20 frequently asked questions on arbitration

Question and answer Law on Commercial Arbitration
1. Can I contract out of the Law?Yes – in part. Most of the regulations provided in the LCA are mandatory. Some non-mandatory rules are marked with the phrases “unless otherwise agreed upon by the involved parties” or other similar expressions.The parties cannot contract out of the mandatory rules but can contract out of the non-mandatory rules
2.
How many arbitrators are there on the tribunal?– The parties are free to agree the number of arbitrators and procedures for appointing such arbitrators. If the parties do not agree the number of arbitrators, the tribunal will consist of three arbitrators. If there is a failure to appoint an arbitrator, such arbitrator may be appointed by the president of the arbitration center and/or the competent court. 39 (1)39 (2)40, 41
3. How do I start an arbitration? Where the dispute is referred to an arbitration center, unless otherwise agreed by parties, the arbitration commences when the arbitration center receives the statement of claim submitted by the claimant. – Where the dispute is resolved by an ad hoc tribunal, unless otherwise agreed by parties, the arbitration commences when the respondent receives the statement of claim sent by the claimant. In this respect, arbitration procedures are differed from court procedures where the proceedings commence when the court enrolls the statement of claims and attached documents.  31 (1)31 (2)
4. When must I start an arbitration? – Unless otherwise stipulated by specialized law, the limitation period for initiating proceedings for dispute resolution by arbitration shall be two (2) years from the date of infringement of legal rights and interests. – The contractual time limit is normally not acceptable under the Vietnamese Law.  33
5.
Is the arbitration agreement valid even through the main contract is void? – An arbitration agreement shall exist totally independently of the contract. Any modification, extension or rescission of the contract, or invalidity or unenforceability of the contract shall not result in the invalidity of the arbitration agreement. – The consideration of whether the arbitration agreement is valid will be conducted by the arbitral tribunal and the competent court. 1943, 44
6. What happens if it is alleged that the arbitrators have no jurisdiction? – An application can be made to the arbitration tribunal because they have the power to rule on their own jurisdiction. – An application can subsequently be made to the court to consider the arbitration tribunal’s jurisdiction if a party still questions on the tribunal’s jurisdiction. – The arbitral tribunal have no jurisdiction is a ground for a party to request the competent court to set aside the arbitral award, except for the situation that such party lose the right to object at the arbitration or before the court because of discovering a breach of the provision of this Law or of the arbitration agreement but continues to conduct the arbitration proceedings and does not object to such breach within the time-limit stipulated in this Law. – Ground for the court to deny recognition and enforcement the foreign arbitral award under Civil Procedure Code of Vietnam in 2004 (CPC)  35 (4), 434468(2)(c);  69; 13370.1 (d)
7. What can be done if one party ignores the arbitration agreement and commences court proceedings? – If the court proceedings are commenced, the court will refuse to accept jurisdiction, unless the arbitration agreement is determined by the court as invalid or incapable of being performed. – For disputes between goods and/or service provider [on the one hand] and consumers [on the other hand], a consumer shall have the right to select arbitration or a court to resolve the dispute. A goods and/or service provider shall only have the right to initiate arbitration proceedings if the consumer so consents.  617
8. What is the duty of the arbitrators? – Arbitrators must respect the agreement of the parties if it does not     breach prohibitions and is not contrary to social morals. – Arbitrators must be independent, objective and impartial and must comply with the provisions of law. – Parties in dispute shall have equal rights and obligations. Arbitration tribunals shall be responsible to facilitate the parties to exercise their rights and to discharge their obligations. – To refuse to provide information concerning a dispute. – To receive remuneration to maintain confidentiality of the contents of the dispute which he or she resolves, unless information must be provided to a competent state authority in accordance with law. – To ensure the resolution of a dispute is impartial, speedy and on prompt. – To comply with rules on professional ethics. 4(1)4(2)4(3)21(3)21(5)21(6)21(7)
9. What is the duty of the parties to the arbitration? – The parties shall comply with any provision of LCA 2010, rules of arbitration centre (in case of institutional arbitration), any decisions, directions of arbitral tribunal and competent court. – The State encourages the parties to voluntarily carry out arbitral awards.  65
10.

What are the powers of the arbitrators in the conduct of proceedings? – The arbitral tribunal has the right to accept or refuse to resolve a dispute and receive remuneration – For disputes with a foreign element [and/or] disputes where at least one party is an enterprise with foreign invested capital, unless otherwise parties agreed, the arbitral tribunal shall decide the language to be used in arbitration proceedings and the applicable law which it considers the most appropriate. – The tribunal has the power to decide the place of hearings in case parties do not have any agreement. – The tribunal has the authority to consider whether arbitration is void or incapable of being performed and whether the arbitration tribunal has jurisdiction over the case. – The arbitration tribunal may on its own initiative, rectify any obvious errors in spelling or figures caused by a mistake or incorrect computation in the arbitral award, and/ or issue a supplementary award with matters raised during the process of the proceedings but not yet recorded in the award under the request of the party. In necessary cases, the arbitration tribunal may extend the time-limits for rectification, explanation or issuance of a supplementary award. – In particular, the arbitral tribunal has the power to:

+         Verify the facts

+         Obtain evidences including appointment of experts

+         Summon witnesses for hearings

+         Order interim relief, amend, supplement or rescind injunctions which stipulated in Art. 49 LCA

 21(1); 21(4)10(2); 14(2)11(1)43(1)6345464749, 51
11. What happens if a party defaults or disobeys an order made by the arbitrator? – The claimant’s absent without proper reasons will be considered as the withdrawal of the claim. In such case the arbitration tribunal shall continue the arbitration proceedings if the respondent so requests or if there is a counterclaim. – If a respondent was validly summoned to attend a hearing but fails to attend without a legitimate reason or leaves a hearing without the consent of the arbitration tribunal, the arbitration tribunal shall continue the arbitration proceedings based on currently available materials and evidence. – The Vietnamese Law does not grant arbitrators the rights to grant peremptory order and clear rules on cases where a party disobeys an arbitrator’s order. However, a failure to comply with arbitrator’s order shall cause the following consequences:+         If the order relates to deposit of arbitration fees in advance by the claimant, the claim and/or counter-claim may be considered as withdrawn;+         If the order relates to provision of security for an injunctive relief, the arbitrator may order to refuse to apply the injusctive relief;+         The arbitrators may proceed to an award on the basis of the documents and materials submitted with adverse inferences from the non-compliance; and/or+         The arbitrators may make orders as to payment of arbitration costs as they think fit. 56(1)56(2)34(3)
12. Under what law do the arbitrators decide the dispute? – For disputes without a foreign element, the arbitration tribunal shall apply the substantive law of Vietnam in order to resolve the dispute. – For disputes with a foreign element, the arbitration tribunal shall apply the law chosen by the parties; if the parties do not have an agreement on applicable law, then the arbitration tribunal shall make a decision to apply the law which it considers the most appropriate. – If the law of Vietnam [or] the law chosen by the parties does not contain specific provisions relevant to the matters in dispute, then the arbitration tribunal may  apply international  customs  in order to resolve the dispute if such application or the consequences of such application are not contrary to the fundamental principles of the law of Vietnam. 14(1)14(2)14(3)
13.

What remedies can the arbitrators award? – The arbitrators may provide remedies agreed by parties and conformity with the Vietnamese law.

+ The tribunal can decide on arbitral tribunal’s jurisdiction and the validity of arbitration agreement – Otherwise, the arbitrator can award:

+ Recognize the successful conciliation of parties

+ An order to perform the specific obligations stipulated in contracts;

+ An order for payment of debts, arbitration fees;

+ An order for payment of penalty and/or compensation for damages;

+ An order to refund or return a property;

+ A  supplementary award  with matters raised during the process of the proceedings but not yet recorded in the award,

435863(4)
14.

How are legal costs and arbitrators’ fees dealt with in arbitration?– The arbitrators’ fees may also be set under:

+ Schedule of fees set by arbitration centers; and/or

+ The arbitration tribunal under ad hoc case. – The parties may have agreement on legal costs and arbitrators’ fees, or request the tribunal to divide those costs.

34(3)34(2)
15.

What is an arbitration award and what must it look like? – Arbitral award means the decision of the arbitration tribunal resolving the entire dispute and terminating the arbitration proceedings. – An arbitral award must be in writing and contain the following main particulars:

a)       Date and location of issuance of the award;

b)       Names and addresses of the claimant and of the respondent;

c)       Full names and addresses of the arbitrator/s;

d)       Summary of the statement of claim and matters in dispute;

e)       Reasons  for issuance of the award,  unless the parties agree  it is  unnecessary to specify reasons for the award;

f)        Result of the dispute resolution;

g)       Time-limit for enforcement of the award;

h)       Allocation of arbitration fees and other relevant fees;

i)         Signatures of the arbitrator/s

3(10)61
16.
How can I enforce an arbitration award? – An arbitral award shall be final and shall be of full force and effect as from the date of its issuance, except for being revoked. – An arbitration award issued by a local tribunal shall be enforced by local enforcement agencies in consistent with the provision of law on enforcement of civil judgments without any requirement on court’s approval/permission. – In the case of an ad hoc arbitral award, the award must be registered with competent court of Vietnam in accordance with article 62 of this Law, before enforcing by the competent enforcement agency in Vietnam. – Arbitration award issued by foreign tribunal may be recognized and enforced by the competent court of Vietnam under New York Convention 1958 and/or a reciprocal basis in line with provisions, part VI of Civil Procedure Code of Vietnam (CPC); 61(5)66(1); 6766(2)
17.
What is the court’s role in arbitration proceedings?Some main roles of the national courts in arbitration proceedings may be listed:

–          Facilitating and assisting the arbitration proceedings

+         Appointing or replacing the arbitrator in case of ad-hoc arbitration

+         Appointing the chairman of tribunal in case the appointed arbitrators could not agree;

+         Appointing the sole arbitrator in case parties could not agree;

+         Change and/or removal of the appointed arbitrator;

+         Gathering evidence on the case and summoning witnesses

+         Enforcing the interim reliefs before the arbitration tribunal is established;

–          Determining the jurisdiction of arbitration tribunal; Deciding on non arbitration agreement existed or the arbitration agreement is null and void, in capable of being performed;

–          Registering ad- hoc arbitral award for enforcement in Vietnam.

7(2)(a)- (b)41(1)- (3)42(4)46(5)+ (6)47(2) + (3)4462
18. How can I challenge an award?

  • In case of domestic arbitration, the grounds for challenge arbitral awards are:

(a) There is no arbitration agreement or the arbitration agreement is null and void;

– A signatory to the arbitration agreement lacks authority to enter into it;

– One party to the arbitration agreement lacks full civil legal capacity;

– Subjects of the dispute has not been determined;

– The arbitral tribunal and/or arbitration center has not been clarified;

– The arbitration agreement is not made in writing;

– A party to the arbitration agreement was deceived or threatened.

– The arbitration agreement violates the provision of Vietnamese law

(b) The composition of the arbitration tribunal was or the arbitration proceedings were inconsistent with the agreement of the parties or contrary to the provisions of this Law;

The disputes arising from the area, out of the jurisdiction of the arbitral tribunal as provision under Art. 2 of LCA. In particular, disputes between parties arising from commercial activities, between parties at least one of whom is engaged in commercial activities and between parties which the law stipulates shall or may be resolved by arbitration.

(c) The dispute was not within the jurisdiction of the arbitration tribunal; where an award contains an item which falls  outside the  jurisdiction  of the arbitration tribunal, such item shall be set aside;

(d) The evidence supplied by the parties on which the arbitration tribunal relied to issue the award was forged; or an arbitrator received money, assets or some other material benefit from one of the parties in dispute which affected the objectivity and impartiality of the arbitral award;

(dd) The arbitral award is contrary to the fundamental principles of the law of Vietnam.

In case of foreign arbitral award, Art. 356 of Civil Procedure Code stipulates 6 circumstances in which the foreign arbitral decision/ awards shall not be recognized and enforced in Vietnam:

+         The civil judgement or decision is not yet legally enforceable in accordance with the laws of the country in which the court has made such judgement or decision.

+          The person against whom enforcement is sought, or his or her legal representative, is absent from the trial of the foreign court because such person is not properly summoned.

+         The case falls under the particular jurisdiction of the court of Vietnam

+         The case has been resolved by a legally enforceable civil judgment or decision of the court of Vietnam or of a foreign court which has been recognized by the court of Vietnam or before the foreign tribunal accepts to resolve the case, the court of Vietnam has accepted and is resolving such case.

+         The time-limit for enforcement of the judgement has expired in accordance with the laws of the country in which the court which has made such civil judgement or decision or in accordance with the laws of Vietnam.

+         The recognition and enforcement in Vietnam of the civil judgement or decision of theforeign court is contrary to the basic principles of the laws of Vietnam.

68(2)(a)68(2)(b)2 & 1668(2)(c)68(2)(d )68(2)(dd)
19. If I am unhappy about an arbitrator, what can I do?– An arbitrator may be removed under any following grounds:+ The arbitrator is a relative or representative of a party;+ The arbitrator has an interest related to the dispute;

+ There are clear grounds demonstrating that the arbitrator is not impartial or objective;

+ The arbitrator was a mediator, representative or lawyer for either of the parties prior to the dispute being brought to arbitration for resolution, unless the parties provide written consent.

+ Has not met the qualification of arbitrator of parties or Vietnamese law under Art. 20

+ Has activities which violate the ethicst or obligations of arbitrators

– The request to remove or replace or challenge arbitrators shall be filed to arbitral tribunal, President of arbitration center or competent court.

42(1)2021
20. Can I appear before arbitrator with my lawyers?Yes. The LCA allow parties to personally attend arbitration proceedings or authorize their representatives to attend with the support of lawyers; 55(2)