Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: A Proposal for Vietnam

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Walter Shelton
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1 RUKSUNIVERSITEIT GRONINGEN Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters: A Proposal for Vietnam Proefschrift ter verkrijging van het doctoraat in de Rechtsgeleerdheid aan de Rijksuniversiteit Groningen op gezag van de Rector Magnificus, dr. F. Zwarts, in het openbaar te verdedigen op donderdag 29 juni 2006 om 16:15 mir door Du Ngoc Bich geboren op 27 juli 1974 te Long Phu-Chau Doc-An Giang, Vietnam

2 Table of contents Acknowledgments Table of contents Abbreviations INTRODUCTTON CHAPTER1: VIETNAMESE LAW ON FOREIGN JUDGMENT RECOGNITION AND ENFORCEMENT 1.1. Introduction Introduction to the Vietnamese State's organs and legal system The national assembly The President ofthe State The executive bodies The court system The People's Procuracy Local governments Sources and Interpretation of law Overview of the developing process of legal assistance activities in Vietnam The period The period Sincel Treaties (bilateral legal assistance agreements) The scopeof matters thatcanbe recognised and enforced Recognition conditions Recognition and enforcement procedures Domcstic law on recognition and enforcement The scopeof matters thatcanbe recognised and enforced The principles that apply to recognition and enforcement Foreign civil judgments which will not be recognised and enforced in Vietnam under article The civil judgment has notyet taken legal effect under the provisions oflaw ofthe countries where the courts have rendered such judgments 26

3 The defendant or his representative was absentfrom the foreign court because they had not been duly summoned The casesfall under the exclusive jurisdiction of Vietnamese courts There has been a legally effective civil judgment in the same dispute, which has been made by a Vietnamese court or by another foreign court, whose judgment has been recognised in Vietnam or the case had been accepted and was being adjudicated in a Vietnamese court before it was accepted at the foreign court The time to enforce has expired according to the law of the foreign court or according to Vietnamese law Recognition and enforcement are contrary to fundamental principles of Vietnamese law Recognition and enforcement procedures Non- executionary judgments under treaties covered by 2004 CPC article 343 paragraph Non-executionary judgments Executionary judgments Recognition and enforcement of executionary judgments in practice Under Bilateral legal assistance agreements Non-bilateral legal assistance agreements Concluding remarks 41 CHAPTER 2: DUTCH LAW ON FOREIGN JUDGMENT RECOGNITION AND ENFORCEMENT Introduction Overview of the legal system General remarks on the matter of recognition and enforcement of foreign judgments in the Netherlands Legislation "Case law" development "Prins Hendrik" case The New York divorce case The Für Coat case and subsequent cases The Esmil/Enka case The conditions for recognition and enforcement of foreign judgments Jurisdiction of foreign courts 55

4 Forum rei Forum solutionis contractus Forum of economically weaker party The forum chosen by the parties Voluntary appearance Forum rei sitae Jurisdiction on branch, agency and other establishment Forum delicti Forum connextatis Forum arresti Public policy Substantive public policy Fraud Reasoning Conflicting judgments Procedural public policy The right to be duly summoned The right to be heard by an impartial court Finality Conchiding remarks 67 m CHAPTER 3: AUSTRALIAN LAW ON FOREIGN JUDGMENT RECOGNITION AND ENFORCEMENT Introduction Legal system Federal system The State and the relationship between the Commonwealth and State power The court system Legislating Important features of foreign judgment recognition and enforcement in Australia Treaties Domesticlaw Recognition and enforcement of foreign judgments atcommon law Conditions for recognising and enforcing foreign judgments Competent jurisdiction Finality and conclusiveness 89

5 rv The identity ofthe parties A judgment must be for a definite sum to be enforceable The effectofa foreign judgment Conclusive effectofa foreign judgment Effectofforeign judgments in enforcement proceedings Effect of foreign judgments by way ofestoppel Effect ofa foreign judgment when the court lacked internal competence Defences Fraud Breach ofnatural or substantialjustice Public policy Penal or revenue judgments The foreign court refused to apply the appropriate law A prior judgment within theforum between the same parties and concerning the same issue or issues Recognition and enforcement of foreign judgments under legislation (the 1991 Foreign Judgments Act) The principle of the Act' s application Scopeof matters applied Registration conditions Grounds for setting aside a registered judgment International jurisdiction Naturaljustice Fraud Public policy Prior judgment Procedures for registration and enforcement and the effect of registration Competent court Application for registration Notice of registration Effect of registered judgments Recognition of the conclusiveness of foreign judgments Advantages and disadvantages brought by the current common law and legislation regimes Concluding remarks 128

6 CHAPTER 4: THE HAGUE PROJECT ON JURISDICTION AND FOREIGN JUDGMENTS IN CIVBL AND COMMERCIAL MATTERS Introduction The Hague Conference on Private International Law The Hague projecton judgments The failure of the 1999 draft - and the coming into being of a new Convention on Choice of Court Agreements The preliminary draft Convention on jurisdiction and foreign judgments in civil and commercial matters The scope of "civil and commercial matters" Jurisdiction 141 The White list (the Green list) General ground oj'jurisdiction: defendant's forum Choice of court Appearance by the defendant Contracts Contracts concluded by consumers Individual contracts of employment Branches and regulär commercial activity Toris or delicts Exclusivejurisdiction Multiple defendants Counter Claims Thirdparty Claims 158 The block list Prohibited grounds of jurisdiction 159 The grey list jurisdiction under national law Recognition and enforcement Definition of judgment Conditions for recognition or enforcement Verification of jurisdiction Grounds for refusal of recognition or enforcement lis alibi pendens Inconsistentjudgments Incompatibility with fundamental principles ofprocedure Lack of sufficient notice 170

7 VI Fraud Public policy Documents required Damages Severability Settlements The Hague Convention on Choice of Court Agreements Scope of civil and commercial matters Exclusive choice of court agreements Jurisdiction ofthe chosen court Obligation of a court not chosen Recognition and enforcement Remsalof recognition or enforcement Damages Settlements Documents required and procedure Severability Concluding remarks 186 CHAPTER 5: COMPARISONS AND CONCLUSIONS Introduction Why should Vietnam recognise and enforce foreign judgments? Theoretical explanations Comity Reciprocity Vestedrights Obligation Practical interest explanations Interest explanations for recognition and enforcement of foreign judgments Interest explanations against recognition and enforcement of foreign judgments Is the prindple of reciprocity necessary? Can tlie current law be applied to non-treaty judgments? The procedure for non-recognition of non-executionary judgments The procedure for recognition and enforcement of executionary judgments What are the changes? 205

8 VII Scope of application of the future legislation The format ofthe future legislation Jurisdiction of the foreign court Forum ofthe defendant Choice of court Voluntary appearance by the defendant Contracts Branch, agency, or other establishment Torts or delicts Immovableproperty Counter-claims Multiple defendants Thirdparty Claims The matter ofprotective jurisdiction (contracts concluded by consumers and individual contracts ofemployment) The priority sequence ofthe accepted grounds of jurisdiction The matter ofverification of jurisdiction of the original court Finality Fundamental principlesofprocedural law The right to be duly notified The right to be heard by an impartial court Public policy Fraud in connection with a matter of procedure lls alibi pendens and conflict judgments Damages Concluding remarks 240 TEXT OF PROPOSAL 242 ANNEX I- ACCEPTED GROUNDS OF JURISDICTION 243 ANNEX H- AUSTRALIAN FOREIGN JUDGMENTS REGULATION SUMMARY 251 SAMENVATTING(SUMMARYINDUTCH) 259 BD3LIOGRAPHY 269

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