To: The Supreme People's Court

Re: Response to Official Letter No. 381/TANDTC-PC from the Supreme People's Court requesting comments on the Draft Law on Specialized Courts at the International Financial Center (hereinafter referred to as the Draft), the Vietnam Chamber of Commerce and Industry (VCCI) submits the following comments:

1. Application of Law (Article 4)

– Law to Resolve Disputes

Clause 2, Point b, Article 4 of the Draft offers two options regarding the application of law to resolve disputes at the Specialized Court:

• Option 1: The parties are entitled to agree on the application of foreign law, foreign case law, or international commercial custom to resolve disputes.

• Option 2: The parties are entitled to agree on the application of the common law system to resolve disputes.

Option 1 is reasonable because: the scope of applicable law is quite broad, covering many different legal systems, and is not limited to the common law system as in Option 2. This reflects the parties' freedom to contract and is consistent with the diverse nature of transactions actually conducted by the parties.

Recommendation: Use Option 1.

– Applicable Law in Case of Conflict with Fundamental Principles of Vietnamese Law

Clause 5, Article 4 of the Draft stipulates: "Foreign law, foreign case law, or international commercial custom shall not be applied if the consequences of such application would be contrary to the fundamental principles of Vietnamese law." This provision is unclear; in such a case, which country's law will be applied?

Recommendation: Supplement provisions on this matter to ensure ease in determining the applicable law.

2. Judges of the Specialized Court (Article 8)

Article 8 of the Draft offers two options:

• Option 1: Judges are Vietnamese citizens and foreigners.

• Option 2: Judges are Vietnamese citizens.

Recommendation: Choose Option 2, for the following reasons:

• The Specialized Court at the International Financial Center is an organization of the People's Court (Clause 1, Article 4 of the Amended Law on Organization of People's Courts 2025). The People's Court is a judicial body, exercising the State's judicial power for adjudication. Therefore, appointing foreigners as judges seems inconsistent with the nature of the People's Court (which represents the Vietnamese people in exercising judicial power).

• One of the key objectives when appointing foreign judges to the Specialized Court is to enhance the quality of the judiciary. However, currently, many Vietnamese experts living and working in Vietnam or abroad can meet the conditions for professional capacity, have an understanding of economics, business investment, and possess good foreign language skills (English). If a flexible recruitment and appointment mechanism is established, this Vietnamese human resource pool can fundamentally meet the required conditions for appointment as judges at the Specialized Court.

• Even if foreigners are selected as judges at the Specialized Court, it is difficult to guarantee that they can fully understand all domestic or foreign legal issues related to commerce and business investment. To address this, international courts or international arbitration often use a mechanism to consult experts in the corresponding fields to enhance the quality of adjudication. Having an Expert Council will help increase accuracy and efficiency in adjudication and create a flexible mechanism for controlling professional quality. This solution is also applied by many countries to balance the high professional requirements with the principle of national rule of law. Therefore, if a mechanism for consulting experts before adjudication is established, Vietnamese judges can entirely meet the requirements for capacity and professional quality. This is also a crucial driving force for us to accelerate the training and selection of high-quality judges, particularly in the field of international finance and commerce.

3. Jurisdiction of the Specialized Court (Article 12)

Article 12 of the Draft offers two options regarding the jurisdiction of the Specialized Court:

• Option 1:

  • a) Disputes and requests regarding investment and business between members of the International Financial Center (IFC) themselves or between IFC members and other agencies, organizations, or individuals;

  • b) Requests related to foreign courts, arbitration resolving disputes between IFC members themselves or between IFC members and other agencies, organizations, or individuals;

  • c) Other disputes and requests related to activities at the International Financial Center where at least one party is an IFC member, as stipulated by the Supreme People's Court.

• Option 2:

  • a) Disputes and requests regarding investment and business between IFC members themselves or between IFC members and other agencies, organizations, or individuals;

  • b) Disputes between an IFC member and the IFC Executive Agency, Supervisory Agency, or Vietnamese State administrative agencies;

  • c) Labor disputes and requests between an employer who is an IFC member and an employee;

  • d) Requests related to foreign courts, arbitration resolving disputes between IFC members themselves or between IFC members and other agencies, organizations, or individuals;

  • đ) Other disputes and requests related to activities at the International Financial Center where at least one party is an IFC member, as stipulated by the Supreme People's Court.

Option 1 is reasonable and feasible in the current context, as the Specialized Court of the Financial Center is newly established, and these are institutions that have never existed in Vietnam before and are very new. However, when choosing Option 1, we request consideration of the provision on the Specialized Court's jurisdiction in point b: "Requests related to foreign courts, arbitration resolving disputes between IFC members themselves or between IFC members and other agencies, organizations, or individuals."

This provision relates to the Specialized Court's jurisdiction over Arbitration. In international arbitration, parties are free to choose the seat of arbitration, and the choice of the arbitral seat determines the national court with jurisdiction over that arbitration procedure. The provision in Clause 1, Point b of Option 1 grants the Specialized Court power similar to that of the court at the arbitral seat. This will lead to a conflict if the parties agree to arbitration but do not choose the arbitral seat as Vietnam. This means that in such a case, jurisdiction would belong both to the Specialized Court (as per Clause 1, Point b) and to the court at the location chosen by the parties (according to the principle of arbitration jurisdiction).

To avoid this conflict, Recommendation: Adjust the provision to read: "Requests related to foreign courts, or arbitration where the parties have chosen Vietnam as the arbitral seat to resolve disputes between IFC members themselves or between IFC members and other agencies, organizations, or individuals."

4. Spoken and Written Language Used before the Specialized Court (Article 13)

Article 13 of the Draft offers two options:

• Option 1: The spoken and written language used before the Specialized Court is English or English accompanied by a Vietnamese translation.

• Option 2: The spoken and written language used before the Specialized Court is English, except for cases specified in Clause 2 of this Article; if one of the parties requests it, it shall be accompanied by a Vietnamese translation.

Rigidly specifying English as the language used before the court in Article 13 of the Draft seems inflexible. The parties may agree on the language and writing used in the transaction, which aligns with the principle of party autonomy in transactions. To ensure the parties' right to choose in a dispute, Recommendation: Allow the parties freedom to choose the language of litigation that they deem appropriate (they may choose English, Vietnamese, or a bilingual English-Vietnamese format).

5. Composition of the First and Appellate Instance Trial Panels (Article 14)

Article 14 of the Draft offers two options regarding the participation of the Procuracy in supervision activities:

• Option 1: No provision for supervision of law observance by the Procuracy.

• Option 2: Provision for the Procuracy to participate in supervision activities.

Recommendation: The provision following Option 1 is reasonable, as it is consistent with the model of courts within International Financial Centers in countries around the world.

6. Court Fees, Charges, and Procedural Costs at the Specialized Court (Article 21)

Article 21 of the Draft offers two options regarding court fees, charges, and procedural costs at the Specialized Court. Option 1 does not specify the amounts but empowers the Supreme People's Court to stipulate them; Option 2 specifies the exact rates and ratios of court fees and charges.

Both current options have limitations and do not truly reflect the special nature of complex disputes in international commercial and investment markets, nor do they fully address the issue of transparency and predictability of procedural costs—a crucial factor in the international legal environment.

Recommendation: Develop a clear, publicly available, and regularly updated schedule of procedural fees, referencing the model used by the VIAC (Vietnam International Arbitration Centre). The fee schedule must take into account the complexity of international investment-financial disputes while reflecting the actual costs to avoid fees being too low, which would affect the quality of judicial services.

The provision could be worded as follows:

“Court fees and charges shall be determined according to the fee schedule issued by the Supreme People's Court and published on the Financial Center's Portal. These fees must accurately reflect the reasonable costs to ensure the quality of adjudication.”

These are some comments from the Vietnam Chamber of Commerce and Industry on the Draft Law on Specialized Courts at the International Financial Center. We hope that the distinguished Agency will consider them for amendment and completion.

Thank you sincerely for your cooperation.