside the Realm or at an unknown place, he may be sued at the place within the Realm where he last resided or sojourned (SFS 1998: 65).

85 Under the English Civil Jurisdicton and Judgment A ct o f 1982, an individual is to be regarded as

d om iciled in England if and only if he is dom iciled in the UK and resident in England and the nature and circum stances o f his residence do not indicate that he has substantial connection with any particular part o f the UK.

The matters arising out o f legal relations between the parents and their child will be tried by judicial bodies o f a Contracting State where the child has nationality, as w ell as by judicial bodies o f a Contracting State where the child dom iciled (Article 28).

Maintenance disputes can be litigated in the courts o f a Contracting State where the claimant resident (Article 29) In disputes concerning m ovable property inheritance, the courts o f a Contracting State where the deceased was a citizen at the time o f his death If all o f m ovable property o f the deceased w ho w as a citizen o f a Contracting State w hich located in other Contracting State, the courts o f that State have jurisdiction if all o f his inheritors have an agreem ent to ch oose the courts o f that State.

Jurisdiction over contract disputes belongs to the courts o f State where the defendant resident

or seat or where the plaintiff resident and the defendant has properties, ect.

M any other Judicial Assistance Agreements between Vietnam and other countries have the similar rules

(ii) Vietnamese internal law will be applied to determine the courts’ jurisdiction to deal with the disputes containing foreign elements in cases o f there are not Judicial

A ssistance Agreements or other treaties on jurisdiction between Vietnam and another countries, or in cases o f there are Judicial Assistance Agreements determine

V ietnam ese courts have jurisdiction In these situations, it is necessary to indicate jurisdiction under both o f international level and national level by applying

V ietnam ese internal law U nder the Code o f Civil Procedure o f 2004, the Vietnamese courts’ jurisdiction to deal w ith civil disputes containing foreign elements is determ ine similarly to jurisdiction to deal with civil disputes containing non-foreign elem ents which provided in Chapter III86 unless Chapter XXXV87 has different provisions It means that, for the courts’ territorial jurisdiction, Article 410 (2) of Chapter XXXV will be applied to determine the Vietnam ese courts’ jurisdiction (in the international level) and Article 35 o f Chapter III will be applied to determine a local competent court will directly exercise its jurisdiction (in the national level).Particularly, under Article 410 (2) o f Chapter XXXV and Article 35 o f Chapter III, the bases o f jurisdiction mainly contain principal personal connecting factors of nationality, domicile and habitual residence For instance, Article 410 (2) provides that: The Vietnamese courts have jurisdiction to deal with civil disputes containing foreign elements in cases o f defendant is a foreign citizen or a foreign legal person dom iciled or seat in Vietnam Pursuant to Article 35, the territorial jurisdiction of

V ietnam ese local courts are based on following connecting factors: i) place where the defendant are domiciling or working or seating (in the civil, matrimonial and commercial cases) and ii) place where the plaintiff are domiciling or working or seating (in the cases in which has a choice o f the plaintiff)

3.1.2 Some other bases of jurisdictional rules88

3.I.2.I In Swedish legislation

(i) Besides the principal connecting factor of domicile, the Brussels regime also uses some other bases o f jurisdictional rules to determine jurisdiction in some special

disputes (so called special jurisdictions) Pursuant to Section 2 o f Chapter 2 of the

86 Chapter III o f this C ode provides local com petence o f the system o f p ep o le’s courts o f Vietnam.

87 Chapter X X X V o f this Code provides jurisdiction o f the V ietnam ese courts to try civil cases with foreign elem ents.

88 These bases are extended to dom icile, habitual residence and nationality connecting factors.

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