Exclusive jurisdiction of courts over immovable property: local requirements, rights in rem, or international harmonization

Abstract: The failure to thoroughly explain the motivations behind legal rules is one reason that creates difficulties in applying these norms. Therefore, this commentary will seek to interpret the exclusive jurisdiction of the forum rei sitae of real property. Given that this rule exists generally in many jurisdictions around the world, this commentary conducts a comparative study aimed at extracting the essence and motivations of exclusive jurisdiction. Against that ground, the commentary concludes that exclusive jurisdiction does not extend to in personam rights arising from real property. If resolving disputes over ownership, this commentary recommends that arbitral tribunal should not award the title directly, but merely order one party to take the necessary measures to transfer the title for the entitled party.

Keywords: Exclusive jurisdiction, Vietnam courts, real property, arbitration, uniform interpretation.

I. Introduction

Freedom of business is a constitutional right[1] of a fundamental nature, serving as a foundation for the market economy. The freedom to agree on a forum for dispute resolution, which helps make business activities more stable, predictable, and less risky, is regarded as a manifestation of the freedom of business. However, this freedom of agreement is constrained by the exclusive jurisdiction of Vietnamese courts, particularly with respect to immovable property, an important and common object of business activities.

The interaction among the relevant legal rules remains unclear, especially as to what constitutes “rights in immovable property”, thereby giving rise to various debates regarding the scope of exclusive jurisdiction. Nevertheless, this is not the main focus of this article. The principal issue that this article seeks to address is another, equally noteworthy matter: the absence of a reasoned justification for why exclusive jurisdiction is prescribed.

Explaining the rationale underlying a legal rule is of critical importance. A constitutional right such as the freedom of business may only be restricted “for reasons of national defense, national security, social order and safety, social ethics, or public health”.[5] If no persuasive justification can be provided for restricting the freedom to choose a forum, exclusive jurisdiction lacks normative validity. This article aims to elucidate that issue.

Viet Nam is a country with a highly distinctive land tenure regime.[6] Accordingly, whenever there is a provision restricting the freedom of agreement in matters related to land, it is reasonable to assume that such a provision originates from Viet Nam’s legal and institutional framework. It is not without justification to argue that the subjection of immovable property to the special jurisdiction of Vietnamese courts, as provided for in the Civil Procedure Code, is a product of Viet Nam’s land regime with its pronounced particularities.

However, this article seeks to present a different perspective. The exclusive jurisdiction of the court of the place where the immovable property is located is not a distinctive feature of the Vietnamese legal system; rather, it exists in many jurisdictions around the world. Moreover, there is an observable trend among states toward abolishing, narrowing, or interpreting narrowly this concept, as will be specifically demonstrated in the following sections.

Renowned arbitrator Gary Born also acknowledges that many countries around the world do not recognize arbitration in “at least some disputes relating to” immovable property.[7]

This article conducts a comparative study of various legal systems with respect to the rationale underlying the exclusive jurisdiction of the court where the immovable property is located, thereby drawing out the most appropriate approach for Viet Nam. This indirect approach is more effective, as directly identifying the rationale for exclusive jurisdiction under Vietnamese law remains highly challenging due to the genuine scarcity of explanatory materials and relevant scholarly studies concerning this rule.

II. Anglo-American Law: Ensuring international comity

2.1. Common law jurisdiction: local actions and transitory actions

English law is among the legal systems most conducive to commercial arbitration and party autonomy[8]. Nevertheless, even such a legal system imposes limits on freedom of agreement in matters relating to land and immovable property.

Within the English legal system, there exists a long-standing tradition of classifying causes of action. Two categories are distinguished: local actions and transitory actions.

The Canadian Encyclopedic Digest explains that a local action is “an action in which the facts upon which the plaintiff’s argument is based have a necessary connection with a particular place”, whereas a transitory action is “an action in which the facts upon which the plaintiff’s argument is based do not necessarily have a legal connection with any particular place”.[9]

Local actions have “a close connection with a specific locality, and therefore must be adjudicated by the court of that locality”, whereas transitory actions may be adjudicated anywhere.[10]

With respect to immovable property, the House of Lords, in the Mozambique case[11], held that English courts lack jurisdiction to adjudicate local actions concerning foreign immovable property. This highest judicial body defined three categories of local actions as follows:

First, actions for the determination of title to immovable property situated outside England and Wales; second, actions for the determination of the right to possession of such immovable property; and third, actions for damages for trespass to such immovable property.[12]

The exclusive jurisdiction of the court of the place where the immovable property is located, in the context of English law, is intended to ensure international comity. If English courts were to exercise jurisdiction over land disputes located in another country, this would be regarded as conduct that “breaks the comity of national consent”.[13] Adjudicating such a dispute would be tantamount to “pronouncing upon the acts of a foreign sovereign”.[14] At the same time, in characterizing the dispute in Mozambique as a local action, the court was considering the matter in terms of relations between states.[15]

The Mozambique rule has been subject to criticism on the ground that it restricts the plaintiff’s access to justice and the parties’ freedom of agreement. In particular, exclusive jurisdiction over claims for damages arising from trespass to immovable property has been considered unjustified, in contrast to the first two grounds.[16]

Subsequently, the Parliament of the United Kingdom narrowed the Mozambique rule. The Civil Jurisdiction and Judgments Act 1982 provides that: “The jurisdiction of the courts of England and Wales or of Northern Ireland in proceedings for trespass to land or other torts affecting immovable property shall apply even where the immovable property is situated outside that part of the United Kingdom, unless the proceedings are principally concerned with the determination of title to, or the right to possession of, that immovable property”.[17]

In other words, the third basis of the Mozambique rule has been abolished, except where the proceedings are “principally concerned” with the first or the second basis.

In the United States, this rule was likewise inherited from English law, beginning with the case of Livingston v. Jefferson.[18] In that case, Thomas Jefferson, in his capacity as President of the United States, ordered an entry onto land alleged to belong to the plaintiff in the Orleans Territory and seized property located on that land. After leaving office, Jefferson was sued by the plaintiff before the Federal Court of Virginia, situated in Jefferson’s home state. The court declined to hear the dispute on the ground that trespass to immovable property constituted a local action and therefore fell within the jurisdiction of the courts of Orleans.[19]

In an effort to abolish the Jefferson rule entirely at the federal level, the United States Congress enacted a statute in 2011[20] providing that “venue in civil actions shall be determined without regard to whether the action is local or transitory in nature”.[21]

Despite the clarity of the statutory wording, many courts have continued to uphold the Jefferson rule, reasoning that the exclusive jurisdiction of the court of the place where the immovable property is located concerns subject-matter jurisdiction, rather than territorial jurisdiction (venue).[22]

In summary, the exclusive jurisdiction of the court of the place where the immovable property is located is a long-standing common law rule aimed at reconciling relations among states; however, states are increasingly tending to abolish or narrow the scope of this concept in order to enhance the effectiveness of judicial systems.

2.2. Equitable jurisdiction: the requirement of contractual performance

Nevertheless, the English have been notably creative in addressing legal difficulties. Where the parties have agreed to submit disputes to the English courts, but the claim is a local action falling within the exclusive jurisdiction of a foreign forum, the equitable jurisdiction of the English courts may operate as a factor capable of altering the nature of the issue.

By way of brief background, in the medieval period, the common law became increasingly harsh and rigid; equity was therefore developed to remedy the shortcomings of the common law, grounded in conscience.[23] The Court of Chancery was responsible for the application of equity in adjudication. Following the Judicature Acts 1873 and 1875, the Court of Chancery and the common law courts were merged into the High Court, which was vested with jurisdiction to administer both common law and equity.[24]

Consider the following situation: two businesspersons agree, in full trust and good faith, to submit all future disputes concerning ownership of an immovable property (their joint business asset) located in New York to the English High Court; however, when a dispute arises, one party invokes the lack of jurisdiction of the English courts on the ground that the claim constitutes a local action falling within the exclusive jurisdiction of the courts of New York. Such a result would be inequitable, as one party relied on the other party’s commitment in entering into the business relationship.

For actions whose subject matter concerns title to, or the right to possession of, foreign immovable property, English courts lack jurisdiction under the common law; however, the equitable jurisdiction of the English courts may remedy the injustice caused by the common law.

Nevertheless, equitable jurisdiction cannot create or recognize title. If it were otherwise, the systems of title generated by the common law and by equity would conflict with each other, resulting in the absence of a unified legal system. Accordingly, equitable jurisdiction operates only in personam, rather than in rem.[25]

The solution adopted is distinctive. Instead of adjudicating directly upon foreign immovable property, the English court will order specific performance against the defendant. If the claimant succeeds, the defendant will be required to take all necessary measures to transfer title to the other party. Because the object of the judgment is the company or natural person, rather than the immovable property itself, the location of the immovable property - whether within or outside the country - ceases to be decisive.[26]

In other words, the English court exercises no jurisdiction over the immovable property as such; the transfer of title depends solely on the defendant’s compliance with the judgment. If the defendant fails to comply, he or she may be fined or imprisoned for contempt of court, but the English court has no means of enforcing the judgment abroad by itself.[27]

This mode of reasoning was affirmed in Commissioners of Inland Revenue v G Angus & Co:

A decree of specific performance does not transfer title to the purchaser. This becomes clear when one considers the jurisdiction of the court to order specific performance of a contract for the sale of land situated abroad. Since Penn v Lord Baltimore, the Court of Chancery has accepted such jurisdiction. Why so? Because the decree neither affects nor purports to affect the property itself; it operates only in personam, compelling the vendor to take whatever steps may be necessary, whether domestically or abroad, to convey title to the purchaser.[28]

This principle was established by Penn v Lord Baltimore, a boundary dispute between Lord Baltimore, the proprietor of Maryland, and William Penn, the proprietor of Pennsylvania. These two territories later became states of the United States. A territorial boundary dispute of this nature would fall outside the jurisdiction of the English courts, as Lord Hardwicke famously observed, being “worthy the judicature of a Roman senate rather than of a single judge”.[29]

However, the parties had entered into an agreement in 1732 concerning the boundary between the two territories. That agreement altered the legal approach to the issue. In such circumstances, the claimant could seek specific performance of the contract, which did not directly affect the territorial boundary itself, but merely bound the defendant personally to perform the agreement.[30]

In sum, equitable jurisdiction has overcome the limitations of the local action rule, rendering agreements on the choice of court outside the state where the immovable property is situated effective, even though the court cannot directly affect the immovable property in dispute.

2.3. Arbitral jurisdiction: the English Arbitration Act

English arbitration lacks the power to issue orders compelling land registration authorities to act,[31] whereas registration is a crucial procedure for the establishment of title. Accordingly, the question arises as to whether English arbitration may rely on specific performance in order to enforce an award.

Professor Clyde Croft comments that arbitral tribunals possess powers analogous to the equitable jurisdiction of courts, including the power to order specific performance.[32]

Nevertheless, the English Arbitration Act provides that arbitral tribunals have the same powers as the English courts with respect to all claims for specific performance, “other than a contract relating to land”.[33] Does this mean that equitable jurisdiction in matters relating to land belongs exclusively to the courts?

This question was comprehensively addressed by the High Court in Telia Sonera v Hilcourt.[34] The English court adopted a legislative history approach to ascertain the rationale underlying this provision. Justice Etherton pointed out that the land-related exception in the Arbitration Act 1996 originated from its predecessors of 1934[35] and 1950.[36]

Justice Etherton reasoned that the Arbitration Act 1934 should be interpreted in a manner consistent with the contemporaneous legal framework, including the Supreme Court of Judicature (Consolidation) Act 1925. The 1925 Act provided that the Chancery Division of the High Court was always assigned “claims for specific performance between purchasers and vendors of immovable property, including contracts for leases”.[37]

Although this provision merely concerned the allocation of work among the divisions of the High Court, rather than establishing the exclusive jurisdiction of the Chancery Division, Justice Etherton considered that “it appears” that the exclusion of land-related contracts in the Arbitration Act 1934 corresponded to the allocation of land cases to the Chancery Division.[38] In other words, claims for specific performance relating to land fall within the equitable jurisdiction of the High Court, rather than that of arbitral tribunals.

Nevertheless, English law remains a jurisdiction that places great value on arbitration, and it is therefore unsurprising that Justice Etherton construed the land exception narrowly and strictly. He reasoned that the concept of a “contract relating to land” could not be interpreted literally so as to encompass “any contract which has some connection with land, whether significant or not”; rather, the phrase “must be confined in scope so as to give it a sensible meaning”.[39]

In that case, Telia had been granted a lease of a parcel of land, in return for which it was required to demolish and reconstruct a building on the land. Because Telia failed to carry out the construction work as agreed, Hilcourt commenced arbitration proceedings seeking specific performance.[40]

Justice Etherton agreed with the arbitrator’s reasoning that, in assessing a claim for specific performance, it was unnecessary to examine the contract as a whole in order to determine whether it constituted a “contract relating to land”; instead, attention should be directed to the specific obligation whose performance was sought. He further added that a “contract relating to land” must involve the transfer or determination of title to land. Accordingly, an order compelling the construction of a building did not fall within the scope of the exclusion from arbitral jurisdiction.[41]

In practice, this statutory limitation is unlikely to cause significant difficulty for the parties. They remain free to agree to confer broader powers on the arbitral tribunal than those provided by the default rule under English law,[42] for example by selecting the Arbitration Rules of the London Court of International Arbitration (LCIA), which empower tribunals to order specific performance “including the arbitration agreement and any contract relating to land”.[43]

Moreover, where the immovable property is situated within the territory of England, the courts may assist in the enforcement of arbitral awards by deploying the full range of judicial powers, in which case the arbitral tribunal’s lack of authority to issue orders directly affecting immovable property becomes immaterial.[44]

2.4. Commentary

It must be acknowledged that English judges have demonstrated considerable flexibility in their reasoning, devising effective solutions without undermining long-standing principles. When confronted with local actions concerning foreign immovable property, which are constrained by an entrenched rule, they chose to reframe the issue rather than to dismantle the rule itself.

This provides a lesson that arbitrators may follow in the Vietnamese context. Instead of issuing awards directly concerning immovable property in Viet Nam, arbitral tribunals (both domestic and foreign) may require a party to take all necessary measures to transfer the immovable property in accordance with the contract. In this way, the object of the award is no longer the immovable property itself, but an ordinary civil subject.

The Vietnamese legal system is even more accommodating than English law in this respect, as it treats the performance of obligations or contracts (specific performance) as a substantive legal remedy,[45] which may therefore be applied by courts or arbitral tribunals alike. This differs from English law, which regards specific performance as a matter of equitable jurisdiction and imposes certain limitations on arbitration.

This article argues that, if the most important objective is to ensure international comity, the legislature should exclude only the jurisdiction of courts and arbitral tribunals seated outside the state where the immovable property is located. Arbitral tribunals seated in the state where the immovable property is situated (for example, Vietnamese arbitration resolving disputes concerning immovable property in Viet Nam) do not affect international comity at all.

The concept of local actions in English law has been significantly narrowed since 1982, now encompassing only title to and the right to possession of immovable property. Vietnamese courts should adopt a similar approach by interpreting the concept of “rights in immovable property” narrowly, in order to promote freedom of agreement.

The complete abolition of the local action rule by the United States Congress in 2011 represents a bold step toward global freedom of business. This article further contends that such a choice reflects the trend of international integration, under which no commercial matter is any longer regarded as “local”, but all are situated within an increasingly interdependent global economy.

III. Civil Law and the European Union: Effects opposable to third parties

3.1. Rights in rem and rights in personam

Within the Civil Law tradition and the European Union (EU), the distinction between rights in rem and rights in personam plays a pivotal role in legal reasoning as a whole. This distinction is also reflected in the use of these concepts to delimit the exclusive jurisdiction of the courts of the state where immovable property is located (forum rei sitae).

In explaining the difference between rights in rem and rights in personam in the context of exclusive jurisdiction, Professor Peter Schlosser observes that:

The most important legal consequence flowing from the nature of a right in rem lies in the fact that the holder of the right may require any person who does not have a higher-ranking right to surrender the object of that right.[46]

Pursuant to Regulation (EU) No 1215/2012, the courts of the Member State in which the immovable property is situated shall have exclusive jurisdiction “in proceedings which have as their object rights in rem in immovable property”.[47] The origin of this rule can be traced back to the Brussels Convention of 1968, the vast majority of whose contracting parties were continental European states adhering to the Civil Law tradition.[48]

Where a judicial body declares that a person must pay damages for breach of contract, that decision binds only the parties to the legal relationship concerned. This is characteristic of rights in personam, which are inherently internal in nature and govern only the relationship between the right-holder and the obligor (inter partes).[49] Accordingly, disputes concerning rights in personam may, in principle, be resolved by any arbitral tribunal or court chosen by the parties, unless such choice conflicts with public policy considerations, such as the protection of consumers, employees, or matters of marriage and family.

By contrast, where a judicial body recognises a person’s ownership of a house and that decision is fully enforced, the decision binds not only the parties to the dispute but all other persons as well. Effect opposable to the whole world (erga omnes) is a defining characteristic of rights in rem, of which ownership is the most typical example.[50]

The consequence is that agreements on choice of court give rise to serious difficulties: even if such agreements are concluded only by specific parties, a judgment declaring who holds ownership will, once fully enforced, affect all third parties. This result is unreasonable.

Thus, the second theory explaining exclusive jurisdiction is grounded in a very basic principle: an agreement on the choice of a judicial body binds only the parties to it and cannot produce effects against third parties (privity of contract).[51]

Accordingly, jurisdiction over disputes concerning rights in rem in immovable property belongs exclusively to a single court designated by law and lies outside the parties’ freedom of choice.[52]

One category of rights in rem giving rise to exclusive jurisdiction is co-ownership, as recognised in the case of Ellmes Property Services Limited (EPS) v SP. In this case, the parties co-owned a building; within that building, EPS owned an apartment intended for residential use. However, the company regularly rented the apartment to holidaymakers. SP therefore sought to prevent EPS from using the apartment for “tourist business purposes”.

This claim fell within the exclusive jurisdiction of the Austrian courts.[53] The effect opposable to third parties also extended to the residential-use purpose of the apartment. Under Austrian law, co-ownership confers protection against interference not only by other co-owners but also by third parties.[54] For example, SP could directly require holiday guests to vacate the apartment, rather than merely demanding that EPS ensure such outcome.

Another example is the right of pre-emption, which obliges the owner, when intending to sell to a third party, first to offer the property to the holder of the pre-emption right on the same terms as those agreed with the third party. In Weber v Weber, the right of pre-emption over immovable property under the German Civil Code was regarded as a right in rem. The case illustrates that a right of pre-emption over immovable property, once recorded in the land register, has effect against third parties who transact with the owner in breach of that right; the purchaser cannot be regarded as a bona fide third party.[55]

3.2. Contracts for the transfer of immovable property

One of the advantages of the Civil Law approach is that exclusive jurisdiction does not affect contracts for the transfer of immovable property. This is particularly true in the German Civil Law tradition, as well as in Austria and Switzerland, and in jurisdictions strongly influenced by this tradition, such as Japan and South Korea.

One of the fundamental principles of German Civil Law is the principle of separation (Trennungsprinzip), under which the contract for the transfer of property and the actual transfer of property constitute two legally independent juridical acts. A contract for the transfer of property merely creates an obligation on one party to transfer the property; it does not, by itself, bring about that legal result.[56] The mere agreement between two persons for the sale of a computer does not automatically transfer ownership of the computer from the seller to the buyer.

The significance of this distinction lies in the fact that a contract for the transfer of property produces effects only between the parties. The right-holder may require only the obligor to transfer the property and cannot assert any claim against a third party. Even as between the parties themselves, the right-holder is not yet regarded as the owner. By contrast, once the transfer has been effected in fact - through registration with the land registry (in the case of immovable property) or delivery of possession (in the case of movable property) - the right-holder becomes the owner, and the ownership has effect opposable against all third parties. Third parties are presumed to be aware of this status, as they may verify it at any time through the land registry (for immovable property) or ascertain it through possession (for movable property).[57]

Consequently, under the German Civil Law approach, a contract for the transfer of property gives rise only to rights in personam and does not create rights in rem. Only the actual transfer effects the creation of rights in rem in immovable property. Accordingly, a contract for the transfer of immovable property will not be regarded as falling within the exclusive jurisdiction of the courts of the State where the immovable property is situated.

The principle of separation is accepted by most jurisdictions following the German Civil Law tradition. By contrast, French Civil Law and jurisdictions influenced by it apply the principle of unity (Einheitsprinzip), according to which a contract for the transfer of property is, in itself, effective to bring about that transfer.[58] A contract for the sale of a computer simultaneously transfers ownership of that computer to the buyer, unless the parties agree otherwise.

However, this difference does not affect exclusive jurisdiction. Even where a contract for the transfer of property confers ownership status on the buyer, because immovable property is a special category of assets, such ownership exists only in the relationship between the contractual parties, while opposability against third parties still requires publicity through registration with the land registry.[59]

The issue should therefore be approached substantively. Rather than engaging in a formal analysis of whether the buyer has acquired ownership, it is sufficient to examine whether the rights arising from the contract are opposable against third parties. Even if the buyer holds ownership, which is classified as a right in rem, where the contract does not produce adverse effects on third parties, the court need not assert exclusive jurisdiction, since the purpose of such exclusive jurisdiction is precisely to protect third parties.

This perspective has been confirmed by the case law of the European Union.

In Richard Gaillard v Alaya Chekili, Mr. Gaillard and Mr. Chekili entered into a contract for the sale of two immovable properties and several other parcels of land located in France. When the buyer breached the payment obligation, Mr. Gaillard brought an action before the Brussels Court of First Instance in Belgium, seeking rescission of the contract and damages. The Court of First Instance declined jurisdiction on the ground that the subject matter of the contract concerned immovable property situated in France and therefore fell within the exclusive jurisdiction of the French courts. The claimant appealed to the Brussels Court of Appeal, which referred questions to the Court of Justice of the European Union (CJEU).[60]

The CJEU held that an action seeking rescission of a contract constitutes an action in personam rather than an action in rem.[61] The Court reasoned that the subject matter of the proceedings was “a personal right which the claimant derives from the contract concluded between the parties and which, consequently, may be relied upon only against the other party to the contract.” At the same time, the Court emphasized that the resulting judgment would have effect only vis-à-vis the party bound by the rescission decision, and not erga omnes.[62]

3.3. Narrow interpretation of exclusive jurisdiction

The practice of the Court of Justice of the European Union (ECJ) in applying and interpreting Regulation (EU) No. 1215/2012 and the Brussels Convention 1968 demonstrates a clear tendency whereby the Court interprets the concept of exclusive jurisdiction as narrowly as possible, in order to give maximum respect to the parties’ freedom of agreement or to afford claimants the widest possible range of options to access justice, thereby avoiding unnecessary costs that would arise if proceedings were confined to a single court vested with exclusive jurisdiction.

The case Webb v Webb addressed whether a trust falls within the scope of exclusive jurisdiction.[63] In this case, a father provided the funds to purchase an immovable property in France, but the property was registered in the name of his son. In the absence of proof that this constituted a gift, the registered holder would have legal title, while the person who provided the purchase funds would retain an equitable interest. Accordingly, a trust arising by operation of law (a resulting trust) would exist between the fund provider and the registered holder. The father requested the court to recognize the existence of such a trust. If recognized, the equitable interest held by the father would have effect against third parties.[64]

Although the ECJ acknowledged that the father’s ultimate objective in seeking recognition of the trust was to acquire ownership (a right in rem), it nevertheless held that, within the scope of the proceedings, the father merely sought a declaration that “the son held the apartment solely for the benefit of the father and, in that capacity, was obliged to prepare the necessary documents to transfer ownership to the father”, and that no claim was made against any third party. On that basis, the ECJ rejected the characterization of the action as falling within the exclusive jurisdiction of the French courts.[65]

In Schmidt v Schmidt, Mr. Schmidt made a gift of an immovable property to his daughter, Ms. Schmidt. The deed of gift was notarized and recorded in the land register on 14 November 2013. However, Mr. Schmidt had previously undergone a psychiatric assessment in May 2013, although he was only formally placed under guardianship on 17 November 2014. Acting in the name of Mr. Schmidt, his guardian brought an action seeking a declaration that the deed of gift was invalid on the ground that the transferor lacked legal capacity (the first claim). At the same time, Mr. Schmidt also sought the cancellation of the change of ownership recorded in the land register on the basis that the transaction was invalid (the second claim).[66]

With respect to the first claim, the matter was relatively straightforward, as the invalidity of the contract produces effects only inter partes and does not implicate exclusive jurisdiction. The second claim, however, posed greater difficulty, as the referring court itself expressly noted that the cancellation of the registration in the land register would have effect against third parties in cases where a third party acquired ownership during the course of the proceedings.[67]

Although characterizing the second claim as an action in rem concerning immovable property, the ECJ held that the first and second claims were closely connected, were brought against the same defendant, and could be joined and determined within a single set of proceedings. Accordingly, they could be adjudicated together by the court seised of the first claim, without the need to refer the matter to the courts of the State in which the immovable property was situated.[68] In other words, the European Union balanced (1) the interests of third parties against (2) the need for the dispute to be resolved expeditiously and conveniently, and concluded that the latter interest should prevail.

The foregoing case law reflects a clear trend toward a restrictive interpretation of the scope of exclusive jurisdiction. Even where the subject matter of the dispute is classified as a right in rem, various lines of reasoning - such as defining the scope of the proceedings or allowing the joinder of claims - may be employed to avoid the application of exclusive jurisdiction.

3.4. Relationship with commercial arbitration

The most notable advantage under EU law is that commercial arbitration is not affected by this issue. Exclusive jurisdiction, as well as other matters governed by Regulation (EU) No. 1215/2012, does not apply to arbitration; moreover, a court seised of a dispute subject to an arbitration agreement must decline or stay the proceedings in order to refer the parties to arbitration,[69] even where that court is located in the State in which the immovable property is situated.

To verify whether this approach also applies in civil-law jurisdictions outside the European Union, the case of the Russian Federation may be considered. This issue has been addressed clearly by the Constitutional Court of the Russian Federation.

In Judgment No. 10-П of 26 May 2011, the Constitutional Court of the Russian Federation examined the position of the Supreme Arbitrazh Court that disputes concerning immovable property are not arbitrable. The core issue of contention was that, where an arbitral award determines ownership of immovable property, the competent Russian state authority would be required to record such determination in the land register. In that event, the arbitral award would not only bind the parties, but would also “constitute a basis for other persons to carry out legal acts”.[70]

The Constitutional Court of the Russian Federation, however, did not agree with that view. The Court held that, if an arbitral award infringes the rights of a person who did not participate in the arbitral proceedings, that person has the right to apply for the setting aside of the award. Accordingly, third parties are protected against arbitral awards, which are based solely on the consent of the parties to the arbitration agreement.[71]

Thus, arbitral awards differ from court judgments in that the mechanism for setting aside arbitral awards allows third parties to protect their interests in cases where an arbitral award establishes a right in rem in favour of one of the disputing parties.

3.5. Commentary

Legislators have a clear rationale for establishing exclusive jurisdiction: to protect third parties; it is not an arbitrary decision. Although the freedom of contract is affected, the interests of third parties are evident, and therefore such a limitation is necessary.

Nevertheless, this does not significantly affect the freedom to choose the forum for dispute resolution, as most business activities are conducted under commercial contracts. Accordingly, disputes are generally contractual rather than disputes directly concerning property. Exclusive jurisdiction is limited to disputes concerning immovable property and does not apply to contracts for the transfer of immovable property.

Consequently, the concept of “rights in immovable property” under Vietnamese law can reasonably be understood as encompassing only rights in rem, as in other civil-law countries, because only rights in rem produce effects vis-à-vis third parties, which justifies the application of exclusive jurisdiction.

Whether exclusive jurisdiction applies to commercial arbitration under Vietnamese law remains unclear. Unlike EU law, the 2015 Civil Procedure Code of Vietnam contains no provision stating that exclusive jurisdiction does not apply to commercial arbitration.

A reasonable approach is for Vietnamese legal scholars to consider the approach of the Russian Federation. The 2011 judgment of the Constitutional Court of the Russian Federation balances the freedom to choose the forum with the rights of third parties. On one hand, the Constitutional Court allows arbitration to consider disputes over immovable property; on the other hand, it grants third parties the right to apply for setting aside an arbitral award if it affects their interests.

Even if third parties do not have the right to seek setting aside of a Vietnamese arbitral award,[86] the enforcement mechanism under Vietnamese law still ensures notice and the independent right to initiate proceedings for persons with relevant rights and obligations.[87]

Rather than immediately asserting that arbitration lacks jurisdiction, the Russian Constitutional Court permits commercial arbitration to resolve disputes cautiously, so as not to prejudice the interests of third parties. Based on this experience, Vietnamese arbitrators may clarify in their awards that the award shall have effect only between the parties and may prescribe appropriate remedies.

IV. Other doctrines

4.1. The most convenient forum

There are several other doctrines that offer explanations for exclusive jurisdiction. Professor Jenard proposed a well-known doctrine concerning the most convenient forum.

Professor Jenard argued that disputes related to immovable property require inspection, assessment, and appraisal on-site. Consequently, a foreign court would not have the ability to properly administer justice, as it lacks the convenient conditions to directly examine the property.[88]

Some European case law, such as Schmidt v Schmidt, also refers to this argument as a basis for the judgment.[89] Such reasoning would apply to both foreign courts and arbitral tribunals.

This article does not agree with Jenard’s doctrine. Each case has its own specific characteristics, and one court cannot be considered the most convenient for all cases. Determining which forum is most convenient should be viewed from the parties’ perspective. The forum that the parties deem most suitable may be chosen through an arbitration clause or a choice-of-court agreement.

While the advantage of a court located where the immovable property is situated may justify the general jurisdiction of that court to hear the case, it cannot create exclusive jurisdiction.

4.2. Protection of national interests

Land is always closely linked to territorial sovereignty. Territorial sovereignty is the foundation of every nation. Therefore, it is unsurprising that states consistently impose restrictions relating to immovable property.

Professor Audit explains that exclusive jurisdiction under the Brussels Convention 1968 is intended to protect the “public interest, and even the sovereignty, of the designated state.”[90]

The Hague Convention 2005, which grants parties the freedom to agree on a court, excludes disputes concerning rights in rem in immovable property from its scope of application.[91] Professors Dogauchi and Hartley, in the Explanatory Report on the Draft Hague Convention 2005 (a document consulted by states when adopting the instrument), provide a rationale as “the territorial sovereignty of the state where the immovable property is located.”[92]

This article assesses that the rules interpreted under this doctrine are not broader than the scope of exclusive jurisdiction under EU law and the civil law countries. Accordingly, exclusive jurisdiction under the two conventions applies only to rights in rem in immovable property and does not extend to rights in personam (which reflect internal relations between the parties and do not implicate national interests).

This doctrine may be considered part of the Doctrine of Effectiveness Against Third Parties, where national interests simultaneously constitute the interests of a third party that must be respected and protected.

4.3. "Substance" of the transaction

Finally, another perspective, which is an exception, belongs to Vietnamese courts. A judgment of the Seoul High Court (South Korea) was refused recognition and enforcement in Vietnam because the dispute fell within the exclusive jurisdiction of a Vietnamese court.

Notably, the subject of the contract was the entire share capital of a company. However, the court held that this was “in substance” a sale of immovable property, as the assets held by the company included numerous machinery and buildings.[93]

Although the use of a company as a “facade” is entirely possible, the principle of the separate legal personality between the owner and the company remains predominant, unless it is clearly demonstrated that the company sale transaction was used to conceal another underlying transaction causing harm to the interests of a third party or the public interest.

Furthermore, the primary remedy for disputes over shares or capital contributions is compensation for damages, which does not affect the immovable property itself.

Vietnamese courts have also not recognized the distinction between a contract transferring assets and the actual transfer in practice. In a dispute where the defendant was required to hand over an apartment and pay interest arising from a contract for the sale of an apartment under construction, the exclusive jurisdiction of the court where the immovable property is located was raised. While the People’s Court of Go Vap District considered this a contractual dispute not related to immovable property, the People’s Court of District 10 held that the subject of the dispute was immovable property. The Ho Chi Minh City People’s Court agreed with the latter view.[94]

It appears that Vietnamese courts consider the “substance” of the dispute to be the acquisition of ownership, rather than a right arising solely from a contract. Although this is a domestic dispute without foreign elements, the reasoning may also be applied to cases with international aspects.

V. Conclusion

The development of humanity has always been a process of tension between individual freedom and the interest in maintaining stability. The debate between freedom of contract and exclusive jurisdiction is a striking example of this dynamic.

There exist numerous theories explaining exclusive jurisdiction over disputes concerning immovable property. However, only two theories - the International Harmonization theory of Common Law and the erga omnes effect theory of Civil Law/EU - are considered reasonable and legitimate for limiting business freedom, according to this article.

Once the nature of exclusive jurisdiction is understood, determining its scope becomes significantly simpler. If the purpose of the rule is to protect the interests of third parties, then only rights in rem fall within the ambit of exclusive jurisdiction. If the rule aims to harmonize international relations, then only foreign courts and arbitral tribunals are affected, and only ownership and possessory rights are relevant.

Although the two theories may seem different, this article observes a gradual convergence toward a unified perspective. This was summarized by arbitrator Gary Born, who noted that national courts and arbitral tribunals generally accept the possibility of resolving claims related to immovable property by arbitration.[95]

Attention should also be paid to the skill and prudence of lawyers and judges in applying legal provisions. The application of equity can safeguard freedom of contract against a rule that is over half a millennium old and seemingly immutable. The distinction between a contract transferring immovable property and the actual transfer of immovable property facilitates business transactions.

REFERENCES

Research works

1. Bernard Audit, Arbitration and the Brussels Convention, Arbitration International, 9(I), 1 (1993).

2. Nadine J Lumley Barmania, Actions (Ontario) (§7), Canadian Encyclopedic Digest (Ontario) (4th ed, Thomson Reuters 2025).

3. Joost Blom, Star Wars Storm Troopers, the Next Episode: Lucasfilm in the United Kingdom Supreme Court, Intellectual Property Journal, vol. 24, 15 (2011).

4. Gᴀʀʏ B. Bᴏʀɴ, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Aʀʙɪᴛʀᴀᴛɪᴏɴ: Lᴀᴡ ᴀɴᴅ Pʀᴀᴄᴛɪᴄᴇ (3d ed. 2021).

5. Gᴀʀʏ B. Bᴏʀɴ, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Cᴏᴍᴍᴇʀᴄɪᴀʟ Aʀʙɪᴛʀᴀᴛɪᴏɴ (3d ed. 2021).

6. Edward Bragiel, "A funny thing happened on the way to the forum" - actionability in the United Kingdom of infringements of intellectual property committed abroad, Intellectual Property Quarterly, 2, 135-159 (1999).

7. Stavros Brekoulakis, The Historical Treatment of Arbitration under English Law and the Development of the Policy Favouring Arbitration, Oxford Journal of Legal Studies, Vol. 39, No. 1, 124–150 (2019).

8. Clyde Croft, The Advantages of Arbitration of Property Disputes - Some valuable insights from International Commercial Arbitration, Falcon Chambers (12-09-2025), https://www.falcon-chambers.com/publications/articles/the-advantages-of-arbitration-for-resolving-property-disputes

9. Wɪʟʟɪᴀᴍ Dᴀʏ ᴀɴᴅ Lᴏᴜɪsᴇ Mᴇʀʀᴇᴛᴛ (ᴇᴅs), Lᴀɴᴅᴍᴀʀᴋ Cᴀsᴇs ɪɴ Pʀɪᴠᴀᴛᴇ Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Lᴀᴡ (2023).

10.Dmitry Davydenko and Alexander Muranov, RUSSIA: Court upholds right to arbitrate real estate disputes, Global Arbitration Review (18/11/2025), https://globalarbitrationreview.com/article/russia-court-upholds-right-arbitrate-real-estate-disputes

11.Mᴀsᴀᴛᴏ Dᴏɢᴀᴜᴄʜɪ ᴀɴᴅ Tʀᴇᴠᴏʀ Hᴀʀᴛʟᴇʏ, Pʀᴇʟɪᴍɪɴᴀʀʏ Dʀᴀғᴛ Cᴏɴᴠᴇɴᴛɪᴏɴ ᴏɴ Exᴄʟᴜsɪᴠᴇ Cʜᴏɪᴄᴇ ᴏғ Cᴏᴜʀᴛ Aɢʀᴇᴇᴍᴇɴᴛs: Exᴘʟᴀɴᴀᴛᴏʀʏ Rᴇᴘᴏʀᴛ (2004).

12.Ronan E. Degnan, Livingston v. Jefferson- A Freestanding Footnote, Calif. L. Rev., 75, 115 (1987).

13.DO VAN DAI (ED.), CIVIL TRANSACTIONS CONCERNING IMMOVABLE PROPERTY (VOL. 2) (2ND ED., 2022).

14.P. Jenard, Report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, Official Journal of the European Communities, C59, 1 (1979).

15.Thomas Hoffmann, Aleksei Kelli and Age Värv, The Abstraction Principle: A Pillar of the Future Estonian Intellectual Property Law?, European Review of Private Law, 21(3), 823 (2013).

16.Nguyen Thi Huyen, The Regime of National Ownership of Land in Contemporary Viet Nam, Vietnam Social Sciences Journal, No. 3, 33 (2017).

17.A.K. Kuhn, Local and Transitory Actions in Private International Law, U. Pa. L. Rev., 66, 301 (1917).

18.Jesse W. Lilienthal, Privity of Contract, Harvard Law Review, Vol. 1, No. 5, 226 (1887).

19.Cʜᴀʀʟᴇs Mɪᴛᴄʜᴇʟʟ ᴀɴᴅ Pᴀᴜʟ Mɪᴛᴄʜᴇʟʟ, Lᴀɴᴅᴍᴀʀᴋ Cᴀsᴇs ɪɴ Eᴏ̨ᴜɪᴛʏ (2012).

20.Guy Martin, Actionability of Foreign Intellectual Property Rights in English Courts, World Intellectual Property Rights and Remedies, vol 3, § 56:2 (updated 2025).

21.Jeffrey L. Rensberger, Jefferson's Ghost: The Local Action Rule in Federal Courts, Cardozo L. Rev., 44, 2423 (2023).

22.Aʟғ Rᴏss ᴀɴᴅ Jᴀᴋᴏʙ ᴠ. H. Hᴏʟᴛᴇʀᴍᴀɴɴ (ᴇᴅ.), Oɴ Lᴀᴡ ᴀɴᴅ Jᴜsᴛɪᴄᴇ (2019).

23.Peter Schlosser, Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its Interpretation by the Court of Justice, Official Journal of the European Communities, C59, 71 (1979).

24.Paul L.C. Torremans, Star Wars rids us of subject matter jurisdiction: the Supreme Court does not like Kafka either when it comes to copyright, European Intellectual Property Review, 33(12), 813 (2011).

25.Gʀᴀʜᴀᴍ Vɪʀɢᴏ, Tʜᴇ Pʀɪɴᴄɪᴘʟᴇs ᴏғ Eᴏ̨ᴜɪᴛʏ & Tʀᴜsᴛs (5th ed 2023).

Legislation

1. Civil Code 2015, No. 91/2015/QH13, dated 24 November 2015.

2. Civil Procedure Code 2015, No. 92/2015/QH13, dated 25 November 2015.

3. Hague Convention on Choice of Court Agreements, 30 June 2005.

4. Brussels Convention 1968.

5. Constitution 2013, amended and supplemented 2025.

6. United States, United States Code.

7. United States, Federal Courts. Jurisdiction and Venue Clarification Act 2011.

8. LCIA Rules 2020.

9. Law on Land 2024, No. 31/2024/QH15, dated 18 January 2024.

10. Law on Housing 2023, No. 27/2023/QH15, dated 27 November 2023.

11.Law on Civil Judgment Enforcement 2008, No. 26/2008/QH12, dated 14 November 2008, amended and supplemented 2022.

12.Commercial Law 2005, No. 36/2005/QH11, dated 14 June 2005.

13.Commercial Arbitration Law 2010, No. 54/2010/QH12, dated 17 June 2010.

14.European Parliament and Council, Regulation No. 1215/2012 (Brussels Ia Regulation).

15.United Kingdom, Civil Jurisdiction and Judgments Act 1982.

16.United Kingdom, Supreme Court of Judicature (Consolidation) Act 1925.

17.United Kingdom, Arbitration Act 1934.

18.United Kingdom, Arbitration Act 1950.

19.United Kingdom, Arbitration Act 1996, amended and supplemented 2025.

Case Law and Judgements

1. British South Africa Co. v. Companhia de Mocambique [1893] A.C. 602.

2. Case C‑294/92 Webb v Webb [1994] ECR I‑1717.

3. Case C-417/15 Schmidt v Schmidt [2017] OJ C14/13.

4. Case C‑433/19 Ellmes Property Services Limited v SP [2019] OJ C 357.

5. Case C‑438/12 Irmengard Weber v Mechthilde Weber [2012] OJ C379/16.

6. Case C-518/99 Richard Gaillard v Alaya Chekili, Order of the Court (Sixth Chamber), 5 April 2001, [2001] ECR I-2771.

7. Commissioners of Inland Revenue v G Angus & Co (1889) 23 QBD 579.

8. Companhia de Moçambique v British South Africa Company [1892] 2 QB 358 (CA).

9. Livingston v. Jefferson, 15 F. Cas. 660, No. 8,411 (C.C.D.Va.1811).

10.Penn v Lord Baltimore (1750) 1 Ves Sen 444, 27 ER 1132.

11.Telia Sonera AB v Hilcourt (Docklands) Ltd (No 2) [2003] EWHC 3540 (Ch), [2003] ArbLR 42 (Etherton J, ChD, 4 July 2003).

12.Decision No. 28/2020/QDKDTM-PT, dated 29 June 2020, on the recognition and enforcement in Viet Nam of a foreign court judgment, by the High People’s Court in Ho Chi Minh City.

[*] Master of International Economic and Commercial Law – Bristol Law School, University of the West of England; Email: thanhnhan.GL@gmail.com, publication approval date: 31 December 2025.

[1] Constitution 2013, amended and supplemented 2025, Article 33.

[2] Civil Procedure Code 2015, No. 92/2015/QH13, dated 25 November 2015, Article 470(1)(a); see also Article 39(1)(c).

[3] Law on Land 2024, No. 31/2024/QH15, dated 18 January 2024, Article 236(5).

[4] LLaw on Housing 2023, No. 27/2023/QH15, dated 27 November 2023, Article 194(2).

[5] Constitution 2013, amended and supplemented 2025, Article 14(2).

[6] Land in Viet Nam is collectively owned by the people, represented and uniformly managed by the State (Constitution 2013, amended and supplemented 2025, Article 53). See also: Nguyen Thi Huyen, The Regime of National Ownership of Land in Contemporary Viet Nam, Vietnam Social Sciences Journal, No. 3, 33, 34–35 (2017).

[7] Gᴀʀʏ B. Bᴏʀɴ, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Aʀʙɪᴛʀᴀᴛɪᴏɴ: Lᴀᴡ ᴀɴᴅ Pʀᴀᴄᴛɪᴄᴇ §3.04[B] (3d ed. 2021).

Original text: "Among other things, various nations refuse to permit arbitration of at least some disputes concerning … real estate”.

[8] For an overview of the historical treatment of arbitration under English law, see: Stavros Brekoulakis, The Historical Treatment of Arbitration under English Law and the Development of the Policy Favouring Arbitration, Oxford Journal of Legal Studies, Vol. 39, No. 1, 124–150 (2019).

[9] Nadine J Lumley Barmania, Actions (Ontario) (§7), Canadian Encyclopedic Digest (Ontario) (4th ed, Thomson Reuters 2025).

[10] A.K. Kuhn, Local and Transitory Actions in Private International Law, U. Pa. L. Rev., 66, 301, 303 (1917).

[11] British South Africa Co. v. Companhia de Mocambique [1893] A.C. 602.

[12] Paul L.C. Torremans, Star Wars rids us of subject matter jurisdiction: the Supreme Court does not like Kafka either when it comes to copyright, European Intellectual Property Review, 33(12), 813, 814 (2011); Guy Martin, Actionability of Foreign Intellectual Property Rights in English Courts, World Intellectual Property Rights and Remedies, vol 3, § 56:2 (updated 2025).

[13] Companhia de Moçambique v British South Africa Company [1892] 2 QB 358 (CA) 404–05.

[14] Edward Bragiel, "A funny thing happened on the way to the forum" - actionability in the United Kingdom of infringements of intellectual property committed abroad, Intellectual Property Quarterly, 2, 135-159, 141 (1999).

[15] Companhia de Moçambique v British South Africa Company, tlđd, 405.

[16] Joost Blom, Star Wars Storm Troopers, the Next Episode: Lucasfilm in the United Kingdom Supreme Court, Intellectual Property Journal, vol. 24, 15, 19-20 (2011).

[17] United Kingdom, Civil Jurisdiction and Judgments Act 1982, Article 30(1).

[18] Livingston v. Jefferson, 15 F. Cas. 660, No. 8,411 (C.C.D.Va.1811).

[19] For the full litigation history, see: Ronan E. Degnan, Livingston v. Jefferson- A Freestanding Footnote, Calif. L. Rev., 75, 115 (1987).

[20] United States, Federal Courts Jurisdiction and Venue Clarification Act 2011, Article 202.

[21] United States, United States Code, 28 U.S.C. § 1391(a)(2).

[22] Jeffrey L. Rensberger, Jefferson's Ghost: The Local Action Rule in Federal Courts, Cardozo L. Rev., 44, 2423 (2023).

[23] Gʀᴀʜᴀᴍ Vɪʀɢᴏ, Tʜᴇ Pʀɪɴᴄɪᴘʟᴇs ᴏғ Eᴏ̨ᴜɪᴛʏ & Tʀᴜsᴛs 4 (5th ed 2023).

[24] Gʀᴀʜᴀᴍ Vɪʀɢᴏ, tlđd, 7.

[25] Cʜᴀʀʟᴇs Mɪᴛᴄʜᴇʟʟ ᴀɴᴅ Pᴀᴜʟ Mɪᴛᴄʜᴇʟʟ, Lᴀɴᴅᴍᴀʀᴋ Cᴀsᴇs ɪɴ Eᴏ̨ᴜɪᴛʏ 87 (2012).

[26] Cʜᴀʀʟᴇs Mɪᴛᴄʜᴇʟʟ ᴀɴᴅ Pᴀᴜʟ Mɪᴛᴄʜᴇʟʟ, tlđd.

[27] Wɪʟʟɪᴀᴍ Dᴀʏ ᴀɴᴅ Lᴏᴜɪsᴇ Mᴇʀʀᴇᴛᴛ (ᴇᴅs), Lᴀɴᴅᴍᴀʀᴋ Cᴀsᴇs ɪɴ Pʀɪᴠᴀᴛᴇ Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Lᴀᴡ 19 (2023).

[28] Commissioners of Inland Revenue v G Angus & Co (1889) 23 QBD 579, 596.

[29] Penn v Lord Baltimore (1750) 1 Ves Sen 444, 446, 27 ER 1132, 1134.

[30] Penn v Lord Baltimore, tlđd.

[31] Clyde Croft, The Advantages of Arbitration of Property Disputes - Some valuable insights from International Commercial Arbitration, Falcon Chambers (12-09-2025) https://www.falcon-chambers.com/publications/articles/the-advantages-of-arbitration-for-resolving-property-disputes

[32] Clyde Croft, tlđd.

[33] United Kingdom, Arbitration Act 1996, amended 2025, Article 48(5)(b).

[34] Telia Sonera AB v Hilcourt (Docklands) Ltd (No 2) [2003] EWHC 3540 (Ch), [2003] ArbLR 42 (Etherton J, ChD, 4 July 2003).

[35] United Kingdom, Arbitration Act 1934, Article 7.

[36] United Kingdom, Arbitration Act 1950, Article 15.

[37] United Kingdom, Supreme Court of Judicature (Consolidation) Act 1925, Article 56(1).

[38] Telia Sonera AB v Hilcourt (Docklands) Ltd (No 2), tlđd, paras 26-7.

[39] Telia Sonera AB v Hilcourt (Docklands) Ltd (No 2), tlđd, para 29.

[40] Telia Sonera AB v Hilcourt (Docklands) Ltd (No 2), tlđd, para 4.

[41] Telia Sonera AB v Hilcourt (Docklands) Ltd (No 2), tlđd, para 31.

[42] United Kingdom, Arbitration Act 1996, amended 2025, Article 48(1).

[43] LCIA Rules 2020, Article 22(1)(ix).

[44] United Kingdom, Arbitration Act 1996, amended 2025, Article 66.

[45] Civil Code 2015, No. 91/2015/QH13, dated 24 November 2015, Article 352; Commercial Law 2005, No. 36/2005/QH11, dated 14 June 2005, Article 297..

[46] Peter Schlosser, Report on the Convention on the Association of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland to the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and to the Protocol on its Interpretation by the Court of Justice, Official Journal of the European Communities, C 59, 71, 120-1, para. 166 (1979).

[47] European Parliament and Council, Regulation No. 1215/2012 (Brussels Ia Regulation), Article 24(1).

[48] Brussels Convention 1968, Article 16(1).

[49] Aʟғ Rᴏss ᴀɴᴅ Jᴀᴋᴏʙ ᴠ. H. Hᴏʟᴛᴇʀᴍᴀɴɴ (ᴇᴅ.), Oɴ Lᴀᴡ ᴀɴᴅ Jᴜsᴛɪᴄᴇ §41, 227 (2019).

[50] Aʟғ Rᴏss ᴀɴᴅ Jᴀᴋᴏʙ ᴠ. H. Hᴏʟᴛᴇʀᴍᴀɴɴ (ᴇᴅ.), tlđd.

[51] See also: Jesse W. Lilienthal, Privity of Contract, Harvard Law Review, Vol. 1, No. 5, 226, 226 (1887).

[52] For rights in tangible movable property, creating enforceability against all third parties in the world (publicity) is very simple through possession; therefore, the principle above only affects immovable property and registrable property rights.

Although possession and ownership are distinct concepts, to simplify the process of selling goods, the possessor of movable property is presumed to be its owner (e.g., Civil Code 2015, Article 184(2)). Therefore, creating enforceability against all third parties (publicity) for movable property is implemented very simply through possession.

[53] Case C‑433/19 Ellmes Property Services Limited v SP [2019] OJ C 357, paras 9-12, 19.

[54] Case C‑433/19 Ellmes Property Services Limited v SP, tlđd, paras 29 & 33.

[55] Case C‑438/12 Irmengard Weber v Mechthilde Weber [2012] OJ C379/16, paras. 45-6.

[56] Thomas Hoffmann, Aleksei Kelli and Age Värv, The Abstraction Principle: A Pillar of the Future Estonian Intellectual Property Law?, European Review of Private Law, 21(3), 823, 826-7 (2013).

[57] Peter Schlosser, tlđd, 121-2, para. 170.

[58] Thomas Hoffmann, Aleksei Kelli and Age Värv, tlđd, 827.

[59] Peter Schlosser, tlđd, 122, para. 171.

[60] Case C-518/99 Richard Gaillard v Alaya Chekili, Order of the Court (Sixth Chamber), 5 April 2001, [2001] ECR I-2771, paras 7-9.

[61] Case C-518/99 Richard Gaillard v Alaya Chekili, tlđd, para 19.

[62] Case C-518/99 Richard Gaillard v Alaya Chekili, tlđd, para 18.

[63] Case C‑294/92 Webb v Webb [1994] ECR I‑1717.

[64] Case C‑294/92 Webb v Webb, tlđd, Opinion of Advocate General Darmon, paras 35-7.

[65] Case C‑294/92 Webb v Webb, tlđd, Judgment of the Court, para 15.

[66] Case C-417/15 Schmidt v Schmidt [2017] OJ C14/13, paras 16, 17, 18, 33.

[67] Case C-417/15 Schmidt v Schmidt, tlđd, paras 34 & 21.

[68] European Parliament and Council, Regulation No. 1215/2012 (Brussels Ia Regulation), Article 8(4); Case C-417/15 Schmidt v Schmidt, cited supra, para. 42.

[69] European Parliament and Council, Regulation No. 1215/2012 (Brussels Ia Regulation), Article 1(2)(d) and paragraph 12 of the Preamble.

[70] Dmitry Davydenko and Alexander Muranov, RUSSIA: Court upholds right to arbitrate real estate disputes, Global Arbitration Review (18/11/2025), https://globalarbitrationreview.com/article/russia-court-upholds-right-arbitrate-real-estate-disputes

[71] Dmitry Davydenko and Alexander Muranov, tlđd.

[72] Civil Code 2015, Article 166.

[73] Civil Code 2015, Article 218(3).

[74] Civil Code 2015, Article 352.

[75] Civil Code 2015, Article 360.

[76] Civil Code 2015, Article 310(2).

[77] Civil Code 2015, Article 584.

[78] Civil Code 2015, Article 319(2).

[79] Civil Code 2015, Article 570.

[80] Civil Code 2015, Article 185.

[81] Civil Code 2015, Article 576.

[82] Civil Code 2015, Article 577.

[83] Civil Code 2015, Article 166.

[84] Civil Code 2015, Article 580-1.

[85] Housing Law 2023, Article 168.

[86] Commercial Arbitration Law No. 54/2010/QH12, dated 17 June 2010, Article 68(1).

[87] Civil Judgment Enforcement Law No. 26/2008/QH12, dated 14 November 2008, amended 2022, Article 7b.

[88] P. Jenard, Report on the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, Official Journal of the European Communities, C59, 1, 36 (1979).

[89] Case C-417/15 Schmidt v Schmidt, tlđd, para 37.

[90] Bernard Audit, Arbitration and the Brussels Convention, Arbitration International, 9(I), 1, 5 (1993).

[91] Hague Convention of 30 June 2005 on Choice of Court Agreements, Article 2(2)(l).

[92] Mᴀsᴀᴛᴏ Dᴏɢᴀᴜᴄʜɪ ᴀɴᴅ Tʀᴇᴠᴏʀ Hᴀʀᴛʟᴇʏ, Pʀᴇʟɪᴍɪɴᴀʀʏ Dʀᴀғᴛ Cᴏɴᴠᴇɴᴛɪᴏɴ ᴏɴ Exᴄʟᴜsɪᴠᴇ Cʜᴏɪᴄᴇ ᴏғ Cᴏᴜʀᴛ Aɢʀᴇᴇᴍᴇɴᴛs: Exᴘʟᴀɴᴀᴛᴏʀʏ Rᴇᴘᴏʀᴛ 12, para 33 (2004).

[93] Decision No. 28/2020/QDKDTM-PT, dated 29 June 2020, regarding the request for recognition and enforcement in Vietnam of a foreign court judgment of the High People’s Court in Ho Chi Minh City.

[94] Complaint Resolution Decision No. 849/2017/QD-TATP, dated 26 September 2017, by the People’s Court of Ho Chi Minh City, cited in DO VAN DAI (ed.), Civil Transactions on Real Estate (Vol. 2), 599–600 (2nd edition, 2022).

[95] Gᴀʀʏ B. Bᴏʀɴ, Iɴᴛᴇʀɴᴀᴛɪᴏɴᴀʟ Cᴏᴍᴍᴇʀᴄɪᴀʟ Aʀʙɪᴛʀᴀᴛɪᴏɴ §6.04[O] (3d ed. 2021).