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

LUND UNIVERSITY

HANOI LAW UNIVERSITY

FACULTY OF LAW

JURISDICTION
OVER CIVIL DISPUTES
CONTAINING FOREIGN ELEMENTS
IN VIETNAMESE AND SWEDISH LEGISLATION
- UNDER THE APPROACH OF COMPARATIVE STUDY
SPECIALTY: INTER N A TIO N A L AND C O M PARATIVE LAW

CODE: 60 38 60

MASTER OF LAW THESIS
STUDENT: DONG TH I KIM THOA
t h ư v

Te S

7

TRUÔNG ĐẠI HOC LUẬT HA NÓI
ph ò ng

GV

___

SUPERVISORS:
PROF. DR. NGUYEN BA DIEN

DR.PROF. M ICHAEL BOGDAN

H A N O I - 2004


Contents
PREFACE

1

ABBREVIATIONS

2

1 INTRODUCTION

3

1.1 Rationales

3

1.2 Purpose and major questions

4

1.3 Limitations

4

1.4 Previous research

5

1.5 Materials and research methodology

6

1.6 Disposition

6

2 GENERAL THEORITICAL ISSUSES ON JURISDICTION OVER
CIVIL DISPUTES CONTAINING FOREIGN ELEMENTS
2.1. Some main concepts
2.1.1. The concept o f "civil dispute containing foreign elements”

7
7
7

2.1.2 The concept o f “Jurisdiction over civil disputes containing elements”

11

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

13

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

14

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

16

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

19

2.2.1. The Swedish and Vietnamese court systems

19

2.2.2. The systems o f legal framework on jurisdiction over civil disputes
containing foreign elements

20

3 THE RULES OF COURTS’ JURISDICTION IN SWEDISH AND
VIETNAMESE LAW

25

3.1. General bases of jurisdiction

25

3.1.1. Domicile, nationality and other personal connecting factors

25

3.1.2. Some other bases o f jurisdictional rules

27

3.1.3. Some general comments

30

3.2. Jurisdictional rules for some particular kinds of dispute
3.2.1. Civil, commercial, and labour disputes (or disputes relating to
contracts, torts and property cases)

31
31


3.2.2.

Matrimonial and family disputes

3.3 Some general comments

4

THE ISSUES ON IMPROVING VIETNAMESE LAW ON
JURISDICTION
OVER
CIVIL
DISPUTES
CONTAINING
FOREIGN ELEMENTS IN THE PROCESS OF INTERNATIONAL
INTEGRATION
4.1. The reasons for continuously improving Vietnamese law
4.1.1.

39
45

47
47

Some fundamental point of views o f the Communist Party o f Vietnam

47

4.1.2 Some requirements of rapidly and effectively settlement civil disputes
in the trend of international Integration

48

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

49

4.2 Some basic requirements for improving Vietnamese law on jurisdiction
over civil disputes containing foreign elements

51

4.3 Some suggestion of solutions for the courts’ jurisdictional rules

51

4.3.1 The short - term solutions

52

4.3.2 The long-term resolutions

53

5 CONCLUSION

55

BIBLIOGRAPHY

56

TABLE OF CASES

59


Preface
The question o f how the States deal with civil disputes containing foreign elements is
a complex and interesting one. A civil dispute containing foreign elements always
concerns more than one country, so that it relates to more than one legal system.
Therefore, a preliminary question o f conflict o f laws is which national authority will
have the competence and which legal system will be applied to deal with the case.
Up to now, the legal frameworks o f Sweden and Vietnam o f conflict o f laws and
jurisdiction over disputes containing foreign elements have been improving day by
day. To be in line with general theories o f International Private Law, the system of
jurisdictional rules in Swedish and Vietnamese law have many similarities. However,
apart from the socio- economic conditions and the historical process o f development,
there are also many differences between two systems. In the background o f judicial
co-operation in the process o f international integration o f Vietnam at present time, a
research o f this subject will have a realistic meaning.
For a person who has a first and very short time to study not only conflict of laws in
European Union and Sweden but also those in Vietnam like me, it is a great
interesting to approach a new legal subject. In my situation, I dare not have an
ambitious result. The purpose o f this thesis is only to reappear an overview o f the
Swedish and Vietnamese legal framework o f the courts’ jurisdiction over civil
disputes containing foreign elements under the approach o f comparative study.
Shortcomings are inevitable due to my limited knowledge, materials, and time for
doing it. However, hopefully I shall be the first Vietnamese person who present
systematically and total in details about the Swedish and Vietnamese legal
framework o f the courts’ jurisdiction over civil disputes containing foreign elements.
I am indebted to Swedish International Development Cooperation Agency (SIDA)

that gave me a good chance to study in Vietnam and Sweden. I would like to thank
Hanoi Law University and the Faculty o f Law o f Lund University as well as all o f
professors and staffs here that helped me so much during my studying. Especially, I
am very much grateful to Professor Michael Bogdan and Professor Nguyen Ba Dien,
my supervisors, who were very patient to offer kind to help to me to complete this
thesis.
D ong Thỉ K im Thoa
Hanoi, Vietnam
November 2004


Abbreviations

AFTA

Asia Free Trade Area

APEC

Asia Pacific Economic Cooperation

BTA

Agreement between the United States o f America and the
Socialist Republic o f Vietnam on Trade Relations

EC

European Community

ECJ

Court o f Justice o f the European Communities

ECR

European Court Reports

EEC

European Economic Community

EFTA

European Free Trade Association

EU

European Union

ICSID

International Central for Settlement o f Investment Disputes

SFS

Swedish Collection o f Statues (Svensk Forfattning Samling)

ƯNCITRAL

United Nations Commission on International Trade Law

UK

United Kingdom

WTO

World Trade Organization


1 Introduction
1.1 Rationales
* Civil disputes containing foreign elements and settlement these disputes are
complex and interesting theoretical and practical issues in the legal science in
Vietnam nowadays, because o f the following reasons: Firstly, the legal mechanism
o f settlement civil disputes containing foreign elements as well as jurisdictional rules
always not only be bound in national sphere but also international sphere. Secondly,
the increase o f civil disputes containing foreign elements in the background o f the
process o f regional and international integration o f Vietnam has been objectively
demanding a rapidly legal adjustment and a deeply scientifically research. Thirdly,
despite Vietnamese legal framework has been considered as a renovation o f civil and
commercial disputes settlement procedures; it still has many outstanding problems.
Eventually, an important requirement in the process o f international integration o f
Vietnam is to create a good legal background, in which has a good system o f
jurisdictional rules for civil dispute settlement.
At present, there has had many studies in the legal science field in Vietnam
concerning settlement o f civil disputes containing foreign elements. However, most
o f them concentrated on mechanisms and procedures in some fields o f this area.
There has not had any study on jurisdictional rules o f the courts, which based on a

comparative connection with a foreign legal framework.
* In the process o f establishing legal framework for international disputes settlement,
the State o f Vietnam must cany out international cooperation in order to select and
research international experiences o f organizing and operating o f judicial bodies.
In the background o f developing Asia and Europe co-operations, Vietnam has been
strengthening co-operations with Member States o f European Union. Therefore, it is
necessary to strengthen co-operations in judicial field in order to deal with civil
disputes arising out o f the daily life and commercial and investment activities.
Sweden is one o f the countries that have had traditional relations with Vietnam for a
long time. Moreover, Swedish legislation has many similarities to Vietnamese
legislation. So that, a research o f Swedish legislation and even European Union (EU)
legislation on jurisdiction and enforcement judgments in civil and commercial
matters need to be considered as a very necessary thing to do.
Up to now, there has not had any study in Sweden and other E U Member States,
which on Vietnamese law on jurisdiction over civil disputes containing foreign
elements based on a comparative connection with the legal fram ew ork o f one o f
these countries.
All o f things mentioned above are the main reasons for the author o f this thesis to
decide to choose a topic o f “Jurisdiction over civil disputes containing foreign
elements in Swedish and Vietnamese legislation - under the approach o f comparative
study”.


1.2 Purpose and major questions
The purpose o f this thesis is to clarify theoretical basis and real situation in
Vietnamese law and Swedish law on jurisdiction over civil disputes containing
foreign elements. Therefore, based on the analysis o f current legal provisions and
some practical issues, the aim is to present particular contents related to principles
o f dealing with conflicts o f jurisdiction in Vietnamese and Swedish International
Private Law, through the way o f comparative analysis.

The objective is to focus on some general theoretical issues, the process o f
development and current jurisdictional rules o f two countries, as well as some
outstanding problem s in the practice o f application o f Vietnamese jurisdictional
rules and the issues on continuously improving Vietnamese law on jurisdiction over
disputes containing foreign elements.
More particularly, the thesis w ill focus on some theoretical and practical questions as
follows: (i) what are sim ilarities and differences in the system o f jurisdictional rules
in current Vietnamese and Swedish legal framework, and why; and (ii) how to
improve Vietnamese law on jurisdiction over civil disputes containing foreign
elements in the process o f international integration.

1.3 Limitations
Apart from the purpose m entioned above and because o f limited time and materials
and the thesis’ framework, the author o f this thesis determines the limitations of
researching as follows:
Firstly, the thesis seeks to present all o f main contents concerning jurisdictional
conflicts, which belong to the scope o f adjudication o f International Private Law.
Therefore, other aspects o f jurisdiction over disputes will not be examined.
Secondly, the discussion fo cu ses on only the issues related to the co u rt‘s jurisdiction.
The issues relates to the arbitration’s jurisdiction are very interesting, but will be
excluded because o f the thesis’ lim ited framework. Moreover, the concept of
“jurisdiction” in the international civil procedure has a large sphere that concludes (i)
judicial jurisdiction, (ii) jurisdiction on the choice o f applicable law, and (iii)
jurisdiction on recognition and enforcem ent foreign judgments. Despite o f that, the
thesis only fo cu s on the fir s t one that is judicial jurisdiction and rules o f
jurisdictional conflicts.
Thirdly, because o f the approach o f two deferent national legal systems under a
comparative method, the thesis will not present all o f their theoretical and practical
issues but mainly concentrates on some most general and important provisions in
some fundam ental Swedish a n d Vietnamese legal documents in order to draw an

overview o f the system ofjurisdictional rules.
Eventually, the resolutions for improving Vietnamese law in the thesis also focus on
jurisdictional rules o f the courts in settlement o f civil disputes containing foreign
elements. M oreover, they are only considered as the first results o f studying. Thus,
they must be more perfected.


1.4 Previous research
Conflicts o f jurisdiction over civil disputes are not completely a new subject.
However, not many studies have been made directly on this topic in Vietnam as well
as in Sweden. In fact, there were some studies on conflict o f laws (International
Private Law) or settlement of international civil and commercial disputes, in which
mentioned issues o f jurisdiction.
In Sweden, some main studies that relate to the topic that are only about Swedish law
or Swedish conflict o f laws in general; such as Swedish conflict o f laws (Hilding Eek,
1965), Swedish Private International Law (M. Bogdan, 1999), Swedish Court and
Foreign law (Maarit Jaintera-Jareborg, 1997), Swedish judicial practice in
international Family and Inheritance law (Lennart Pảlsson, 1986 and 1989), Swedish
law in the new millennium (M.Bogdan, 2000); Dispute resolution by way o f
arbitration (Johan Kwart and Bengt Olsson, 1999),ect. Aside from that, another
sources are studies in other EU M ember States, such as: Conflict o f laws in the
European Community (D.Lasok and p. A Stone, 1987), Conflict o f laws (JCT Chuah
and Alina Kaczorowska, 1996), Civil jurisdiction and judgm ents (Adrian Briggs and
Peter Rees, 1997), Jurisdiction in Contract and Tort under the Brussels Convention
(Ketilbjom Hertz, 1998), Laws relating to international commercial disputes
(Jonathan Hill, 1998), Jaffey on the Conflict o f Laws, (CMV. Clarkson and Jonathan
Hill, 2nd ed., 2002), The law o f International trade (Hans van Houtte, Fciarb. 2nd ed.,
2002), ect.
All o f these studies did not mention to Vietnamese law or perspective of
comparability between Vietnamese law and related countries.

In Vietnam, many studies have seeked to focus on the issues o f disputes resolution.
For instance, Economic dispute settlement and entering into the 1958 New York
Convention (Ha Hung Cuong, 1996), Vietnamese law and the issue on settlement o f
disputes containing foreign elements (Le Song Lai and Phan Ton Viet Anh, 1996),
The fundam ental methods o f dispute settlement in Vietnam on economic and foreign
investment (Hoang The Lien, 1997), Dispute settlement in the fie ld o f foreign
investment (Do Thi Ngoc, 2000), Determination o f jurisdiction in international civil
procedure (Le Mai Thanh, 2000), Some fundam ental theoretical issues on Private
International Law (Doan Nang, 2001), The law relating to matrimonial relations
containing foreign elements (Nong Quoc Binh, 2003), The laws relating to civil
relations containing foreign elements (Nguyen Cong Khanh, 2003), The Vietnamese
co u rts’jurisdiction over civil cases containing foreign elements (Nguyen Trung Tin,
2004), ect.
However, there has not any one that directly presented in full details about the rules
o f conflict o f jurisdiction over disputes containing foreign elements.


1.5 Materials and research methodology
For the author o f this thesis, the materials serve directly for the research are very
lim ited1. The resources used consist mostly o f some legal docum ents2 and some
cases relate to the topic. Besides that, some reference books and articles3 concerning
the objective are also used.
This thesis aims to analyse the real situation o f laws on jurisdiction over disputes
containing foreign elem ents in V ietnam and Sweden. Therefore, a comparative
m ethod and an analytic m ethod are used as the main m ethods throughout the main
parts o f the thesis, not only w ith the main purpose to highlight similarities and
differences, but in order to explain the reasons, to underline the problems o f the
objective as well as the solutions for them. Besides that, historical method,
descriptive and synthesis m ethods will be used to present in brief the historical and
perspective o f legal fram ework and what has been developed in this subject.

1.6 Disposition
Aside from a general introduction (chapter 1), the following contents will be
concluded in this thesis:
Some general theoretical issues on jurisdiction in dispute settlement in International
private law will be presented in chapter 2 in order to describe the definition and
scope o f subjects o f jurisdiction in disputes settlement, the rules o f conflict o f
jurisdiction and their benefits, and the fundam ental principles o f determining
jurisdiction o f the courts, as well as some introductory remarks o f the perspective of
the legal framework.
Chapter 3 will present the current jurisdictional rules o f the courts over disputes
containing foreign elements in Vietnam ese and Swedish International Private Law.
C hapter 4 aims to analyse the issues on continuously im proving Vietnamese law on
the rules o f jurisdiction over disputes containing foreign elem ents in the process o f
international integration.
Finally, a general conclusion (chapter 5) will sum up the overall an analysis and
observations related to contents that have been clarified in the thesis.

' Because o f the fact that m ost o f the conference books in Sw eden are only in Sw edish, except som e
books such as S w edish conflict o f la w s (H ilding Eek, 1965), “S w edish la w in the new m illennium ”
(M ichael Bogdan, ed, 2000).
2 The legal docum ents are used in this research m ainly conclude: The Brussels conventions and
regulations in EU legislation, The Sw edish C ode o f Judicial Procedure, Judicial Assistance
Agreem ents betw een Vietnam and som e other countries and the V ietnam ese C ode o f C ivil Procedure,
ect.
3 See the section 1.4 (as m entioned above).

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2 General theoritical issuses on
jurisdiction
over
civil
disputes
containing foreign elements
2.1. Some main concepts
2.1.1. The concept of “civil dispute containing foreign elements”
- Civil disputes
The concept o f “dispute” is usually used to signify a “general state o f two or more
than individuals, which is created by some significations o f conflicts”4. Under
Vietnamese dictionary5, this concept is explained as a fight o f a conflict which often
o f interests between the parties. In the legal approach, a dispute is the difference and
contradiction relating to rights, interests or obligations between the parties when they
take part into legal relationships. Up to now, there is no any legal document, which
mentions to the definition o f “dispute”. A classic definition was given by the
Permanent Court o f International Justice in 1924 in the Mavrommatis case: “A
dispute is a disagreement on a point o f law o f fact, a conflict o f legal views or of
interests between two persons”6.
Civil disputes are understood that disputes arise out o f the civil relationships. So,
what is a civil relationship? In Vietnamese civil law, it is explained under a narrow
meaning and a wide meaning. Under the narrow meaning, civil relationships include
relations o f property and personal and non - property relations which arising out of
the civil transactions7. In the wide meaning, according to points o f views o f all most
o f Vietnamese legal experts, this concept has a unified meaning that “relations
between persons with each other in the daily life, in consumption or in manufacture

and business which based on the criteria o f equal and freedom o f intention8.
Therefore, civil relations conclude civil relations and others such as commercial
relations, labour relations and matrimonial and family relations. This is suitable with
Swedish law and other countries’ law as well as the objects o f Private International
Law.
Apart from the ways o f determining civil relations under narrow and wide meaning,
in fact these relations were adjusted by different legal documents in a long period of
time. Up to now, under an uniform determination o f the concept o f civil relations

4 V ilhelm Aubert, C ourt an d conflict resolution (The Journal o f Conflict Resolution, V ol. 11. N o l.
Law and C onflict Resolution, 7/3/1967), p.25.
5 Linguistics Institute, Vietnamese dictionary, (Da N ang Publishing, 1998).
6 John C ollier and Vaughan Lowe, The settlem en t o f disputes in International L aw , (Oxford
U niversity Press, 1999), p .l.
7 Pursuant to Article 1 o f The Civil Code o f 1995.
8 N guyen C ong Khanh, The law s o f civil relation s containing fo reig n elements, (Doctor o f law
dissertation, H aN oi Law University, 2003), p. 14.

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under the wide meaning, the mechanism o f resolving disputes o f civil, commercial,
labor, matrimonial and family has been adjusted in one legal documents9.
The 1968 Brussels Convention on jurisdiction and the enforcement in civil and
commercial matters (hereinafter referred as the 1968 Brussels Convention)
mentioned to “civil and commercial matters”, so this proves that commercial matters

do not belong to the concept o f civil matters. However, this Convention did not give
any definition about “civil and commercial matters” . Under an explanation was given
by the Court o f Justice o f European Communities- ECJ, this concept has an
autonomous meaning and it is not for the courts o f Contracting States to determine
the conception o f their own legal system. The ECJ has taken a view that the dividing
line between civil and commercial matters and public law matters is to be determined
by a function test rather than an institution one. The fact that one o f the parties is a
public authority does not mean that the situation falls outside the scope of
Conventions; proceedings brought by a public authority are not to be regarded as
involving civil and commercial m atters10.
The scope o f “civil and commercial matters” is determined similarly in Sweden and
other Member States o f European Union based on the Brussels regime on jurisdiction
and recognition and enforcement in civil and commercial matters. However, in the
1968 Brussels Convention, the basic formula “civil and commercial matters” is not
defined. Article 1 o f this Convention gives an applicable scope which not extend to
revenue, customs or administtative matters, as well as matters relate to i) the status or
legal capacity o f natural persons, rights in property arising out o f a matrimonial
relationship, will and succession; ii) bankruptcy, proceedings relating to the windingup o f insolvent companies or other legal persons, judicial arrangements,
compositions and analogous proceedings; iii) social security; and iv) arbitration.
In Vietnamese civil procedure law, there is a distinction between “dispute” and
“matter” or “case” which often also used in Swedish law and EU legislation. A
“case” is a broader concept which includes disputes and non-conflict orders (such as
in matters concerning personal factors or legal events11. This is very important for
determining the scope o f disputes in civil procedure law as well as in international
civil procedure law.
In conclusion, based on theories o f the objects and the range o f adjustment o f
Vietnamese and Swedish Private International Law, it is necessary to determine that
the concept o f “civil disputes”, in this thesis, is understood under the wide meaning
which includes civil disputes, commercial disputes, labor disputes, matrimonial and
family disputes.

- Foreign elements in civil disputes
W e know that one important issue in Private International Law is to determine
foreign elements in civil disputes, because the foreign elements are the specialties of
civil disputes containing foreign elements which compared with civil disputes which
9 There are 03 Ordinances on proceedings in civil cases, econom ic - commercial cases and labor
disputes. These Ordinances w ill be replaced by the Code o f C ivil Procedure o f 2 004 which w ill come
into force on 1st January 2005.
10 Jonathan Hill, The law relatin g to international com m ercial disputes, 2 nd ed.(LLP London HongK ong, 1998), p.60.
' 1 Under A ticle 1 o f the Code o f C ivil Procedure o f 2004.

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not contain foreign elements, and this leads to a distinction between disputes do or do
not belong to the range o f adjustment o f Private International Law. In the legal
science o f Sweden and other EU countries, the foreign elements in the case may be
events which have taken place in a foreign country or countries, or they may be the
foreign domicile residence or place o f business o f the parties12. “Foreign” elements
may be similar to “international” elements in which the facts o f the case or the
parties have some connections to one or more other countries. In other words, a case
containing international elements is a case in which the parties or other relevant
issues are connected with more than one country13. “International” elements can
make a mechanism, in which national courts have jurisdiction over cases, and
national laws are applied and finally any foreign judgm ent shall enforce in another
countries14.
The foreign elements can appear in one o f three basic fields o f conflict o f laws

(Private International Law) that conclude (i) jurisdiction, (ii) the choice o f law and
(iii) recognition and enforcement o f foreign judgments. The first point which may
have to be divided in a case containing foreign elements is whether a national court
has power to deal with the case at all . The rules that direct the court whether it has
jurisdiction and/or whether it should exercise jurisdiction to hear such a case that
involved only the most tenuous connection with its country, so called as
jurisdictional rules (or the choice o f jurisdiction rules).
In Vietnamese legal science, determination o f “foreign elements” is an important
issue and it has been provided particularly in some legal documents. Although the
civil relations containing foreign elements, especially in family law, had occurred for
a long time ago and had adjusted by law s16, but the concept o f “civil relation
containing foreign elements” only had been moved the first time in the Civil Code of
199517 (Article 826) as follows: “Civil relation with a foreign element is understood
in this Code as a relation in which one o f the parties o f which is a foreign individual
or legal person; or as a relation whose grounds for creation, alteration or termination
have been rooted in a foreign country; or as civil relations whose contents involves a
property that is located in a foreign country”. Under this provision, there are three
significations to determine “foreign elements” in a civil relation: (i) subjects, who are
foreign individuals or foreign legal person, (ii) grounds for creation, alteration or
termination; and iii) property concerns to that relation that located in an foreign
country. Under the theories o f conflict o f law (Private International Law) and apart
12 CM V. Clarkson and Jonathan Hill, Jaffey on the Conflict o f Laws, 2 nd ed. (Butter Worths Lexis
N e x isT M , 2002), p .l.
13 Ibid, p.3.
14 For the purposes o f the conflict o f laws, a “country” is any territorial unit having its own separate
system o f law, whether o f not it constitutes an independent state politically. O f court, it does not
follow that a country, for conflicts purpose, can not concede with a sovereign independent state for the
purpose o f public International law. Indeed, usually they with coincide, for many states have a
uniform legal system through out their territory (CM V. Clarkson and Jonathan Hill, Jajfey on the
C onflict o f Laws, 2nd ed. (Butter Worths Lexis N exis TM, 2002), p.4).

I5CMV. Clarkson and Jonathan Hill, Jaffey on the Conflict o f L a w s, 2 nd ed. (Butter Worths Lexis
N exis TM , 2002), p .l.
16 C ivil relations containing foreign elem ents had factually occurred in Vietnam from the last century,
but they had been adjusted by laws later which in the 2 0 th century.
17 This Code was approved by the National A ssem bly o f the Socialist Republic o f Vietnam on 28 ^
October 1995 and came into force on 1st January 1996.

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from the point o f views that the Civil Code must be an original law o f the fields of
civil, commercial, labor and matrimonial relations, the above provision must be
applied to determine the foreign elements in all o f these relations. However, there
have had many provisions in other legal documents which also give definitions of
foreign elements. This may be explained by the fact that there has not had a uniform
rule for applying Article 826 o f the Civil Code for all o f civil relations which are
objects of Private International Law.
In proceedings o f civil cases, pursuant to Article 405 o f the Vietnamese Code o f
Civil Procedure o f 200418, a “civil case with foreign elements is a civil case in which
at least one o f the parties is a foreign individual, or Vietnamese persons domiciled in
foreign countries; or a civil case between the parties which are Vietnamese citizens
or legal persons but the grounds for creation, alteration or termination under foreign
law or have been rooted in an foreign country, or civil case whose contents involves
a property that is located in a foreign country”. Under this provision, there also are
three significations to determine foreign elements in a civil case. However, it still has
some differences with those in Article 826 o f the Civil Code o f 199519.

A t present, there is not any particular definition o f “civil dispute containing foreign
elem ents” in Vietnamese and Swedish law, even in EURO law. From the analyses
above, a basic definition of it may be established as follows: “Civil disputes
containing foreign elements are conflicts o f rights, interests and/or obligations
between the parties who take part in all o f civil relations (include civil disputes in a
narrow scope, business and commercial disputes, labor disputes and matrimonial
and fam ily disputes) which containing foreign elem ents”.
- Classifications o f civil disputes containing foreign elements
The laws o f aliens in Sweden and other EURO countries are applied in the fields of
family law, contracts and property. According to some Swedish legal experts, there
are some main groups o f civil relations which axe (I) contracts, torts and property
cases and (ii) family law and inheritance cases20.
In Vietnam, civil disputes containing foreign elements used to traditionally be
divided into some groups of civil disputes, business and commercial disputes, labor
disputes and matrimonial and family disputes21. Under the Vietnamese Code o f Civil
Procedure o f 200422, there are about 40 kinds o f civil disputes. The Swedish Code of
Judicial Procedure o f 1942 (SIS 1998: 65) did not have the way o f classifying as the
same as this in Vietnam, but also give about 15 kinds o f civil disputes in the Chapter
10 o f this Code. In fact, they are only groups o f disputes which conclude many
particular disputes with deferent contents and characteristics.

18 This C ode w as approved by the National A ssem bly o f the Socialist Republic o f Vietnam on 15th
June 200 4 and w ill com e into force on 1st January 2005. Aside from this Code, there is The Code o f
Criminal Procedure o f 2003).
19 This issue w ill be presented more particularly in the next Chapter o f this thesis.
20 See M ichael Bogdan and David I. Fisher, Private International Law, in M ichael Bogdan, ed.,
“Sw edish law in the new m illennium ”, (Norstedts Juridik Elander Gotab, Stockholm, 2000), p. 496499.
21 Under Article 25, 27, 29, 31 The Code o f Civil Procedure o f 2004.
22 Pursuant to Article 25, 27, 29, 31.

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

2.1.2 The concept of “jurisdiction over civil disputes containing
elements”
The concept o f “jurisdiction” is generally used to signify the powers to give a
decision in a case based on provisions o f laws. In the book “Conflict in a nutshell”,
David D.Giegel presented: “Before a court can render an effective judgment, it needs
“jurisdiction”, which in this context refer to a state’s dispute - resolving power
exercised either through its court system or through some quasi-judicial body, like an
arbitration panel or administrative board”24. Jurisdiction can be initially divided into
two broad categories: (i) jurisdiction o f the subject matter and (ii) jurisdiction o f the
person which has a further subdivision is rem jurisdiction25.
In the international law, according to Michael Akehurst, there are 4 parts in an state’s
jurisdiction: (i) the power o f one state to perform acts in the teưitory o f another o f a
state’s (executive jurisdiction); (ii) the power o f the courts to try cases involving a
foreign element (judicial jurisdiction); (iii) the power o f a state to apply its laws to
case involving a foreign element (legislative jurisdiction); and its effect is whether
states are under a legal duty to recognize the exercise o f jurisdiction by other states26.

Under Vietnamese dictionary, “jurisdiction is power o f examine and decide one issue
under the laws”27. According to Jurisprudence dictionary, jurisdiction is understood
as a synthetic o f right and obligations as well as decisions o f state bodies regulated
by laws”28. Some authors gave a separated definition, such as: “Judicial jurisdiction
o f a court is a synthesis o f powers provided by laws in which the court has the rights
to judge particular cases and give decisions for them or to ensure all o f judicial
activities in a particular scope and limitation”29. In Private International Law,
jurisdiction in the international civil procedure is the jurisdiction o f the courts o f a
particular States over civil disputes containing foreign elements30.
There are four main methods o f settlement o f disputes in conflict o f laws (Private
International Law) which are: (i) negotiation, (ii) conciliation, (iii) arbitration and
(iv) judgm ent by courts. Negotiation and conciliation are considerer as the methods
o f self-resolution31; while arbitration and justice by courts32 are considered as the
23 Under Article 25, 29, 31 o f the Code o f C ivil Procedure o f 2004.
24 David D. Siegel, Conflict in a nutshell, 2 nd ed. (St. Paul. Minn. W est Publishing Co., 1994), p.31
25 Ibid, p.31
26 M ichael Akehurt, “Jurisdiction in International law", in w. M ichael Reisman, ed, Jurisdiction in
International law (Ashgate: Dartmouth, 1999), p.25)
27 Institute o f linguistics, Vietnamese dictionary, (D a N ang publishing, 1998)
28 Jurisprudence D iction ary (Encyclopedic Publishing, 1999), p.459.
29 Nguyen Van Huyen, Jurisdiction o f the courts in crim inal cases, (Doctor o f law dissertation, Hanoi
Law University, 2003), p.2
30 Law Faculty o f HaNoi National University, Textbook o f P riva te International Law, Prof. Nguyen
B a Dien ed. (The Publishing o f Hanoi National University, 2001), p. 337.
31 Although in conciliation usually has a third person but its nature still is self-resolution.

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methods o f justice. Justice is a jurisdictional method through legal decisions o f the
courts and arbitrations within their competences. Therefore, in laws o f jurisdiction,
there are only courts and arbitrations who are subjects o f jurisdiction.
In case that there has not had any uniform definition o f jurisdiction in Private
International Law, a basic definition may be established as follows: Jurisdiction over
civil disputes containing foreign elements is a synthesis o f powers o f the courts or
arbitrations which are judicial bodies or quasi - judicial bodies in settlement o f civil
disputes containing foreign elements.
Because o f the research limitation and the thesis’ fram ework, all o f contents
presented below only concentr settlement in Private International Law.
In a civil case involving a foreign element, the first thing that a court has to decide is
whether it has jurisdiction. This refers to “the question o f whether country’s court
will hear and determine an issue upon which its decision is sought”33. In this sense, it
is “exclusive jurisdiction” in which the term “jurisdiction” means adjudicatory
competence34.
Theories o f jurisdiction in conflict o f laws (Private International Law) has pointed
out that there are three basic problems in determining whether a court has
jurisdiction: first, whether there is a basic o f jurisdiction; secondly, whether even
though there is a basic o f jurisdiction, the court will decline to exercise that
jurisdiction; and thirdly, whether there is a subject matter limitation in relation to
jurisdiction35.
It is also necessary to note that the scope o f jurisdiction concept in Private
International Law covers all o f jurisdiction in i) determining judicial jurisdiction, ii)
applying the laws and (iii) jurisdiction o f recognition and enforcement foreign
judgments. O f course, the determination o f these kinds o f jurisdiction has only a
relativity meaning, because of the estimate connection between them: a court has
automatically jurisdiction in choice o f applicable law in resolution o f dispute if it has
jurisdiction over these disputes36.

32 The arbitration method is adjusted by arbitration law in which disputes are solved through
arbitrators w ho is trusted by the parties. Justice is a method in which disputes are resolved through
judicial procedure and the courts’ power is on beh alf o f States.
33 James J. Fow cett and Paul Torremans (1998), Intellectual P ro p erty an d P riva te International
law ,(O xford U niversity Press), p. 1
34 Jonathan Hill, The law relatin g to International C om m ercial dispu tes, 2nd ed., (LLP London H ongKong, 1998), p. 13.
35 James J.Fawcett and Paul Torremans, Intellectual p ro p e rty a n d P rivate International L aw , (Oxford
University Press, 1998), p.3
36 In Private International Law, these kinds o f jurisdiction have very wide and com plicated contents.
Because o f the limitation o f its framework, this thesis only concentrates on the first content o f
jurisdiction m entioned above, but not mentions to jurisdiction in choice o f applicable law or
recognition and enforcem ent foreign judgments.

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2.1.3 The conflict of jurisdiction in Private International Law and
rules of jurisdiction of the courts
2.1.3.1 Jurisdictional conflicts
In Private International Law o f many courrtries, a “judicial jurisdictional conflict” is
understood as a phenomenon in which the courts o f different countries have
justifiability and jurisdiction over a dispute containing foreign elements. In this
situation, those courts may exercise jurisdiction with the same parties and the same
cause o f action in two different States and they may have conflict judgments for only
one case. It is a popular phenomenon in theories and practices o f settlement of
disputes containing foreign elements, because o f some basic reasons as follows: (i)

the nature o f these disputes which usually concerning two or more than two countries
and (ii) different countries often have their own laws which they may not similar to
each other. Therefore, jurisdictional conflicts usually exist in the field of
international civil procedure unless States establish general rules o f determining their
courts’ jurisdiction.

2.1.3.2 Jurisdictional rules and their benefits
In order to prevent jurisdictional conflicts in resolving disputes containing foreign
elements, conflict o f laws (Private International Law) has a requirement of
determining rules to point out a particular States which has competent courts. They
are so called “rules o f the choice o f forum” or “jurisdictional rules”.
As things mentioned above, the choice o f forum and the choice o f applicable law and
recognition and enforcement foreign judgments are three main issues in Private
International Law37 and they have a very close connection with each other. So,
jurisdictional rules are very important in Private International Law. They prevent
conflicts between different legal systems by pointing out which particular national
court who has jurisdiction and which law system can be applied. In Swedish conflict
o f laws, the function o f these particular rules is to ensure rational and just solutions
in cases containing foreign elements or otherwise connected with foreign elements or
otherwise containing with foreign country38.
Jurisdictional rules have an important role in the whole o f process o f dispute
resolution. In the starting point o f this process, jurisdictional rules are applied to
solve conflict o f jurisdiction. The next step is to determine the law should be applied
to deal with the case. So, the determination o f jurisdiction always effects to the
choice o f laws, because o f a fact that the national courts often apply their domestic
law for the cases which fall into their jurisdiction (the principle o f lex fori).
The purpose and content o f jurisdictional rules are to determine the jurisdiction o f the
courts o f a particular state. Their object is an appropriate forum for a civil case
containing foreign elements. Therefore, conflict-of-laws problem arise in cases
involving “foreign elements”, that is matters, which by their nature cannot be

37 In Vietnam ese Private International Law, there are also three main issues as w ell as in EU countries.
H ow ever, aside from these, Vietnam ese Private International Law has the fourth point which includes
rules o f legal positions o f foreign individuals, foreign legal persons and foreign states in all o f
relations that belong to scope o f adjustment o f Private International Law.
38 Hilding Eek, The Sw edish C onflict o f lew s, (Martinus N ijhoff/The Hague, 1965), p. 1.

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conveniently disposed o f simply by reference to a “domestic” rule o f law o f the
forum. These problems can be reduced to three classical areas: the choice o f the
forum (jurisdiction), the choice o f the governing law, and the recognition and
enforcement o f foreign judgm ents and arbitral awards39. When a national court is
seised with a case containing foreign elements, it must first determine whether it has
jurisdiction over the cause o f action and the parties involved. Three fundamental
questions that most typically arise in relation to the jurisdiction o f the courts over a
civil dispute involving foreign elements are: (i) when, and on what conditions, will
the courts have or assume jurisdiction to hear and determine a dispute; (ii) when, and
on what conditions, will the courts decline to exercise jurisdiction; (iii) when, and on
what conditions, will the courts stay an action properly brought pending the
resolution o f the same or similar issue in a foreign court? These questions create two
levels o f jurisdictional rules that: (I) the international level which directs a
particular state has jurisdiction to deal with the case and (2) the national level which
directs a particular court o f that State will exercise its jurisdiction.
Under Swedish Private International Law, a matter for the courts o f this country after

the question whether a case is or is not such as to be triable in Swedish courts will
be: what court within the country is the “proper forum”; in other words the question
o f the distribution o f cases between different courts under internal procedure law (so
called “forum rules”)40. This is similar to Vietnamese law as well as theories of
Private International Law.

2.1.4 Some main bases of jurisdiction of the courts in International
civil procedure
Vietnamese laws, Swedish law as well as other countries’ law have particular
jurisdictional rules in dealing with disputes containing foreign elements. These rules
may be similar, but even may be different with each other. In case o f differences
between these rules, it is necessary for Private International Law to establish
particular measures in order to resolve conflict o f jurisdiction by pointing out an
appropriate forum. Because o f a fact that civil disputes containing foreign elements
always concern with two or more counừies, the States need establish some
international treaties in order to determine uniform and particular rules o f judicial
jurisdiction o f each State. In generally speaking, there are some main bases of
jurisdiction which conclude: i) the litigators’ nationality; ii) the connections between
the case and the territory o f the State has competent courts; iii) the litigators’
agreements; and iv) similar application o f jurisdictional rules41:
(1) The factor of litigators’ nationality is used popularly. Vietnamese law and many
countries’ law provide that their national courts have jurisdiction if one or the parties
in the case is or are their national(s). In the most civil law systems, such as those
operating in continental Europe and the former colonies o f those countries, the test of

39 D. Lasok and p. A. Stone, C onflict o f law s in the European Com m unity (Professional books limited,
1987), p.3.
40 Hilding Eek, The Sw edish Conflict o f law s, (Martinus N ijjhoff/The Hague/ 1965), p.74.
41 Law Faculty o f Hanoi National University, T extbook o f P rivate International L aw , Prof. Nguyen Ba
Dien, ed. (Hanoi National University Publishing, 2001), p.340 and continuous pages.

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“belonging” to a country for conflict o f laws purpose is nationality42. Most of
continental European and other civil law countries use nationality as the basic
connecting factor, especially for choice o f law purposes; the personal law is the law
o f the country o f which the person is a citizen43.
(2) The factor o f close connections between the fa c t o f the cases and the territory o f
the country has a competent court, such as parties have the domicile, habitual
residence or their physical presence within the State’s territory when proceeding are
started, or property relates to the case which located in this country, or the grounds
for creation, alteration or termination have been rooted in this country.
- The connecting factors o f domicile, habitual residence or physical presence o f the
litigators within the territory o f the State has competent courts
In Swedish conflict o f laws, domicile is equal to habitual residence. The place of
“domicile” o f an individual is the place where such individual usually lives and has a
permanent residential registration and if he/she has not this place, it shall be the place
where he/she temporary residential registration44. Pursuant to Article 48 o f the
Vietnamese Civil Code o f 1995, the place o f domicile o f an individual is the place
where such individual usually lives and has a permanent residential registration. In
case an individual has no permanent residential registration and has no permanent
place o f residence, the place o f domicile o f that individual shall be the place where
he/she temporarily resides and where he/she has temporarily residential registration.
W here an individual’s place o f residence cannot be determined pursuant to these
criteria’s, the place o f domicile o f that individual is the place where he/she lives or

works, or the place where his/her assets are present or where most o f his/her assets
are present, if that individual has assets in different places.
The concept o f “habitual residence” is one clearly suited to modem conditions where
people more around the world with greater ease than in the past and is ideally suited
for purposes such as divorce jurisdiction or child abduction where the aim is not to
establish a “real home” but rather to identify a jurisdiction with which a person has a
legitimate connection. With a more m odem and realistic concept o f domicile, one
could then engage in a functional analysis to determine which connecting factor,
domicile or habitual residence (or even, perhaps sometimes, nationality) is most
suitable for each conflicts rule45.
- The close connection between the subject - matter o f a case with the territory o f the
State has a competent court
It would be perfectly reasonable for that State to exercise jurisdiction over the case if
it had a close connection with that state. At the present days a very large number of
States claim jurisdiction founded on the subject - matter o f cases. Moreover, there

42 CM V. Clarkson and Jonathan Hill, Jaffey on the Conflict o f Laws, 2 nd. ed. (Butter Worths Lexis
N ex is TM , 2002), p.49-50
43 Ibid, p.22
44 J.J.Fawcett, D eclin ing ju risd ictio n in P rivate International Law, (Clarendon Press Oxford, 1995),
p.372
45 CM V. Clarkson and Jonathan Hill, Jaffey on the C onflict o f Laws, 2nd.ed. (Butter Worths Lexis
N ex is TM, 2002), p 58 - 59

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are obvious advantages in attributing jurisdiction to the state where the facts
occurred4 .
(3) The factor o f litigators’ agreements. This is not a popular factor which
considered a base o f determining jurisdiction in all most o f countries, but some
countries accept jurisdiction over the cases in which has an agreement about the
choice o f an appropriate forum by the parties, although there is not any connection
betw een the case and these countries.
(4) Besides the above bases o f jurisdiction, some States accept the similar application
o f jurisdictional rules o f other States or o f international law in case o f there is not any
international jurisdictional rules in their national law systems.
The legal bases for determining jurisdiction in the international level are normal
conflict rules which only point out jurisdiction o f the courts o f the State who has
enacted them and natural conflict rules which not only point out a particular State but
particular courts o f that State shall exercise jurisdiction. In the international
(multilateral or bilateral) treaties, States may determine unified conflict rules which
only point out the competent courts o f each state. As well as other countries,
Vietnam and Sweden now also apply these rules.

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

whatever litigators’ nationality or domicile or habitual residence. The bases o f this
jurisdiction are (i) special connections between a dispute and the territory in which
has a particular national court, and (il) sovereignty and national interest o f the States.
Because o f these bases, there often have some legal provisions in which disputes
only belong to exclusive jurisdiction o f the courts o f state. For example, Article 22
Brussels I Regulation, some articles in Judicial Assistance Agreements between
Vietnam and other countries, or Article 411 o f the Vietnamese Code o f Civil
Procedure o f 2004, ect47.

2.1.5.2 The theories of forum shopping, declining jurisdiction and stay an
action in proceedings
* Forum shopping-. In Private International Law, an argument that the courts should
be open to anyone is particularly forceful when the parties to an international
46 M ichael Akehurt, “Jurisdiction in International la w ”, in w. M ichael Reisman, ed, Jurisdiction in
International law (Ashgate: Dartmouth, 1999), p.54-55
47 The contents o f these provisions will be presented more particularly in the next chapter o f this
thesis.

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contract have agreed in their contract that a particular court should have jurisdiction.
On the: other hand, there is a formidable case that proceedings should be heard only
in appropriate courts48, which is courts having some genuine connection with either
the pairties or the cause o f action. Many States encourage the process o f shopping
round Ithe world’s courts until one finds a court where one is likely to obtain the most

successful out come. This is so called forum shopping49.
Forum shopping is a practice which has been defined as “a plaintiff by passing his
naturall forum and bringing his action in some alien forum which would give him
relief 'Of benefits which would not be available to him in his natural forum”50.
Further, if judgm ent is obtained in an inappropriate forum, the defendant may well
not have any assets in that jurisdiction against which the judgm ent can be enforced
and it may be necessary to commence further proceedings else where to enforce the
judgm ent
The doctrine o f forum shopping has been applied in Sweden as well as other
European countries for a long time; while it has not researched reasonably in
Vietnam. There is not any provision that relates to forum shopping in the Judicial
Assistance Agreements between Vietnam and some foreign countries as well as in
Vietnamese internal law.
Forum shopping leads to other factors in conflict o f law (Private International Law)
that are forum conveniens and forum non-conveniens. The term o f forum conveniens
can be defined as a court taking jurisdiction on forum non-conveniens the ground
that the local forum is the appropriate forum (or an appropriate forum) for trial or
that the forum aboard is inappropriate. It is a positive doctrine, unlike the doctrine of
forum non-conveniens, which is a negative doctrine concerned with declining
jurisdiction52. Forum non-conveniens can be defined as a general discretionary power
for a court to decline jurisdiction on the basic that the appropriate forum for trial is
aboard o f that the local forum is inappropriate53.
Many countries in Europe (such as French, Quebec, German, Belgium, Dutch,
Netherlands, Swiss, Scandinavian counừies...) have also adopted the forum
conveniens - type jurisdiction rules. Under the Brussels and Lugano Conventions
jurisdiction is always allocated to an appropriate forum. Many countries adopt forum
non conveniens, but in contract many other countries did not adopt this doctrine

THƯVIỆN
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48 Before a (national) court assumes jurisdiction in case involving foreign elem ents, there needs to be
a careful investigation o f all the relevant considerations, such as the interests if the parties and
whether, having regard to the events and the evidence, this court is a appropriate forum to decide the
dispute.
49 CM V. Clarkson and Jonathan Hill, Jaffey on the Conflict o f Laws, second edit. (Butter Worths Lexis
N ex is TM , 2002), p.5.
50 Jonathan Hill, The law relatin g to International C om m ercial D ispu tes, 2nd ed., (LLP London - Hons
Kong, 1998). p.92.
51 CM V. Clarkson and Jonathan Hill, Jaffey on the Conflict o f Laws, 2 nd ed. (Butter Worths Lexis
N ex is TM, 2002), p.5.
52 J.J. Fawcett, D eclin ing ju risd ictio n in P rivate International Law, (Clarendon Press Oxford, 1995),

p.6.
Ibid., p. 10.

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(means the civil law jurisdiction have no such general desire stationary power to
decline jurisdiction)54.
The phrase “declining jurisdiction” refers to the situation where a court which has

jurisdiction refuses to exercise it. It is to be distinguished from the situation where
the rules on jurisdiction are not satisfied and a court therefore dismisses the action on
the basic that it has no jurisdiction. In both o f situations, the result is the same: the
court refuses to try the action, for the reason o f this is forum non conveniens or a
situation in which parallel proceeding and involving the same parties and the same
cause o f action, are continuing in two different States at the same time (lis pendens)'s
or a foreign choice o f jurisdiction agreement or an arbitration agreement. To avoid
this, the parties should get one action decide ahead o f the other which will lead to
problems o f res judicata or a foreign choice o f jurisdiction agreement or arbitration
agreement.
* Staying an action in proceedings
In European countries, staying proceeding on the basic o f the doctrine o f forum non
convenience has a general principle in which determining the appropriate forum. A
stay will be granted on the ground o f forum on convenience if the defendant satisfies
the court that there is another available forum, having competent jurisdiction, and if
there is no foreign forum which is available to the claimant as an alternative forum
for resolution o f the dispute the court will refuse to grant a stay (or will give
permission to serve out)5 . In order to determine the appropriate forum, at the first
stage, the judge must consider which forum is the more appropriate forum by
regarding to real and substantial connecting factors with the disputes; and the second
stage has to be considered only if, having regard to the relevant connecting factors at
the first stage that the judge think it is more appropriate for the dispute to be head by
a foreign court.
In Sweden, the doctrine o f forum no convenience is used when the case’s connection
with Sweden is very week, Swedish courts may deviate from the exact wording o f
the internal forum rules in order to avoid Swedish jurisdiction. For instance, if a
contract were entered into by two American businessmen when they met in the
transit lounge o f Stockholm Airport, without there being any other relevant
connection with Sweden, Swedish courts might decide to dismiss an action
emanating from that contract despite the wording o f Chapter 10 section 4 o f the

Swedish Code o f Judicial procedure57.

54 Ibid., pAO.
55 In most countries, the legislator does not recognise the international lis pendens as a ground for lack
o f com petence. The courts som etim es avoid giving judgem ent when the case is already pending in a
foreign court and the judgment o f that court w ill probably be recognised in their jurisdiction. Some
treaties in jurisdiction avoid lis pendens by granting jurisdiction to only one court. Any other court,
seised o f the case, has to declare itself devoid o f jurisdiction. Examples o f such treaties are the Lugano
Convention and bilateral conventions on jurisdiction (Hans van Houtte, FCIArb. The law o f
In ternational Trade, 2nd ed. (London Sweet & M axwell, 2002), p. 350.
56 CM V. Clarkson and Jonathan Hill, Jaffey on the Conflict o f Laws, 2 nd ed. (Butter Worths Lexis
N exis TM , 20 0 2 ), p 121.
57 J.J.Fawcett, D eclin ing Jurisdiction in P riva te International L a w , (Clarendon Press Oxford, 1995),
p.374.

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

2.2. The systems of courts and legal documents on
jurisdiction over civil disputes in Sweden and
Vietnam
2.2.1. The Swedish and Vietnamese court systems

In Sweden, the courts can be divided into general courts and special courts. There are
two general court organisations: the general courts and the general administrative
courts. The general courts consist o f district courts, courts o f appeal and the Supreme
Court. The general courts handle criminal cases and civil disputes between
individuals. Two special courts deal with civil disputes. The Labour Court hears
industrial relations disputes, i.e. disputes concerning the relationship between an
employer and an employee, and the Market Court hears disputes involving
competition law and marketing.
Certain district courts deal with particular types o f civil cases. O f Sweden's district
courts, 25 are also land courts. These courts deal with cases involving expropriation
and land parcelling. Cases covered by the Environmental Code are dealt with by five
district courts, which are also environmental courts. Disputes under maritime law are
heard by seven district courts, which are maritime law courts. There are special rules
for disputes under industrial and intellectual property law, especially patents, which
give Stockholm district court sole jurisdiction. Similar provisions apply to various
family law matters involving an international dimension.
In Vietnam, the courts can be divided into The People's Court, The Military
Tribunals and the other tribunals established by law59. The People's Court includes
the Supreme People's Court and local people's courts (district courts and province
court) which are orgnised under the teưitorial principle. The function o f people's
court is similar to Swedish general courts. There are not any special court in
Vietnam. Vietnamese law classify the cases60 and put them into each kind o f
"division courts" which belong to the Supreme Court and provincial courts. Not all
o f people's courts have jurisdictions over civil cases with foreign elements. There are
some provisions (for instance, Article 33, 34 o f the Code o f Civil Procedure 2004)
restrict the jurisdiction of district courts, so that these jurisdictions mainly belong to
provincial courts and the Supreme People's Court.

58 Although The Code o f Civil Procedure o f 2004 has som e provisions on stay an action in
proceedings, but this issue has not becam e a doctrine in Vietnam ese Private International Law. The

contents o f these provisions w ill be presented more particular in the next Chapter o f this thesis.
59 Under special circumstances, the National A ssem bly may d e c id e to set up a special tribunal.
60 The cases include criminal case, civil cases, com m ercial/ business cases, labor cases, and
administrative cases.

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2.2.2. The systems of legal framework on jurisdiction over civil
disputes containing foreign elements
It is a fact that there are two parts form the law systems o f jurisdiction over civil
disputes containing foreign elements in each Swedish and Vietnamese legislation. In
Sweden, these two parts are (1) EC/EFTA rules which have original in
Brussels/Lugano Convention and other International Conventions and (2) Swedish
internal law. In Vietnam, they are (1) the Judicial Assistance Agrements and (2)
Vietnamese internal law.

2.2.2.I. The process of development of legal framework on jurisdictional
rules in Sweden61
Sweden belongs to the continental law tradition, which is characterised by it
dépendance on statutory law. The legal codification began in the 13th century. The
problem o f the legal position o f foreigners and their property and affair was raised
early in Swedish history. It was alone in the first stages through the adoption of
special rules relating to foreigners (the law o f aliens) and later through the
application by national courts o f rules o f law o f foreign countries to matters closely
connected with the countries were created. In the midle o f the 15th century, the

principle o f teritoriality has been accepted in Sweden In the 16th and 17th centuries,
there were occasional expressions o f the idea that foreign law could ask for
admission and application. By the midle o f the 19th century, no doctrine o f the
conflict o f laws in the proper sence o f the world had been developed in Sweden,
although this came into being in the world at large. Since 1894, Sweden had
participated in the Conference on matters o f Private International Law which had
take place in the Hague62. Moreover, Sweden is also a party to conventions eletorated
by international organisations or upon their initiative, such as United Nations,
council o f Europe, general law o f Nordic (Inter - Nordic) system, ect. So that,
Swedish Private International Law has developed strongly in the 20th century. In fact,
Swedish law has been much influenced by law o f the European Community (EC) and
the European Union (EƯ). In the 1950s, Sweden preferred for neutrality reasons to
remain outside the customs union o f the original EC countries; instead it joined into
the looser network o f the European Free Trade Association (EFTA). During the
1960s, Sweden applied a number o f times for association to the EC but not for full
membership63. In 1994, Sweden entered into EU and became a EU Member State
from the 1st January 1995. According to principles established by the European
Court, Community law acquires direct effect in the Member Countries and takes
precedence over national law64. Therefore, Community law must be mentioned first
in a research o f Swedish Private International Law. As well as other EU Member
States, there are two main regimes governing the in personam jurisdiction o f the
61 See Hilding Eek, The Swedish C onflict o f law s, (Martinus N ijjhoff/The Hague/ 1965), p.9 &
continuing pages; H ugo Tiberg & Fredrik Sterzel, Swedish la w a survey, Par Crouhult ed.
^Juristforlaget, JF.AB, Stockholm, 1994), p. 37 and continuous pages.
The aim this Confference is to prepare for the negotiations concerning a world convention on
international jurisdiction and the recognition and enforcement o f foreign judgments in civil and
com m ercial matters).
63 Tiberg, Hugo & Fredrik Sterzel & Par Crouhult ed. Swedish la w a survey, (Juristforlaget, JF.AB,
Stockholm , 1994), p.40.
64 Ibid, p .4 1

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Swedish courts. The first, which has a European origin, is the Brussels regime (which
is derived from the Brussels Convention on jurisdiction and the Enforcement o f
Judgem ent in Civil and Commercial Matters)65. The second regime are the traditional
rules which apply in cases not regulated by the Brussels regime and/or the modified
version which allocates jurisdiction within the Kingdom o f Sweden66.
In the field o f civil and commercial matters, in 1968, original six Member States of
the EEC (Belgium, Germany, France, Italy, Luxembourg is the Netherlands) signed
the Brussels Convention on Jursdiction and the Enforcement in civil and commercial
m atters67. As the EC expanded procees, the new Member States acceded to the
Brussels Convention. In 1978, an accession o f Brussels Convention was signed by
the original Contracting States, Denmark, Ireland and the United Kingdom68. The
Greece accession Convention was concluded in 198269. A further amendments was
taken on the accession o f Spain and Portugal in 1989.70 Austria, Finland and Sweden
acceded to the Brussel Convention in 199671. This Convention has been o f greet
importance for legal practitioners from within, but also outside the European Union.
In 1988, the EC M ember States signed a parallel convention with the countries which
were then members of EFTA - the Lugano Convention on jurisdiction and the
enforcem ent in civil and commercial matters. With the main provisions were almost
identical to the Brussels Convention, it regulates the relationship between the EC
M em ber States and Iceland, Norway and Switzerland and Poland72.
The next developing step o f the Brussels regime was the replacement o f the Brussels
Convention by Council Regulation (EC) No 44/2001 o f 22 December 2000 on

jurisdiction and the recognition and enforcement o f judgments in civil and
commercial matters (hereinafter reffered as "Brussels I Regulation”)73. This
Regulation came into force on 1 March 2002 and based on the recommendations o f a
working party that was set up to consider reform o f the Brussels and Lugano
Conventions74. The jurisdictional rules o f the Brussels I Regulation, which are to a
large extent similar to the Lugano Convention, will serve as an illustration o f how the
international jurisdiction o f c court is determined75.

65 Brussels regim e includes: The 1968 Brussels Convention, The Brussels I and II Regulation, ect.
66 See C M V . Clarkson and Jonathan Hill, Jctffey on the C onflict o f Laws, 2nd ed. (Butter Worths Lexis
N ex is TM , 20 0 2 ), p.62 - 63.
67 It came into force in those States on 1st February 1973.
68 It cam e into force in those States on 1st N ovem ber 1986 for Denmark, on 1st January 1987 for
United Kingdom , on 1st June 1988 for Finland.
69 It came into force on 1st April 1989.
70 It came into force on 1st Feburary 1991 for Spain and on 1st July 1991 for Portugal.
71 The final version came into force on 1st Decem ber 1997 for Austria, on 1st April 1999 for Finland,
on 1st January 1999 for Sweden.
72 As Poland is today a EU Member State, it is the Brussels I Regulation and not Lugano Convention
that applies between Poland and the other Member States.
73 This name should be distinguihed with the Council Regulation (EC) N o 1347/2000 on jurisdiction
and enforcem ent judgm ent in matrimonial matters which called “Brussels II Regulation”.
74 The Lugano Convention w ill be amended with a view to bring into line with the Brussels I
Regulation - See CM V. Clarkson and Jonathan Hill, Jaffey on the Conflict o f L aw s, 2 nd ed. (Butter
Worths Lexis N exis TM , 2002), p.64.
75 Hans van Houtte, FCIArb. The la w o f International Trade, 2nd ed. (London Sweet & M axwell,
2002), p. 353

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