SERVICES AND INNOVATIONS OF MAJOR INTERNATIONAL COMMERCIAL COURTS, IMPLICATIONS TO VIETNAM

MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY

DISSERTATION

SERVICES AND INNOVATIONS OF MAJOR
INTERNATIONAL COMMERCIAL COURTS,
IMPLICATIONS TO VIETNAM

Major: International Trade Policy and Law

DANG VAN QUAN

Ha Noi - 2019


MINISTRY OF EDUCATION AND TRAINING
FOREIGN TRADE UNIVERSITY

DISSERTATION

SERVICES AND INNOVATIONS OF MAJOR
INTERNATIONAL COMMERCIAL COURTS,
IMPLICATIONS TO VIETNAM

Major: International Trade Policy and Law

Full Name: Dang Van Quan
SUPERVISOR: A. Prof. HO THUY NGOC

Ha Noi - 2019

DECLARATION

I hereby declare that the dissertation is my own research. It was written with the
thorough guidance of my supervisor - A. Prof. Ho Thuy Ngoc.
The research results are independent, faithful and have ever not been disclosed.
The data in tables and figures serving for analysis and evaluation were collected,
inherited and developed by the writer from different sources (published research of
other authors, magazine, website) with clear and respectful citations.
The views presented in this thesis are the personal views, and I am solely
responsible for any mistake. I will be entirely responsible for the dissertation‟s
contents.

Hanoi, February 18th 2019
Author

Dang Van Quan

iii


ACKNOWLEDGEMENT

The dissertation has been completed with the great guidance of A. Prof. Ho Thuy
Ngoc. I would like to express my sincere thanks for her patience and massive help
with reading the whole of the thesis and making valuable comments for my
research.
By this occasion, I am much grateful to the Department of Graduate Studies and
Foreign Trade University - who have always create most favorable conditions for

MITPL4 students in completing our study. Thank you so much for their generosity
and I owe a debt of gratitude to all helpers.


TABLE OF CONTENTS
LIST OF ABBREVIATIONS.................................................................................... v
INTRODUCTION..................................................................................................... 1
1. Rationale........................................................................................................... 1
2. Scope of research.............................................................................................. 2
3. Research questions............................................................................................ 3
4. Methodologies.................................................................................................. 3
5. Structure of the thesis........................................................................................ 3
CHAPTER 1: LITERATURE REVIEW................................................................... 5
1.1 History and ethos of international commercial court distinguished from national
courts and international commercial arbitration........................................................ 5
1.2 Missions of international commercial court and recent movements in some
countries.................................................................................................................. 13
1.3 Vietnamese court system......................................................................................... 17
1.3.1 Vietnamese legal corridor........................................................................... 17
1.3.2 Remarkable points in the Vietnamese jurisdiction...................................... 19
1.3.3 Reviewing the hierarchy of the Vietnamese court system..........................22
1.3.4 Current services of Vietnamese commercial court...................................... 24
CHAPTER 2: FINDINGS....................................................................................... 26
2.1 Globalization of the Hague Convention on Choice of Court Agreements.........26
2.2 Challenges need to be resolved by international commercial court...................32
2.2.1 In general on the world............................................................................... 32
2.2.2 In Vietnam.................................................................................................. 33
2.3 Services and innovations of major international commercial courts..................35
2.3.1 Singapore International Commercial Court (SICC).................................... 40

2.3.2 The Courts of the Dubai International Financial Centre (DIFCC)..............44
2.3.3 London Commercial Court (LCC).............................................................. 49
CHAPTER 3: IMPLICATIONS TO VIETNAM..................................................... 54
3.1 Building a trustworthy and competent court system.......................................... 54
3.1.1 Restructuring the organization of the commercial court system.................55
3.1.2 Consolidating domestic legal framework................................................... 56
3.1.3 Building flexible and attractive mechanisms.............................................. 58
a.

Emergency proceedings.....................................................................................58

b.

E-filing procedure, joint hearing........................................................................58

c.

Combining court proceedings with ADR...........................................................59

3.2 Connecting deeply to oversea commercial courts.............................................. 62
3.2.1 Promoting international legal agreements................................................... 65
3.2.2 Short training exchanges to learn each others............................................. 68
3.3 Keeping abreast of international commercial changes....................................... 68
CONCLUSION....................................................................................................... 70
REFERENCES........................................................................................................... i


LIST OF ABBREVIATIONS
No

Acronym

Explanation

1

SIAC

Singapore International Arbitration Center

2

LCC

London Commercial Court

3

DIFCC

The Courts of the Dubai International Financial
Centre

4

UAE

United Arab Emirates

5

CISG

United Nations Convention on Contracts for the
International Sale of Goods (Vienna, 1980)

6

LCIA

The London Court of International Arbitration

7

ODR

Online Dispute Resolution

8

ADR

Alternative Dispute Resolution

9

QMUL

Queen Mary University of London

10

SIFoCC

Standing International Forum of Commercial
Courts

11

VIAC

Vietnam International Arbitration Center

12

VMC

Vietnam Mediation Center

13

UNCITRAL

14

UNCITRAL
Model Law

15

¶

The United Nations Commission on International
Trade Law
UNCITRAL Model Law on International
Commercial Arbitration (1985), with amendments
as adopted in 2006
Paragraph


INTRODUCTION
1. Rationale
We are in a world of globalization, integration, and cooperation. One issue or one
problem nowadays may not be of one country, and it needs more connective
solution to resolve, particularly in transnational commercial transactions. The
complexity of a cross-border commercial deal is increasing, especially in financial
transactions or multi-stakeholder transactions. This trend leads to many changes in
the industry of dispute resolution.
Basically, there are four kinds to settle a commercial dispute: Negotiation,
mediation, arbitration and litigation. Arbitration is a most-used method for many
years, 1 about six decades from the promulgation of the New York Convention 1958
on the Recognition and Enforcement of Foreign Arbitral Awards. This method is
still prime mechanism and its success is undeniable because of many advantages
that it has been enjoyed from the strong legal framework created by the New York
Convention 1958. Recently, our world has started switching to use increasingly
other kinds, amongst them, using litigation in an international commercial court is
remarkable and this created a new trend with opens of new courts around the world.
In this context, Vietnam still seems to stand out of the trend, this may be not
favorable to the economic and legal integration, or it must have own reasons

explaining for its laggard inception.
According to rules of major international commercial courts, for examples,
London Commercial Court (LCC), Singapore International Commercial Court
(SICC), The Courts of the Dubai International Financial Centre (DIFCC), their
services and innovations were introduced in compelling menus. They look more
various and advanced than those of a national commercial court. Hence, we should
conduct a survey from them, make a thorough scrutiny to learn and apply to the
model of the Vietnamese court system. All aforementioned reasons and contexts led

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

8


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.
2. Scope of research
In this dissertation, I would like to limit its contents as a scope of research,
focusing on services and innovations as well as some matters incorporated with
international commercial courts on the world and the court system in Vietnam. The
thesis will review existing books, papers, literatures, and sometimes it will explore
some issues in general of legal study, or about some kinds of dispute resolutions as
well as developments of some major international commercial courts. Through
these, I am going to suggest some recommendations for Vietnamese court system,
in order to become a good partner of other international courts in the near future.
Hence, the central objects of the thesis are services and innovations of international
commercial courts and other relevant information is to clarify thoroughly their own
circumstances and to subject commercial courts to a scrutiny in the relationship and
interaction with each other and with national courts.
The discussion of international commercial disputes in this research should be

distinguished from investor-state investment disputes. As an important legal remedy
for foreign investors to protect their interests against national expropriation, the
resolution of investor-state investment disputes has a distinctive treaty-based
feature, especially bilateral international treaties (BITs). Investor-state investment
disputes normally arise between foreign investors and host states, and they do not
necessarily involve contractual relations, meanwhile international commercial
disputes between equal contracting parties. In addition, unlike commercial disputes
which are normally resolved by civil mediation/litigation or arbitration, investorstate investment disputes are normally resolved by administrative litigation at the
national level or arbitration at the international level, for example, in the
International Centre for Settlement of Investment Disputes (ICSID).


3. 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?
4. Methodologies
This study was conducted using the following methodological approaches. First,
method of theoretical examination was primarily employed to examine the
historical development and current situation of commercial court system, especially
in the context of the new trend on the world. The thesis mainly leans on secondary
legal data from some well-known institutes, such as International Chamber of
Commerce, Queen Mary University of London. Second, method of conceptual
analysis was also utilized to analyze legal rules and point out their strengths and
weaknesses in keeping the progress and development of a court.
In the legal field, needless to say, opinions of a distinguished jurist or a chief
justice are very valuable for referring and considering when we want to make a
sound understanding about the matter we are researching. That is why in my thesis I

would like to refer to lots of papers from great scholars to make clear for my
comments and my conclusions.
5. Structure of the thesis
The thesis will focus on examining services and innovations of some major
international commercial courts which are its main objects. Apart from the
introduction and conclusion sections, the contents of the thesis will be divided into
three chapters.
Chapter 1 will be dedicated to review existing papers and works of well-known
jurists studying on international commercial court, in order to point out deficiencies
of arbitration and expectations from users on the mission of international


commercial court. In this chapter, recent movements in some countries, remarkable
points in jurisdiction and the structure of the Vietnamese court system also will be
introduced.
Chapter 2 will be principal findings, with three main identifications. First, this
chapter will draw out a new trend of development in terms of legal framework
which is the globalization of the Hague Convention on Choice of Court
Agreements. Second, the greatest and pressing challenges that an international
commercial court needs to address will be mentioned. Third, the thesis will point
out services and innovations of newly established international commercial courts,
such as Singapore International Commercial Court (SICC) and the Courts of the
Dubai International Financial Centre (DIFCC), or of a long-standing international
commercial court, for example London Commercial Court (LCC), highlighting their
individual characteristics and the variety in development strategies as well as
differently oriented goals.
Chapter 3 will set out implications to Vietnam in order to ensure the prospective
development for its commercial court system. The implications will be built upon
three aspects. In the first place, building a trustworthy and competent court system
is the imperative and foremost suggestion. It comprises of consolidating domestic

legal framework, restructuring the organization of the commercial court system, and
building flexible and attractive mechanisms. In the second place, connecting deeply
to oversea commercial courts is the next priority through promoting international
legal agreements and short training exchanges between international commercial
courts. Finally, the Vietnamese commercial court system can not stand out of
changes on the world, so keeping abreast of international commercial changes is the
third proposal which will be the last one in this chapter.


CHAPTER 1: LITERATURE REVIEW
Definitions of services and innovations of international commercial court:
According to the Cambridge‟s Dictionary, service is “business activity that involves
doing things for customers rather than producing goods”, or “a single act of doing
something for a customer”, or “the way that employees of a business, store, etc. deal
with customers, especially how quickly and effectively they do this”2. In the
Oxford‟s Dictionary, service is “assistance or advice given to customers during and
after the sale of goods”3. Therefore, we can define in our context that “service” is a
concept being used to talk about an act or a way of doing something for clients
emphasized on how quickly and effectively. As to innovation, according to the
Cambridge‟s Dictionary, innovation is “a new idea or method, or the use of new
ideas and methods”4. Now we turn back to the main parts of the literature review.
1.1 History and ethos of international commercial court distinguished from national
courts and international commercial arbitration.
There are a number of researches and papers written in English. The first one is
the book “The Practice and Procedure of The Commercial Court, Sixth Edition”
author Sir Anthony Colman, Victor Lyon, and Philippa Hopkins. This book
summarized the history of commercial court and showed that the first commercial
court in the world was created in 1895 in England. 5 In addition, there are more
papers written by chiefs of justice in Singapore, Australia, France, Netherlands, etc.
For example, Chief Justice of Singapore International Commercial Court, Mr.

Sundaresh Menon with his paper “International Commercial Courts: Towards a
Transnational System of Dispute Resolution” as an opening lecture for the Dubai
Courts Lecture Series 2015, he analyzed the vital changes of our world from
sovereignty and legal equality of states with economic and political boundaries
between jurisdictions to globalization due to the rise of connective technology
2 />3 />5Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the Commercial
Court, Sixth Edition, Cambridge, chapter 1, 6-7.


which has given rise to a corresponding increase in the number of transnational
commercial disputes, and how arbitration answered the need for an international
commercial dispute resolution system. The Chief pointed out some lessons we may
learn from experience of arbitration to build a commercial court system, he
described a need for an alternative, and why international commercial courts are
well placed to address this need. He also examined the models of SICC, DIFCC;
compared them each other and between them with arbitration and with a national
court. The paper is very interesting and informative, showing his great view with a
macro-vision and persuasive comments. Nevertheless, there are not many
comparisons and analyses with regard to services and innovations of SICC and
DIFCC. Similar sentiments have been expressed in the lecture “Commercial Justice
in the Global Village: The Role of Commercial Courts”,6 by the Chief Justice of
England and Wales, Mr. John Thomas who has showed an imperative demand in
which commercial courts should adopt a clear strategic approach to how they meet
the change of the world because our world has come together and our financial and
commercial markets are changing ever more rapidly as a consequence of the digital
revolution. He asserted that the basis of that strategic objective must be
strengthening the rule of law to resolve individual disputes in a timely, costeffective and just manner, and to guide wider market behavior, focusing on four
broad areas – (1) market motivated, but judge led, reform; (2) personnel; (3)
process, and (4) product – and commercial courts should take account of and learn
from each other, as well as make best use of the possibilities that digital technology

is providing.
There are many different mechanisms in resolving a transnational commercial
dispute on the world, such as negotiation, mediation, arbitration, litigation and
online dispute resolution (ODR). Negotiation, mediation, arbitration and litigation
are in the group named ADR_ alternative dispute resolution. Sometimes we also
find a combination using each type to create a new method, like Arbitration6John, 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 process by which parties refer, usually voluntarily, their disputes
to an impartial third party, an arbitrator(s), selected by them for a binding decision
based on the evidence and arguments to be presented before the arbitration tribunal
(a single arbitrator is often used for simpler disputes with smaller claims, while
three-person panels are common for complex disputes with larger claims).
Arbitration is initiated by any party invoking a pre-dispute agreement to arbitrate,
such as an arbitration clause in a contract. It cannot validly occur unless the parties
have specifically agreed to use this process to settle their dispute. Arbitration may
still be the most widely used Alternative Dispute Resolution (ADR) technique.
Arbitration has taken the lead in international litigation as the principal way to settle
international disputes. Since the promulgation of the 1958 Convention on the
Recognition and Enforcement of Foreign Arbitral Awards (the New York
Convention- The Convention has been ratified by 159 countries around the world
and has been described as the single most important pillar for international
arbitration)7, there are few contracts in international commercial transactions that do
not provide for arbitration as the preferred mode of dispute resolution. 8 Now, there
are over forty institutions around the world that hold themselves out as being
neutral administrators of international arbitration and each has a set of rules. The
Global Sales Law survey concluded that “disputes in international trade are, today,

primarily a matter for arbitral tribunals”.9 From these said statements, international
commercial arbitration seems to be perfect, preeminent and supplies well all the
needs of international businesses.
Commercial Litigation is the process of taking a legal action regarding business
transactions through a commercial court. A business litigation lawyer is often
consulted for legal representation and to help settle a dispute. The court will render
7Status Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York,
1958), />8Pierre A., 2017, the Powers and Duties of an Arbitrator, 1.
9Benjamin, H., 2017, Conflict of Laws and Arbitral Discretion, Oxford, 9, ¶1.15


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.
Most companies doing business internationally are reluctant to enter their
customers or partners' courts. They fear corrupt or protective judges. They are
unfamiliar with and therefore sceptical of local law, local language and custom.
They seek to avoid inconsistent outcomes. While trade and investment were
becoming increasingly transnational, and the multinational corporation was
developing with an interest in promoting business and profits without regard to
national boundaries, national courts, at least from the foreign trader's or investor's
point of view, remained resolutely local in outlook. Such assessment of the
shortcomings of judicial settlement of commercial disputes by local courts has
helped international arbitration to grow in prominence.
That is not to say that there are no domestic courts that have managed to
overcome this perceived shortcoming and endeared themselves to international
litigants. In this regard, one can mention the London Commercial Court. This Court
attracts a significant proportion of litigants where one or both parties to the disputes
do not have any real or significant connection to the United Kingdom. It is
suggested that 80% of the work before the London Commercial Court has, at least,

one party who is based outside the jurisdiction.10 There are a number of reasons
why this type of national court is preferred to other national courts in resolving
international commercial disputes. One of the significant advantages of the London
Court is its ability to understand the business and commercial world and London's
link to the financial and business community dates back to the 18 th century under
Lord Mansfield. In the latter half of the eighteenth century, the foundations of
mercantile law were laid.11 Trials of commercial actions were frequently held in the
Court of King‟s Bench, in the City of London. Lord Mansfield was Chief Justice in
10 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, ¶1.

1
5


the 32 years from 1756 to 1788. After the era of Lord Mansfield, there was a strong
feeling that the court was not a satisfactory forum for the resolution of commercial
disputes. Litigation was regarded as too slow and too expensive. The judges and the
juries were unfamiliar with everyday commercial activity. On 24 th October 1894 the
judges of the Queen‟s Bench Division met and appointed a committee from
themselves to consider whether it was possible to establish a Commercial Court to
make changes in procedure and administration as they considered necessary for the
better administration of justice. In February 1895 the fruits of the committee‟s work
emerged in the form of the famous “Notice as to Commercial Causes”. 12 The result
of the “Notice as to Commercial Causes” was that the “Commercial Court” was
created in 1895. 13, 14
There are, of course, the well-known reasons of judicial independence, respect
for rule of law and the commercial friendliness of the English Common Law. This
cemented London's place as an attractive venue for international commercial
dispute resolution, whether it is litigation or arbitration.

Since its inception in 1895, the Commercial Court has been concerned with
matters arising in relation to commercial arbitrations held in London and elsewhere
in England and Wales. The great majority of commercial arbitrations held in
England were either maritime arbitrations or commodity contract arbitrations.15
Other types of arbitrations which from time to time come into the court‟s orbit are
harder to classify, and many of the arbitrations which fall to be considered are socalled “ad-hoc” arbitrations which are not administered by a particular arbitral
body. The court is very occasionally concerned with international arbitrations in
other fields, such as those administered by the London Court of International
12 Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the
Commercial Court, Sixth Edition, Cambridge, Chapter 1, Page 6.
13 Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the
Commercial Court, Sixth Edition, Cambridge, Chapter 1, Page 7.
14Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the Commercial
Court, Sixth Edition, Cambridge, Chapter 1, Page 8.
15 Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the
Commercial Court, Sixth Edition, Cambridge, Chapter 1, Page 289, ¶1.

16


Arbitration or the International Chamber of Commerce, but the rules of such bodies
generally exclude or limit rights of recourse to national courts, and so the
Commercial Court‟s involvement in these types of dispute is necessarily less
frequent. Recently, the court has been called on to review awards made under
international investment treaties, and it has been held by the Court of Appeal that it
has jurisdiction to do so.16
Now we go together to the definition of international commercial court. After
looking for a long time with a search engine on the Internet for possibly acceptable
answers, one comes to a conclusion that there has not been a clear definition of
“international commercial court”. In my comprehension, international commercial

court is a specialized body of a national judiciary based upon hybrid features of a
national court and an arbitral tribunal in order to decide mainly international
commercial disputes. It is not simply a national court or an arbitral tribunal.
International commercial court can draw on the strengths of the foundations of their
municipal courts (such as: published judgments, rights of appeal and the availability
of joinder), while also incorporating desirable features of arbitration (such as
confidentiality). International commercial court‟s rules and procedures cater to
commercial disputes involving foreign litigants and cross-border disputes that often
have little or no connection to the state within which the court is situated. This can
make international commercial courts attractive to parties who find both litigation
in national courts and international arbitration unappealing.

International

commercial courts are inspired in part by the London Commercial Court and have
some unique features when compared with domestic courts. The general principle is
that foreign lawyers do not have a right of audience in the national courts of other
jurisdictions. By contrast, it is much easier for foreign lawyers to represent parties
before international commercial courts. In addition, judges may come from different
jurisdictions in some international commercial courts (some but not all; for
example, Singapore International Commercial Court or Dubai International
16 Sir Anthony, C., Victor, L., & Philippa, H., 2017, the Practice and Procedure of the
Commercial Court, Sixth Edition, Cambridge, Chapter 1, Page 290.


Financial Center). Their judicial bench includes judges from various foreign
jurisdictions.
The main difference between international commercial court and international
commercial arbitration is the basis for activities of judges and arbitrators. Judges are
appointed and paid by the state to render a judgment. On the other hand, the

arbitrators‟ activity relies on a very different basis. It relies on the contract accepted
by the parties. The parties waive their fundamental rights to go before a state judge.
They place their confidence in arbitrators who they chose for the particular case due
to their specific skills and experience. As a result, choosing arbitration means
choosing a totally different way and arbitral proceedings will therefore also be used
and applied in a different manner than court proceedings. Judges and arbitrators are
in the same market and supply the same needs but with clearly different services.
While arbitrators never interfere in the field reserved for judges, judges may be
invited to intervene in the arbitration proceedings. This intervention may occur at
three different levels: 17
The first level is at the beginning of or during the arbitration in order to facilitate
or to control the functioning of the proceedings. This is a non-exclusive power since
the judges are merely invited to intervene and to help the parties and the
arbitrations. Therefore, these competences may be attributed to a third party,
namely to private institutions such as the SIAC, the LCIA (The London Court of
International Arbitration).18
Secondly, once the award has been rendered, the judge may intervene based on
recourse for annulment in order to control the award. The control of arbitral awards
falls into the exclusive competence of the judges. Under the UNCITRAL Model
Law,19 the control of arbitral awards is limited to the constitution and the
17 Baudenbacher, 2010, International Dispute Resolution, Vol 2, Dialogue between Courts in
Times of Globalization and Regionalization, German Law Publishers, 98
18 Baudenbacher, 2010, International Dispute Resolution, Vol 2, Dialogue between Courts in
Times of Globalization and Regionalization, German Law Publishers, 99
19 UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments
as adopted in 2006


competence of the arbitral tribunal, the respect of a few fundamental procedural
rights and the control of the content of the award.20 These limitations are perfectly

in line with the essence of arbitration. Judges are invited to control the application
of the law in the field of arbitration and to control whether the arbitrators have
followed the minimal standards required in order to justify the parties‟ waiver of the
normal state procedure.21
Thirdly, there is possibility for intervention when the judge is asked to provide a
help for the enforcement of an award. The judges are invited to control foreign
awards. They will accomplish this task according to the criteria set up by the New
York Convention. Those standards are practically the same as in most national
legislations, but they have to be applied in an open way and really internationally.
On the other hand, compared with the arbitral model there is greater accountability
and transparency in the international commercial court‟s model, as it remains firmly
underpinned by judicial control.

20 UNCITRAL Model Law on International Commercial Arbitration 1985, Part two, Page 29-30,
¶21, 26.
21 Baudenbacher, 2010, International Dispute Resolution, Vol 2, Dialogue between Courts in
Times of Globalization and Regionalization, German Law Publishers, 100.


1.2 Missions of international commercial court and recent movements in some
countries
There has been research on international commercial court in certain countries as
well, for example Australia, or China. Both provided an inside look into
commercial court. To begin with, in Australia, the paper “An International
Commercial Court for Australia- Looking Beyond the New York Convention”
written by the co-author: the Chief Justice of Victoria- Mr. Marilyn Warren, and the
Judge in Charge of a Commercial List, the Arbitration List and the Taxation List in
the Commercial Court of the Supreme Court of Victoria- Mr. Clyde Croft. They
discussed two brief examples of transnational legislation which form an important
part of the international legislative architecture, these are the New York Convention

1958 and the Hague Convention on Choice of Court Agreements (the Hague
Convention), and then considered existing international commercial court models five prime examples of courts which have been described as “international
commercial courts”. They are the relatively newly established Singapore
International Commercial Court (SICC), the Qatar International Court (QIC), and
the courts of the Dubai International Financial Centre (DIFCC), the Abu Dhabi
Global Market (ADGM), and a long-standing court- the London Commercial Court
(LCC), but the paper focused on the circumstances in which they were established,
did not mention much enough about their services. Their aim was to find out the
manner in which other international commercial courts have been established and
developed, in order to provide useful guidance and issues for consideration in the
establishment of an Australian international commercial court. Eventually, they
withdrew a conclusion: “The proposal for an international commercial court for
Australia cannot be left to the Courts themselves or the legal profession to develop
and agitate. The experiences of Singapore, Dubai, Abu Dhabi, and indeed, London
demonstrate that it is vital for there to be government interest and support for such


a proposal”.

22

Secondly, in China, I found a doctoral thesis of a PhD candidate

studied in Erasmus University Rotterdam: “Foreign-Related Commercial Dispute
Resolution in China: A focus on litigation and arbitration”23. This is the in-depth
study into China's arbitration and international commercial litigation, explaining the
core principles of litigation and arbitration which are widely recognized in
international legal documents and literature. It depicted institutional designs of
Chinese courts and arbitration institutions, highlighted the statutory differences
between domestic and foreign-related commercial cases in litigation and arbitration,

and provided an overview on the proceedings of international commercial litigation
and arbitration. The dissertation also provided an internal comparative analysis to
show the relative advantages and disadvantages of international commercial
litigation and arbitration with regard to the core principles. Through these analyses,
the author illustrated disparities in international commercial litigation and
arbitration, and made recommendations accordingly for their 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
Resolution in Asia”.24 This research put developments of international commercial
courts in comparative perspectives and examined normative,

procedural,

institutional issues and practical challenges. It also assessed and critically examined
the legal/legislative infrastructure required to accommodate the establishment of
international commercial courts for cross border commercial disputes. After
analyzed and compared the approaches between European mechanism and Asian
mechanism, the author withdrew a conclusion “It is also clear that there is no one
single model for advancing the causes of international commercial dispute
22 Marilyn, W & Clyde, C., 2016, An International Commercial Court for Australia - Looking
beyond the New York Convention, Melbourne, 39.
23Bo, 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.


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.
If international commercial court offers services to improve the deficiencies of
arbitration and meets well expectations from users, I believe that it can compete
directly to international commercial arbitration, although at present many surveys
do not support that prediction. According to the QMUL 2015 Survey, 25 and the
QMUL 2018 Survey,26 international commercial arbitration is still the prime
method amongst respondents‟ preferred dispute resolution mechanisms with 90%
and 97% of respondents in 2015 and 2018 respectively. These statistics prove that
international commercial arbitration still keeps the predominant position at least at
present.
Nonetheless, there are some bases for my prediction. There are inverse
movements between international commercial court and international commercial
arbitration. First and most importantly, there is the new movement inside
international commercial court. From establishing new bodies to optimizing their
rules and the rise of caseloads, for example, in 2016, over 1,100 claims were issued
in the Admiralty and Commercial Court (England), of which 70% involved at least
one party whose address is outside England and Wales and 45% were cases where
all parties involved were international. In the year end to July 2017 there were over
700 claims, with 71% being international in nature and over 49% of those being
cases where all parties were international.27 In DIFCC, the number of cases
increased from 321 cases in 2016 28 to 509 cases in 2017 29, and in SICC there were
25 QMUL
(Queen
Mary University of London) 2015 Survey, Page 5,
/>df
26 QUML 2018 Survey: The Evolution of International Arbitration, Page 5,
/>27
Legal Excellence, Internationally Renowned, UK Legal Services
2017, theCityUK, Page 7 28DIFCC

Annual


review
2016,
/>

19 cases in 2018 (1 case was filed directly with SICC, 18 other cases were
transferred from the Singapore High Court).30 In contrast, there has been criticism
against arbitration in that there is a tendency to go for compromises. The problem
arising in connection with arbitration based on a compromise is that it is sometimes
very unpractical. Especially, in the banking and finance sector, the goal of the
parties is to get 100% of what they have required, but they fear that arbitration
could grant them less. In this situation, the parties are better advised to go before an
international commercial court where they are more likely to get the full amount
asked for. On the other hand, through other parts of my thesis in Kobe University 31,
we saw how international commercial court has provided better services which
replace the weak characteristics of international commercial arbitration, such as
high cost, lack of effective sanctions during the arbitral process, lack of power in
relation to third parties, lack of appeal mechanism and others. Therefore, in my
opinion, international commercial court can become a potential

rival

of

international commercial arbitration. This needs a certain period of time to become
true, because international commercial arbitration has been underpinned by the
long-standing Convention, the New York Convention, which has six decades of
development.

29

DIFCC
Annual
review
2017,
/>30
A Landmark First Case Filed in the Singapore International Commercial Court,
/>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.


1.3 Vietnamese court system
1.3.1 Vietnamese legal corridor
Any legal system is partly influenced by history, socio-political and economic
conditions, so we should quickly review them to get enough understanding of these
backgrounds. Vietnam is a socialist country under the leading of the Communist
Party. Therefore, the current legal system of Vietnam has its own nature. As we
know, Vietnam was occupied by China for over one thousand years - until 938
Anno Domini, and was then independent until the mid 19th century before was
colonised by colonialist France in 1864. In 1945, Vietnam dislodged colonialist
France from its land and declared the birth of the Vietnam Socialist Republic. In
1946, Vietnam held the first National Assembly election, which adopted its first
constitution. However, the situation was precarious because colonialist France tried
to regain power by force, resulting in Vietnam-France War (1946-1954). After
defeating colonialist France in 1954, the country was divided into the North and the
South. The South was named the Republic of Vietnam; while the North was named

the Democratic Republic of Vietnam. The intervention of the United States led to
Vietnam-America War, this war ended in 1975, and the country was unified. In
general, we can divide into four periods of history which affect the Vietnamese
legal system, such as: feudal regime; French colonialism; Soviet Union; and the
renovation period from 1986 when the Vietnam Socialist Republic introduced “Đổi
mới”- a renovation policy in 1986. The thesis only focuses on the legal system from
1986 up to present and looks at a narrow aspect in connection with its topic instead
of a comprehensive look.
The country has developed a socialist legal system based on the civil law system,
with some major modifications from Marxist-Leninist ideology. The current legal
system of Vietnam has the following characteristics32:
− Legislation is the most important source of law;

34

A look at Vietnam's legal system, 2017, />
25