(Luận văn thạc sĩ) SERVICES AND INNOVATIONS OF MAJOR INTERNATIONAL COMMERCIA

Rationale

In today's globalized world, issues often transcend national borders, necessitating collaborative solutions, especially in transnational commercial transactions The complexity of cross-border deals is on the rise, particularly in financial and multi-stakeholder transactions, prompting significant changes in the dispute resolution industry.

There are four primary methods for resolving commercial disputes: negotiation, mediation, arbitration, and litigation Arbitration has been a widely used approach for nearly six decades, particularly since the New York Convention of 1958, which established a robust legal framework for the recognition and enforcement of foreign arbitral awards Its effectiveness and advantages have solidified its status as a preferred method However, there is a noticeable shift towards other resolution methods, with litigation in international commercial courts emerging as a significant trend, leading to the establishment of new courts globally.

Vietnam appears to diverge from the trend of economic and legal integration, which may hinder its progress This situation suggests that there are underlying reasons for its delayed development.

Major international commercial courts, such as the London Commercial Court (LCC), Singapore International Commercial Court (SICC), and the Courts of the Dubai International Financial Centre (DIFC), offer advanced services and innovations that surpass those of national commercial courts Therefore, it is essential to conduct a thorough survey of these courts to learn from their models and apply relevant insights to improve the Vietnamese court system.

1Pierre A., 2017, the Powers and Duties of an Arbitrator, 1.

1 to a need to write about the topic and this thesis is expected to answer questions relating the future of the international commercial court in Vietnam.

Scope of research

This dissertation focuses on the services and innovations of international commercial courts, particularly in relation to the court system in Vietnam It aims to review existing literature and explore general legal studies and dispute resolution methods, while also examining the developments of major international commercial courts The research will provide recommendations for the Vietnamese court system to enhance its partnership with international courts The central objective is to thoroughly clarify the circumstances of international commercial courts and analyze their interactions with each other and with national courts.

This research distinguishes international commercial disputes from investor-state investment disputes, which serve as a legal remedy for foreign investors against national expropriation through treaty-based frameworks, particularly bilateral investment treaties (BITs) Investor-state disputes typically arise between foreign investors and host states without necessarily involving contractual relations, while international commercial disputes occur between equal contracting parties Moreover, unlike commercial disputes that are usually settled through civil mediation, litigation, or arbitration, investor-state disputes are generally resolved via national administrative litigation or international arbitration, such as at the International Centre for Settlement of Investment Disputes (ICSID).

Research questions

The thesis will address research questions below:

(1) What are services and innovations of major international commercial courts?

(2) Whether and to what extent the core principles in the law and practice of major international commercial courts are replicated in Vietnam? What are implications to Vietnam court system?

Methodologies

This study utilized a theoretical examination method to explore the historical evolution and current state of the commercial court system, particularly in light of global trends It relies on secondary legal data from reputable institutions, including the International Chamber of Commerce and Queen Mary University of London Additionally, a conceptual analysis method was employed to evaluate legal rules, highlighting their strengths and weaknesses in facilitating the progress and development of the court system.

In the legal field, the insights of esteemed jurists and chief justices are crucial for developing a comprehensive understanding of complex issues Therefore, my thesis will incorporate numerous works from respected scholars to support my analysis and conclusions.

Structure of the thesis

This thesis will explore the services and innovations offered by prominent international commercial courts, serving as its primary focus The structure of the thesis includes an introduction and conclusion, with the main content organized into three distinct chapters.

Chapter 1 will focus on analyzing existing literature and the contributions of prominent jurists regarding international commercial courts, highlighting the shortcomings of arbitration and user expectations for these courts Additionally, this chapter will present recent developments in various countries, significant aspects of jurisdiction, and an overview of the structure of the Vietnamese court system.

Chapter 2 presents key findings, highlighting three significant areas Firstly, it discusses the emerging trend of globalization in the legal framework, specifically focusing on the Hague Convention on Choice of Court Agreements Secondly, the chapter addresses the critical challenges faced by international commercial courts Lastly, it examines the services and innovations of both newly established courts, such as the Singapore International Commercial Court (SICC) and the Courts of the Dubai International Financial Centre (DIFCC), as well as established institutions like the London Commercial Court (LCC), emphasizing their unique characteristics, development strategies, and diverse objectives.

Chapter 3 outlines key implications for Vietnam's commercial court system to foster its development First, establishing a trustworthy and competent court system is essential, which involves enhancing the domestic legal framework, restructuring the commercial court organization, and creating flexible and appealing mechanisms Second, strengthening connections with international commercial courts through promoting legal agreements and facilitating training exchanges is a crucial priority Lastly, staying informed about global commercial changes is vital for the Vietnamese commercial court system to remain relevant and effective.

LITERATURE REVIEW

History and ethos of international commercial court distinguished from national

Numerous research papers and publications in English focus on the history and development of commercial courts Notably, "The Practice and Procedure of The Commercial Court, Sixth Edition" by Sir Anthony Colman, Victor Lyon, and Philippa Hopkins highlights that the world's first commercial court was established in England in 1895 Additionally, various papers authored by chief justices from countries such as Singapore, Australia, France, and the Netherlands contribute to this body of knowledge For instance, Chief Justice Sundaresh Menon of the Singapore International Commercial Court has presented a paper titled “International Commercial Courts: Towards a ”.

Transnational System of Dispute Resolution” as an opening lecture for the Dubai

In the 2015 Courts Lecture Series, the speaker examined significant shifts in our global landscape, highlighting the transition from traditional state sovereignty and legal equality to a more interconnected world driven by globalization and advancements in connective technology.

2 https://dictionary.cambridge.org/dictionary/english/service

3 https://www.lexico.com/en/definition/service-

4 https://dictionary.cambridge.org/dictionary/english/innovation?q=innovations

5 Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the Commercial

Court, Sixth Edition, Cambridge, chapter 1, 6-7.

The rise in transnational commercial disputes has highlighted the need for an effective international commercial dispute resolution system, with arbitration emerging as a key solution The Chief Justice emphasized the importance of learning from arbitration experiences to develop a robust commercial court system, advocating for international commercial courts to fulfill this need He analyzed the Singapore International Commercial Court (SICC) and the Dubai International Financial Centre Courts (DIFCC), comparing them to arbitration and national courts While the paper offers valuable insights, it lacks extensive comparisons of the services and innovations of SICC and DIFCC Similarly, Mr John Thomas, Chief Justice of England and Wales, stressed the necessity for commercial courts to adopt strategic approaches in response to the rapidly evolving global landscape due to the digital revolution He argued that strengthening the rule of law is essential for resolving disputes efficiently and justly, focusing on four key areas: market-driven, judge-led reform; personnel; process; and product, while encouraging collaboration and leveraging digital technology among commercial courts.

Transnational commercial disputes can be resolved through various mechanisms, including negotiation, mediation, arbitration, litigation, and online dispute resolution (ODR) Among these, negotiation, mediation, arbitration, and litigation fall under the category of alternative dispute resolution (ADR) Additionally, innovative approaches often emerge by combining these methods, such as Arbitration-Mediation.

6John, Th., 2016, Commercial Justice in the Global Village: the Role of Commercial Courts, DIFC Academy of Law lectures, DUBAI.

Mediation-Arbitration (for example, in the SIAC- Singapore International Arbitration Center).

Arbitration is a voluntary process where parties resolve disputes by referring them to an impartial arbitrator or a panel, who makes binding decisions based on presented evidence and arguments It is initiated through a pre-dispute agreement, such as an arbitration clause in a contract, and requires mutual consent from the parties involved As the most widely used Alternative Dispute Resolution (ADR) method, arbitration has become the preferred approach for settling international disputes, especially since the 1958 New York Convention, which has been ratified by 159 countries and is crucial for enforcing foreign arbitral awards With over forty neutral arbitration institutions worldwide, arbitration effectively meets the needs of international businesses, making it a dominant choice in international commercial transactions.

Commercial litigation involves legal actions related to business transactions in a commercial court, where businesses seek resolution for disputes Engaging a business litigation lawyer is crucial for effective legal representation and dispute settlement Ultimately, the court will provide a resolution to the matter at hand.

7 Status Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York,

1958), http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html 8Pierre A., 2017, the Powers and Duties of an Arbitrator, 1.

9 Benjamin, H., 2017, Conflict of Laws and Arbitral Discretion, Oxford, 9, ả1.15

7 a judgment to be enforced on the losing party In this thesis, only international commercial transactions will be mentioned, so the court herein is international commercial court.

Many companies engaged in international business hesitate to enter the judicial systems of their customers or partners due to concerns over corrupt judges and unfamiliar local laws and customs This skepticism leads them to avoid potential inconsistent legal outcomes Despite the rise of transnational trade and investment, national courts often appear focused on local perspectives, which can deter foreign traders and investors Consequently, this perception of the limitations of local judicial systems has contributed to the increasing prominence of international arbitration as a preferred method for resolving commercial disputes.

The London Commercial Court has successfully attracted international litigants, with approximately 80% of its cases involving at least one party from outside the UK This preference for the London Court over other national courts can be attributed to its deep understanding of the business and commercial landscape, a connection that dates back to the 18th century under Lord Mansfield During this time, the foundations of mercantile law were established, and commercial trials were often conducted in the Court of King’s Bench in London, solidifying the city’s reputation as a hub for international commercial dispute resolution.

10 New English-Speaking Commercial Court in Paris, https://www.acerislaw.com/new-english- speaking-commercial-court-in-paris/

11Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the Commercial

Court, Sixth Edition, Cambridge, Chapter 1, Page 1, ả1.

Between 1756 and 1788, dissatisfaction grew regarding the court's effectiveness in resolving commercial disputes, as litigation was seen as slow and costly, with judges and juries lacking familiarity with commercial practices On October 24, 1894, the judges of the Queen's Bench Division established a committee to explore the creation of a Commercial Court aimed at improving procedural and administrative aspects of justice By February 1895, this initiative culminated in the "Notice as to Commercial Causes," leading to the establishment of the Commercial Court later that year.

Judicial independence, adherence to the rule of law, and the favorable nature of English Common Law are key factors that enhance London's reputation as a prime location for international commercial dispute resolution, encompassing both litigation and arbitration.

Established in 1895, the Commercial Court has focused on issues related to commercial arbitrations conducted in London and across England and Wales Most commercial arbitrations occur in this jurisdiction, highlighting the court's significance in resolving related disputes.

In England, arbitrations primarily involve maritime and commodity contracts, while other classifications, such as ad-hoc arbitrations, present more complexity as they lack administration by a specific arbitral body Additionally, the court occasionally addresses international arbitrations in various fields, including those overseen by the London Court of International Arbitration.

Court, Sixth Edition, Cambridge, Chapter 1, Page 6.

15 Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the

Commercial Court, Sixth Edition, Cambridge, Chapter 1, Page 289, ả1.

Arbitration, particularly through the International Chamber of Commerce, often limits recourse to national courts, resulting in less frequent involvement of the Commercial Court in such disputes However, the court has recently been tasked with reviewing awards issued under international investment treaties, and the Court of Appeal has confirmed its jurisdiction in these matters.

An international commercial court is a specialized judicial body that resolves cross-border commercial disputes Despite extensive online research, a definitive definition remains elusive, highlighting the complexity and evolving nature of such courts in the global legal landscape.

An international commercial court is a specialized judicial body that combines elements of national courts and arbitral tribunals to resolve international commercial disputes This court leverages the strengths of municipal courts, such as published judgments and rights of appeal, while also incorporating arbitration features like confidentiality Its rules are designed to address commercial disputes involving foreign litigants and cross-border issues, making it an appealing alternative for parties dissatisfied with national litigation or international arbitration Inspired by the London Commercial Court, international commercial courts offer unique attributes compared to domestic courts, particularly regarding the limited rights of foreign lawyers to appear in other jurisdictions' national courts.

Missions of international commercial court and recent movements in some countries

Research on international commercial courts in countries like Australia and China reveals insights into their frameworks In Australia, the paper "An International Commercial Court for Australia - Looking Beyond the New York Convention," co-authored by Chief Justice Marilyn Warren and Judge Clyde Croft, examines transnational legislation, notably the New York Convention 1958 and the Hague Convention on Choice of Court Agreements The authors analyze existing international commercial court models, including the Singapore International Commercial Court, Qatar International Court, Dubai International Financial Centre courts, Abu Dhabi Global Market courts, and the longstanding London Commercial Court While the paper outlines the establishment circumstances of these courts, it offers limited details on their services The study aims to glean lessons from these international courts to guide the establishment of an Australian international commercial court, ultimately leading to significant conclusions.

The establishment of an international commercial court in Australia requires active government involvement and support, rather than relying solely on the judiciary or legal professionals Lessons from cities like Singapore, Dubai, Abu Dhabi, and London highlight the importance of governmental backing for such initiatives Additionally, research from a doctoral thesis at Erasmus University Rotterdam on foreign-related commercial disputes underscores the relevance of this topic in a global context.

The article "Resolution in China: A Focus on Litigation and Arbitration" offers a comprehensive examination of China's arbitration and international commercial litigation, detailing the fundamental principles recognized in global legal frameworks It explores the structural characteristics of Chinese courts and arbitration bodies, emphasizing the legal distinctions between domestic and foreign-related commercial cases Additionally, the study outlines the processes involved in international commercial litigation and arbitration while conducting an internal comparative analysis to highlight their respective advantages and disadvantages Through these insights, the author identifies disparities within the systems and proposes recommendations for future reforms.

In addition, international commercial court has also been mentioned in a number of works One of them is the research “the Emergence of Hybrid International

Commercial Courts and the Future of Cross Border Commercial Dispute

This research explores the evolution of international commercial courts in Asia by comparing them with European mechanisms, focusing on normative, procedural, and institutional challenges It critically evaluates the legal and legislative frameworks necessary for establishing these courts to handle cross-border commercial disputes The findings highlight that there is no universal model for enhancing international commercial dispute resolution, emphasizing the need for tailored approaches in different regions.

22 Marilyn, W & Clyde, C., 2016, An International Commercial Court for Australia - Looking beyond the New York Convention, Melbourne, 39.

23 Bo, Y., 2017, „Foreign-Related Commercial Dispute Resolution in China: A focus on litigation and arbitration’, PhD thesis, Erasmus University Rotterdam.

24 Firew, T., 2016, the Emergence of Hybrid International Commercial Courts and the Future of

Cross Border Commercial Dispute Resolution in Asia, 14 Loy, U Chi, Int'l L Rev 31.

14 resolution There are a number of tools that can be utilized These tools could, for convenience sake, be grouped as normative, institutional, and procedural”.

However, the contents of the paper is so far away from our expectation, they do not answer to our concerns.

The international commercial court has the potential to address the shortcomings of arbitration and fulfill user expectations, positioning it as a direct competitor to international commercial arbitration However, current surveys, such as the QMUL 2015 Survey, indicate that this prediction lacks strong support.

According to the QMUL 2018 Survey, international commercial arbitration remains the preferred method of dispute resolution among respondents, with 90% in 2015 and 97% in 2018 favoring this approach These findings highlight the continued dominance of international commercial arbitration in the current landscape of dispute resolution mechanisms.

My prediction is supported by several factors, notably the evolving landscape of international commercial courts There is a noticeable inverse relationship between international commercial courts and arbitration, highlighted by the establishment of new judicial bodies, the optimization of procedural rules, and a significant increase in caseloads For instance, in 2016, the Admiralty and Commercial Court in England processed over 1,100 claims, with 70% involving at least one party from outside England and Wales, and 45% comprising entirely international parties.

By July 2017, there were more than 700 claims, with 71% classified as international, and over 49% involving all international parties In the Dubai International Financial Centre (DIFC), the number of cases rose significantly from 321 in 2016 to 509 in 2017.

29, and in SICC there were

25 QMUL (Queen Mary University of London) 2015 Survey, Page 5, http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.p df 26

QUML 2018 Survey: The Evolution of International Arbitration, Page 5, http://www.arbitration.qmul.ac.uk/research/2018/

27Legal Excellence, Internationally Renowned, UK Legal Services 2017, theCityUK, Page 7

28 DIFCC Annual review 2016, http://issuu.com/difccourts/docs/difc_courts_annual_review_2016? e)076707/47175093

In 2018, there were 19 cases involving the Singapore International Commercial Court (SICC), with 18 transferred from the Singapore High Court Criticism of arbitration highlights its tendency toward compromises, which can be impractical, especially in banking and finance where parties seek to secure their full claims In such instances, parties may find it more beneficial to pursue resolutions through an international commercial court, which offers a higher likelihood of obtaining the full amount requested My research at Kobe University indicates that international commercial courts provide superior services compared to international commercial arbitration, addressing issues like high costs, ineffective sanctions, limited third-party power, and the absence of an appeal mechanism Consequently, I believe that international commercial courts could emerge as viable competitors to international commercial arbitration, although this evolution will take time due to the established framework of the New York Convention, which has evolved over six decades.

29 DIFCC Annual review 2017, http://issuu.com/difccourts/docs/difc-annualreview2017_jpgs? e)076707/58783045

30 A Landmark First Case Filed in the Singapore International Commercial Court, https://www.sicc.gov.sg/docs/default-source/modules-document/media-resources/sicc-newsletter- issue-no-11_8239f5c5-8e7f-42bf-81b0-cb581c33a349.pdf

31 Dang, Q., 2018, „International Commercial Courts–Partners and Potential Rivals of

Arbitration’, master‟s thesis, Kobe University, strengths and weaknesses of international commercial court and international commercial arbitration, 47-63.

Vietnamese court system

Vietnam's legal system is deeply influenced by its historical, socio-political, and economic contexts, reflecting its unique socialist framework under the Communist Party The nation’s history includes over a thousand years of Chinese occupation, followed by a period of independence until the mid-19th century when it fell under French colonial rule in 1864 In 1945, Vietnam expelled the French and established the Vietnam Socialist Republic, with its first constitution adopted after the inaugural National Assembly election in 1946 However, the struggle continued as France attempted to regain control, leading to the Vietnam-France War (1946-1954) Following the defeat of the French, Vietnam was split into the North (Democratic Republic of Vietnam) and the South (Republic of Vietnam), with the subsequent Vietnam-America War concluding in 1975 and resulting in national unification The evolution of Vietnam's legal system can be categorized into four historical periods: the feudal regime, French colonialism, Soviet influence, and the renovation period initiated in 1986 with the "Đổi mới" policy.

1986 up to present and looks at a narrow aspect in connection with its topic instead of a comprehensive look.

Vietnam has established a socialist legal system rooted in civil law, incorporating significant adaptations from Marxist-Leninist principles The distinctive features of Vietnam's current legal framework reflect these ideological influences.

 Legislation is the most important source of law;

32A look at Vietnam's legal system, 2017, https://oxfordbusinessgroup.com/overview/law-land- look-country%E2%80%99s-legal-system

 Courts are subordinate to the legislature and must make decisions based on legislation; and

 Policies are set out by the Communist Party, the only political party in Vietnam, which can lead to changes in legislation in the future.

In 2015, Vietnam's National Assembly enacted Law No 80/2015/QH13 to reorganize the country's legislation, which took effect in July 2016 This law outlines the various types of legal documents and the law-making process, distinguishing between them based on their legal validity.

According to Law 80, legal documents in Vietnam are categorized into 15 levels of validity, with the constitution holding the highest authority The hierarchy of legal documents includes: 1) the constitution; 2) codes, laws, and resolutions of the National Assembly; 3) ordinances and resolutions from the Standing Committee of the National Assembly; 4) orders and decisions from the president; 5) decrees from the government; 6) decisions from the prime minister; 7) resolutions from the Judge Council of the Supreme Court; 8) circulars issued by ministers and heads of ministerial agencies, as well as the chief justice of the Supreme Court and the chief procurator of the Supreme Procuracy; 9) resolutions from provincial People’s Councils; and 10) decisions from provincial People’s Committees Additionally, international treaties, which become a source of law upon ratification by the National Assembly, play a significant role in Vietnam's legal framework Vietnam's commitments to various free trade agreements (FTAs) further enhance its legal system and promote international economic integration, serving as a vital source of law.

33 Promulgation of Normative Documents, Law No 80/2015/QH13, June 22, 2015 http://www.economica.vn/Content/files/LAW%20%26%20REG/80_2015_QH13%20Law%20on% 20Promulgation%20of%20normative%20documents.pdf

34 A look at Vietnam's legal system, 2017, https://oxfordbusinessgroup.com/overview/law-land- look-country%E2%80%99s-legal-system

1.3.2 Remarkable points in the Vietnamese jurisdiction

Vietnam operates as a single-party state governed by the Vietnamese Communist Party, which significantly influences the nation's policies and legal framework The National Assembly serves as the highest representative body, holding supreme authority to supervise government functions and ensure adherence to the constitution and laws While this political model offers various advantages, it often lacks diverse perspectives on specialized issues, potentially resulting in a one-sided approach to regulation and legislation Additionally, concerns regarding the independence of the judiciary persist, although similar shortcomings can be observed in other countries worldwide.

Vietnam has received significant support from advanced countries, including the US, Japan, Denmark, Canada, and Germany, to implement legal reforms Notably, the Japan International Cooperation Agency (JICA) has assisted in enhancing civil and commercial legal frameworks and developing human resources Additionally, the USAID STAR project has played a crucial role in revising or adopting 93 legal documents related to trade agreements Recently, various donors and entrepreneurs have advocated for reforms that promote the marketization of the economy, drawing on diverse civil and common law influences from countries such as Sweden, the USA, Canada, Japan, and Australia.

35 Southeast Asian Legal Research Guide: Introduction to Vietnam & its Legal System, http://unimelb.libguides.com/c.php?g@2982&pX62045

The article by Penelope Nicholson and Nguyen Hung Quang titled "The Vietnamese Judiciary: The Politics of Appointment and Promotion," published in the Pacific Rim Law and Policy Journal Association in 2005, explores the intricate dynamics of judicial appointments and promotions within Vietnam's legal system It highlights how political influences shape the judiciary, affecting its independence and effectiveness The study provides critical insights into the challenges faced by the Vietnamese judiciary in maintaining impartiality amidst political pressures.

37Penelope Nicholson and Nguyen Hung Quang, “The Vietnamese Judiciary: The Politics of

Appointment and Promotion,” Pacific Rim Law and Policy Journal Association, 2005, 5, http://digital.law.washington.edu/dspace- law/bitstream/handle/1773.1/659/14PacRimLPolyJ001.pdf?sequence=1.

38 Penelope Nicholson and Nguyen Hung Quang, “The Vietnamese Judiciary: The Politics of Appointment and Promotion,” Pacific Rim Law and Policy Journal Association, 2005, 5,

The legal system in Vietnam has undergone significant transformation due to influences from donor countries Since the shift from a centrally-planned economy in 1986, the legal framework has evolved, increasingly aligning with the principles of the rule of law rather than solely adhering to socialist legality Today, while still rooted in civil law traditions, Vietnam's legal system has integrated modern advancements from progressive legal sectors, resulting in a more contemporary and effective legal structure.

The new Civil Code 2015 took effect on January 1, 2017, establishing a foundation for laws governing civil and business relationships in Vietnam It aims to enhance legal consistency and better protect civil rights Notably, the Civil Code mandates that all other laws must align with its provisions, asserting its precedence in case of contradictions Unlike the previous 2005 Civil Code, it allows Vietnamese courts to address civil issues even when no specific regulations exist, and to base decisions on Supreme Court precedents or fairness principles Additionally, customary practices are recognized as a legal source, as outlined in Article 5 of the 2015 Civil Code.

39 Phan, H., 2016, Overview of the Vietnamese Legal System, Hanoi Law University, https://www.academia.edu/7325321/OVERVIEW_OF_THE_VIETNAMESE_LEGAL_SYSTEM.

40 Albert Chen, Constitutionalism in Asia in the Early Twenty-First Century (Cambridge University Press, 2014), 202.

41A look at Vietnam's legal system, 2017, https://oxfordbusinessgroup.com/overview/law-land- look-country%E2%80%99s-legal-system

42Civil Code, 24 November 2015, http://www.economica.vn/Content/files/LAW

%20%26%20REG/91_2015_QH13%20Civil%20Co de.pdf

Jurisprudence is not considered a source of law within the Vietnamese legal system, meaning that court decisions lack binding precedential value However, the Supreme People's Court provides binding guidelines through Resolutions and conclusion reports, along with an annual collection of notable cases that include comments and instructions, which can be found on their website (in Vietnamese) These guidelines are enforceable for lower courts as stipulated in Article 21 of the "Law on Promulgation of Legal Normative."

The Judge Council of the People’s Supreme Court is responsible for issuing resolutions that guide the consistent application of law in adjudication, as stated in Article 43 Additionally, Article 4 of the Law on Promulgation of Legal Normative Documents identifies these resolutions as a source of law, ensuring uniformity in legal proceedings.

43 Promulgation of Normative Documents, Law No 80/2015/QH13, June 22, 2015 http://www.economica.vn/Content/files/LAW%20%26%20REG/80_2015_QH13%20Law%20on%20Promulgation%20of%20normative%20documents.pdf

1.3.3 Reviewing the hierarchy of the Vietnamese court system

According to the “Law on Organization of People’s Courts 2014” (Law No

Vietnam's judicial system operates on a two-tier structure, comprising courts of first instance and appellate courts This system includes the Supreme People's Court (SPC) and the High-level People's Courts, also known as Superior People's Courts, located in Hanoi.

Vietnam's judicial system comprises various levels of courts, including the Supreme People's Court, which oversees both trial and appellate functions, and 63 provincial-level People's Courts that serve similar roles District People's Courts operate solely as trial courts, while Military Courts are established within the Vietnam People's Army, with the Central Military Tribunal being the highest authority under the Supreme People's Court Specialized courts exist at both the High-level People's Court and provincial People's Courts, including Criminal, Civil, Economic, Administrative, Labour, and Family and Juvenile Courts District People's Courts may also feature Criminal, Civil, Family and Juvenile, and Administrative Handling Courts.

The Supreme People's Court (SPC) stands as the highest judicial authority in the system, overseeing subordinate courts and serving as the court of first instance for serious crimes, including high treason It functions independently from other governmental agencies, despite nominal accountability to the National Assembly The chief justice, elected by the National Assembly, serves a term aligned with that of the Assembly and is eligible for re-election As the apex court, the SPC reviews appeals from lower courts, ensuring a comprehensive judicial oversight.

Supreme People's Court can appoint and remove judges of the inferior courts 46 , instead of the local People's Council in administrative bodies The budget of the

44 Law on Organization of People‟s Courts, No 62/2014/QH13, November 24, 2014, http://www.economica.vn/Portals/0/Documents/622014QH13267272.pdf

45 Vietnam Legal Research, http://www.nyulawglobal.org/globalex/Vietnam1.html#_ednref19

The Law on the Organization of the People's Courts, enacted on November 24, 2014, shifts the authority over local courts from provincial Departments of Justice to the National Assembly This change aims to enhance the independence of local courts from local government influence.

FINDINGS

Globalization of the Hague Convention on Choice of Court Agreements

The push for international commercial courts arises from the limitations of international commercial arbitration The global ratification of the Hague Convention on Choice of Courts has enhanced the appeal of these courts, aiming to complement the significant benefits of arbitration provided by the 1958 United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention Consequently, numerous international commercial courts have been established, showcasing notable examples in this context.

To insulate a transaction from litigation risk, contracting parties must understand the potential challenges they face, primarily venue risk and enforcement risk Venue risk involves the possibility of having to engage in legal proceedings in an unfavorable forum, while enforcement risk pertains to the potential inability to enforce a judgment To mitigate these risks, parties can establish jurisdiction agreements, which dictate where litigation will occur These agreements can take various forms, including exclusive jurisdiction agreements that designate a specific court, non-exclusive jurisdiction agreements that allow flexibility based on the location of the defendant's assets, and hybrid agreements that combine litigation and arbitration options By carefully selecting the appropriate jurisdiction agreement, parties can significantly reduce their litigation risk in transnational commercial deals.

Arbitration’, master‟s thesis, Kobe University, 30.

55Richard, F., 2015, International Commercial Litigation, Second Edition, Oxford, 42, ả2.01.

Jurisdiction agreements play a crucial role in transnational litigation, primarily governed by the Hague Convention on Choice of Courts, regional agreements like the Brussels I Regulation in the EU, or national laws The Hague Convention takes precedence over regional agreements, which in turn override national laws If one party resides in a state that is a party to the Hague Convention, jurisdiction is determined by the Convention Conversely, if both parties are EU residents or from non-Convention states, the Brussels I Regulation applies For instance, if an American and a German company select the Rotterdam district court, the Hague Convention prevails; however, if a Belgian and a German company choose the same court, the Brussels I Regulation takes precedence.

Choice-of-Court Agreements” in the Hague Convention or “forum-selection agreements” in the US usage 57 , are agreements, so there must be a contract between the parties.

On 30 th June 2005, more than forty states meeting in the Hague (in the west of the Netherlands) adopted the Convention on Choice of Court Agreements which came into force on 1 st October 2015 and has the effect of limiting the circumstances in which the courts of Convention States may decline to exercise jurisdiction conferred by agreement, or refuse to give effect to valid agreements in favour of the courts of other such states 58 As at June 2018, there are 31 countries which are

56Richard, F., 2015, International Commercial Litigation, Second Edition, Oxford, 44-46, ả2.08, 2.10, 2.13, 2.17.

57 Hartley & Dogauchi, 2007, Explanatory Report on the 2005 Convention on Choice of Court

58 The Hague Convention, 2018, Art 5, 6, https://www.hcch.net/en/instruments/conventions/status- table/?cid

As of now, 27 countries are bound by the Hague Convention, including the European Union, which comprises 27 member states Notably, Denmark ratified the convention on May 30, 2018 Additionally, countries such as the UK, Estonia, Mexico, and Singapore have also ratified the convention However, four nations—namely the United States, Ukraine, Montenegro, and China—have signed the Hague Convention but have yet to ratify it.

The Hague Convention aims to enhance international trade and investment by establishing a judicial cooperation framework that strengthens the certainty and effectiveness of jurisdiction agreements in commercial transactions among contracting states Its primary benefit is the ability to recognize and enforce judgments from one contracting state in another, mirroring the effectiveness of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, but specifically for international commercial litigation.

The Convention was inspired by the Brussels I Regulation and follows its general lines, containing “three basic rules” to give effect to choice of court agreements:

(1) The chosen court must in principle hear the case (art 5);

(2) Any court not chosen must in principle decline to hear the case (art 6); and

(3)Any judgment rendered by the chosen court must be recognised and enforced in other Contracting States, except where a ground for refusal applies (arts 8 and 9).

However, the Convention applies only to exclusive jurisdiction agreements Non- exclusive or asymmetric agreements are not to be treated as exclusive, thus are outside the scope of the Convention 60

The Convention contributes to balance decision making in international transactions We can see through similarities and distinctions between it and the

59 A current list of the contracting states can be found at https://www.hcch.net/en/instruments/conventions/status-table/?cid

60Hartley & Dogauchi, 2007, Explanatory Report on the 2005 Convention on Choice of Court

The New York Convention establishes that each contracting state must recognize written agreements for arbitration of disputes, as stated in Article II (1), while Article III mandates the recognition and enforcement of arbitral awards according to local procedural rules In contrast, the Hague Convention addresses choice of court agreements and the enforcement of judgments in Articles 5 and 8, effectively correcting the imbalances found in the enforcement regime of the New York Convention These similarities and distinctions play a crucial role in influencing the choice of forum for international dispute resolution.

 Matters of scope: Article I of the New York Convention states that the

The Hague Convention governs the recognition and enforcement of arbitral awards across different states, specifically focusing on international cases with exclusive choice of court agreements in civil or commercial matters, while excluding consumer and employment contracts along with a detailed list of subject matter exclusions In contrast, the New York Convention lacks such exclusions and applies broadly to all agreements related to defined legal relationships, regardless of whether they are contractual, as long as the subject matter is arbitrable This distinction highlights the broader applicability of the New York Convention compared to the more limited scope of the Hague Convention.

The New York Convention encompasses various conventions, but the Hague Convention offers clearer exclusions that enhance certainty from the beginning In contrast, the New York Convention necessitates consulting the national laws of relevant states to ascertain if a dispute is eligible for arbitration.

The New York Convention lacks provisions similar to Article 5 of the Hague Convention regarding the obligations of courts not designated by the parties When arbitration occurs in the chosen tribunal, its rules apply; however, if the case goes to a non-chosen court, both conventions mandate respect for the selected forum Specifically, Article II (3) of the New York Convention requires courts to refer parties to arbitration unless the arbitration agreement is deemed null, void, or incapable of being performed In contrast, Article 6 of the Hague Convention outlines several grounds for a non-chosen court to maintain jurisdiction, including the invalidity of the agreement under the chosen court's law, lack of capacity of a party, potential manifest injustice, public policy concerns, impracticality of enforcement, or the chosen court's decision to decline the case Although the Hague Convention provides a broader range of grounds, the actual instances of such cases may be limited.

The Hague Convention has the potential to establish a more equitable balance between arbitration and litigation if adopted by a significant number of contracting states It enables parties involved in transactions to choose the dispute resolution method that best meets their specific requirements, rather than defaulting to arbitration solely for its benefits under the New York Convention, which lacks a comparable framework for national court dispute resolution.

61 Ronald, A & Paul, H., 2008, The 2005 Hague Convention on Choice of Court Agreements,

The Choice of Court Convention is in its early stages, similar to the CISG, which took eight years to gain ten member countries Its success in providing a global enforceability framework for court judgments, akin to the New York Convention for arbitral awards, remains to be seen However, the current pace of ratification suggests that widespread adoption could occur within the next decade, driven by the commercial sector's demand for global coverage Additionally, the Convention may enhance the effectiveness and appeal of international commercial courts and contribute to their establishment.

62 Brooke Adele Marshall and Mary Keyes, Australia‟s Accession to the Hague Convention onChoice of Court Agreements, Page 275.

Challenges need to be resolved by international commercial court

2.2.1 In general on the world

The effectiveness of a transaction hinges not only on the legal rights and obligations of the parties involved but also on the availability and enforcement of remedies Transaction costs and the willingness of parties to engage in contracts are influenced by associated risks, particularly the ever-present threat of litigation Even when a judgment is secured, enforcing it can be costly, especially if the defendant's assets are located abroad or across multiple jurisdictions This complexity is exacerbated when the Hague Convention does not apply, as the country in question is not a member Such challenges impact both the enforcement of court judgments and the functionality of the dispute resolution and commercial markets.

As financial and commercial markets rapidly evolve due to the digital revolution, it is crucial for international commercial courts to adopt a strategic approach that strengthens the rule of law This strategy should focus on ensuring that these courts can deliver authoritative legal interpretations, resolve disputes efficiently and fairly, influence market behavior, and remain responsive to market needs A key challenge is the insufficient number of international judges with expertise in diverse legal traditions, which hinders the courts' ability to effectively address relevant issues.

Vietnam lacks a specialized court for international commercial disputes, leading to significant challenges for the Vietnamese People’s Courts This article will explore the pressing difficulties these courts encounter in addressing such cases, providing a comprehensive overview of the current legal landscape.

Under the 2014 Law on the Organization of People's Courts, the Supreme People's Court does not have specialized courts, and judicial reviews and re-trials are conducted by a Council of Judges consisting of 17 supreme court judges This Council is supported by three departments of inspection, which do not include any additional judges As caseloads are expected to increase and become more complex in the future, the absence of intermediate judges and senior judges in the inspection departments may jeopardize the quality of judicial reviews.

The current number of judges in the People's Courts across all levels falls short of the requirements set by the 2014 Law on the Organization of People's Courts and newly approved judicial proceedings laws, despite a growing caseload Additionally, the quality and structure of personnel, along with the capabilities of civil servants in the People's Courts, do not meet the demands of legal practice, particularly in handling international business legal issues.

The national conference on cadre work of the SPC focuses on resolving difficulties and obstacles in the personnel management of the judiciary It aims to enhance the effectiveness and efficiency of court operations by addressing key challenges faced by judicial staff This initiative underscores the importance of improving human resources within the judicial system to ensure better service delivery and uphold justice.

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Laggard innovation and limited financial resources for training significantly impact the quality of human resources within the court system In some courts, lax management has resulted in officials and judges occasionally violating court disciplines and engaging in ethical breaches, with some violations even being criminal in nature Furthermore, compensation for court personnel does not align with the demands of their assigned tasks, and the unique aspects of legal work in the People's Courts are not adequately addressed in labor-related policies.

Current legal regulations are often impractical and challenging to implement, though they are gradually being revised Only 35% of judges across various courts have received formal professional training, while the majority (75%) have undergone in-service training, resulting in inadequate skills in informatics and foreign languages In this context, some chief justices have failed to fulfill their leadership responsibilities, leading to internal disunity and management issues.

I don't know!

The national conference on cadre work of the SPC focused on addressing challenges and obstacles in the personnel management of the judiciary This event aimed to enhance the efficiency and effectiveness of court staff, ensuring that personnel issues are resolved to improve overall judicial operations The discussions emphasized the importance of strategic solutions to strengthen the capabilities of judicial personnel in order to better serve the public and uphold justice.

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Services and innovations of major international commercial courts

There are presently prime examples of courts which have been described as

“international commercial courts” 68 : (1)_The Singapore International Commercial Court (SICC, 2015), 69 (2)_The Courts of the Dubai International Financial Centre (DIFCC, 2004), 70 (3)_The Qatar International Court (QIC, 2011), 71 (4)_Courts of

Abu Dhabi Global Market Courts (ADGM Courts, 2015), 72 (5)_The New English- Speaking Commercial Court in Paris (New International Chambers at the Paris

Commercial Court and the Paris Court of Appeals, 2018), 73 (6)_The Netherlands

The establishment of specialized commercial courts has gained traction globally, with notable examples including the Commercial Court in Nigeria (NCC, July 2018), the Dublin Commercial Court in Ireland (2004), and the China International Commercial Courts in Shenzhen and Xi'an (June 2018) Other significant courts include the Complex Commercial Litigation Division in Delaware, USA (2010), the High Court Commercial Division in Lesotho and Ivory Coast (2013), and the historic London Commercial Court, which originated as a domestic court in the 18th century under Lord Mansfield Additionally, countries such as Myanmar, Germany, Romania, and Belgium are exploring the creation of similar courts in cities like Yangon, Frankfurt, Bucharest, and Brussels.

69https://www.sicc.gov.sg/

71 https://www.qicdrc.com.qa/

72 https://www.adgm.com/doing-business/adgm-courts/home/

73 https://www.acerislaw.com/new-english-speaking-commercial-court-in-paris/

74 https://netherlands-commercial-court.com/

75 http://www.finfacts.ie/biz10/irelandcourt.pdf

76 http://cicc.court.gov.cn/html/1/219/208/210/821.html

77 https://courts.delaware.gov/superior/complex.aspx

78 https://papers.ssrn.com/sol3/papers.cfm?abstract_id8557

79 https://lesotholii.org/ls/judgments/high-court-commercial-division

80 https://www.americanbar.org/publications/blt/2014/05/01_renck.html

81 http://thecommonwealth.org/project/strengthening-capacity-high-court-lesotho

82 http://www.judiciary.gov.uk/you-and-the-judiciary/going-to-court/high-court/queens-bench- division/courts-of-the-queens-bench-division/commercial-court/

Judicial forums like the SICC and DIFCC are designed to handle significant international disputes by providing specialized procedures and a diverse panel of judges experienced in both common and civil law, all fluent in English Established under the laws of their respective states, these municipal courts possess the jurisdiction to adjudicate international cases, primarily focusing on commercial matters that often involve multiple foreign parties.

The proliferation of international commercial courts worldwide can be attributed to several key factors Firstly, the rapid expansion of international free trade, facilitated by numerous free trade agreements (FTAs) and preferential trade agreements (PTAs), has significantly boosted transnational commerce Secondly, while international commercial arbitration is a valuable tool, it has its limitations, prompting the need for alternative dispute resolution mechanisms Additionally, changing social, economic, and geopolitical landscapes, such as Brexit and China's "One Belt One Road" initiative, have led to increased legal disputes and the restructuring of judicial systems The French justice minister noted that Brexit has prompted the establishment of new courts in the EU, as London’s role as a dispute resolution hub is being challenged by other European jurisdictions.

84 New Courts for the Belt and Road Initiative, http://www.oboreurope.com/en/bri-courts/

36 court sees a "chance to establish Frankfurt as an international forum," especially after Brexit 85, 86

This article explores the current state of various international commercial courts, focusing on specific examples such as the Singapore International Commercial Court (SICC), the Dubai International Financial Centre Courts (DIFCC), and the London Commercial Court While a comprehensive history of all commercial courts is not covered, these selected courts illustrate unique developments and practices within the realm of international commercial law.

The establishment of the Singapore International Commercial Court (SICC) on January 5, 2015, has added complexity to Singapore's jurisdictional framework, further enhanced by the signing of the Hague Convention on the Choice of Court.

Established on March 25, 2015, the Singapore International Commercial Court (SICC) is a unique international commercial court that exclusively handles claims of an international and commercial nature, distinguishing it from domestic commercial courts Functioning as a domestic specialist court for international commercial litigation, the SICC incorporates elements of the arbitral model while ensuring judicial oversight Its framework emphasizes party autonomy and flexible procedural rules A key feature that sets the SICC apart from other specialist commercial courts, such as the London Commercial Court, is its diverse judicial bench, which includes 20 eminent jurists from various foreign jurisdictions, enhancing its international character.

Appeal, fifteen judges of High Court, and the Chief Justice,) and 15 “International

Judges” The SICC boasts a panel of prominent international jurists drawn from

85 Paris Opens English-Speaking Court, https://economia.icaew.com/en/opinion/february-

2018/paris-opens-english-speaking-court

88 May, Y., 2016, The Resolution of Disputes before the Singapore International Commercial

37 both the common law and civil law jurisdictions At the time of writing, 15 international judges have been appointed: 1 (USA), 3 (Australia), 1 (Canada), 1 (France), 6 (the UK), 2 (Hong Kong) and 1 (Japan) 89

The Dubai International Financial Centre Courts (DIFCC) were established to attract businesses in the UAE and the Gulf region, operating under various judicial agreements but not the Hague Convention Officially launched in 2004 and operational since 2006, the DIFCC initially focused on disputes within the Dubai International Financial Centre In 2011, its jurisdiction expanded to include consent jurisdiction, allowing it to handle disputes beyond its physical location, thus enhancing its role as a legal hub for the Middle East and North Africa This contrasts with the Singapore International Commercial Court (SICC), which was created to address the growing need for a center to resolve transnational disputes in Asia, rather than serving a specific economic zone.

90 https://www.adgm.com/doing-business/adgm-courts/home/

91 Sundaresh, M., 2015, International Commercial Courts: Towards a Transnational System of

Dispute Resolution, Opening Lecture for the DIFC Courts Lecture Series, ả22.

38 establishing the DIFCC was somewhat different, Chief Justice Michael Hwang has described the DIFCC as “a common law island in a civil law ocean” 92, 93

The London Commercial Court, with its rich history, serves as a prominent venue for international commercial litigation despite being a municipal court, unlike newly established courts such as the SICC and DIFC It handles numerous cases even when parties and disputes lack significant ties to the UK While municipal courts are often seen as less appealing for international dispute resolution due to concerns over neutrality and judgment enforceability, the London Commercial Court's reputation for excellence, backed by highly skilled and impartial judges, positions it as a leading choice in the global legal landscape.

These courts were established to create a common law framework for resolving civil and commercial disputes in their financial centers This article will explore the services and innovations offered by these typical courts.

92 Sundaresh, M., 2015, International Commercial Courts: Towards a Transnational System of

Dispute Resolution, Opening Lecture for the DIFC Courts Lecture Series, ả25.

2.3.1 Singapore International Commercial Court (SICC)

The Singapore International Commercial Court (SICC), a division of the Singapore High Court, allows litigants to appeal to the Court of Appeal of the Singapore Supreme Court against any SICC judgment or order This appeal process not only corrects errors but also creates legal precedents, enhancing the legitimacy and quality of judicial decisions Judgments deemed "of major legal interest" can be published in law reports, which is essential for the development of jurisprudence and the advancement of international commercial law.

SICC's procedures emphasize cost and time efficiency by requiring parties to collaboratively prepare an agreed List of Issues This document serves as a vital case management tool, helping to outline key aspects such as the scope of document production, the types of evidence needed, and identifying issues suitable for summary or preliminary determination By structuring the principal issues clearly, the List of Issues enhances the overall efficiency of the litigation process.

In offshore cases with minimal ties to Singapore, the Singapore International Commercial Court (SICC) can issue confidential orders at the request of parties seeking to maintain confidentiality This procedural flexibility enhances party autonomy, enabling them to tailor court rules to their specific needs Confidential orders may include provisions for in-camera hearings and restrictions on the disclosure or publication of case-related information.

95 SICC, Rules of Court 2014, O110, R31(1), https://sso.agc.gov.sg/SL/SCJA1969-R5? ProvIds=PO110-#PO110-

96 Singapore International Commercial Court Practice Directions, 2017, ả80.

An "offshore case" refers to a legal action that lacks a significant connection to the jurisdiction of the courts involved In such cases, the law governing the dispute is not the law of the country where the courts are located, and the core issues of the dispute pertain to commercial activities conducted outside that territory.

98 SICC, Rules of Court 2014, O110, R30(1), https://sso.agc.gov.sg/SL/SCJA1969-R5?

In cases where a judgment cannot be issued or is impractical, appropriate redactions and safeguards will be implemented For instance, the Singapore International Commercial Court (SICC) may mandate that the judgment remain unpublished for a period of up to 10 years following its issuance.

In urgent situations requiring swift action to safeguard the interests of claimants, the Singapore International Commercial Court (SICC) allows for immediate applications through telephone or email, with hearings conducted via teleconference or video conference.

IMPLICATIONS TO VIETNAM

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