17 January, 2016
Legal System
In order to enhance its relations with other countries, Vietnam has seen the need to establish a coherent national system of law. To this end, Vietnamese lawmakers have studied international laws and the legal systems and laws of other countries.
In 2013, the National Assembly (NA) adopted a new constitution which was entered into effect on 01 January 2014 and replaces the 1992 Constitution, as amended in 2001. Notably, the 2013 Constitution formally recognize the freedom of doing business in all sectors not prohibited by the state and the equal competition among all economic sectors, which implies that private and public companies must be treated equally.
According to the 2013 Constitution, the government, being the executive arm of the NA, is responsible for drafting proposals for legislation and ordinances for submission to the NA and the Standing Committee of the National Assembly (SCNA). The NA, as the highest legislative authority, is responsible for ensuring that the people and government agencies comply with the constitution and the laws. The SCNA acts on behalf of the NA outside its sessions and has the authority to issue ordinances and interpret the constitution,
laws and ordinances.
Laws in Vietnam are derived from legislation (codes and laws) enacted by the NA and ordinances of the SCNA when the former is not in session. These primary sources of laws are supported and implemented by government decrees and regulations, decisions of the prime minister, circulars, ministerial and inter-ministerial circulars, and governmental and city or provincial People’s Committee decisions or directives.
The NA, as the main legislature, makes and amends the constitution and laws. It also elects from its members the prime minister, who acts as head of state and is charged with the proclamation of the constitution, laws and ordinances. The prime minister is the commander-in-chief of the armed forces and the chairman of the defense and security council. He has a five-year term of office, corresponding with the term of the NA.
The executive arm of the NA is the government, whose head (the prime minister) is elected by the NA. There are also three deputy prime ministers in charge of key areas. While the prime minister is required to be a member of the NA, other members of the government need not be. The government is organized into 25 ministries, ministerial-level bodies and committees.
The judiciary consists of the People’s Courts and the People’s Procuracy. The chief judge of the Supreme People’s Court and the chief of the Supreme People’s Procuracy are appointed by the NA.
Courts
The 2013 Constitution defines the role of the judiciary in Vietnam. In 2014, a new Law on Organization of People’s Courts was adopted to replace the 2002 law, which significantly changes the structure of the court system as follows:
(a) Supreme Court; (b) high courts;
(c) provincial courts; (d) district courts; and (e) military courts.
Supreme People’s Court (SPC)
The SPC is the highest level of the court system, with seats that may be located in Hanoi, Ho Chi Minh City and Da Nang.13 It is the supreme adjudicatory body of Vietnam, headed by a chief judge, and is directly accountable to the NA. When the NA is not in session, it is accountable to the SCNA and the prime minister. The SPC is comprised of the following:
(a) Judicial Council of the SPC;
(b) assisting apparatus;
(c) training institutions.14
The number of judges of the Judicial Council of the SPC must be between 13 and 17.15
The SPC supervises the proceedings of People’s Courts in all levels and specialized courts (unless otherwise provided when such courts are established). In addition, it provides guidance for the uniform application of the law. It also submits laws and ordinance projects to the NA or the SCNA where appropriate and in accordance with the law.
In terms of adjudicatory competence, the SPC has the authority to do the following:
(a) review or make superior review of judgments or decisions that have taken effect;
(b) make overall assessment of adjudicating practices of courts, ensuring the uniform application of law in trial;
(c) train and retrain judges, assessors and other staff of people’s courts;
(d) manage people’s courts and military courts organizationally in accordance with the 2014 Law on Organization of Peoples’ Courts and relevant laws, ensuring independence of courts from one another; and
(e) submit to the NA draft laws and resolutions; to submit to the NASC draft ordinances and resolutions in accordance with law.
13 The SPC is located in Hanoi. It used to have appeal courts that are located in Hanoi, HCM City and Danang. However, under the new law, high courts are established in HCM City and Danang. Therefore, we are currently not certain if the SPC would continue to have appeal courts located in HCM City and Danang.
14 Art. 21, 2014 Law on Organization of Peoples’ Courts. 15 Ibid, Art. 22.1.
People’s High Courts
People’s High Courts have the following authority to16:
(a) conduct appellate trial of cases of which first-instance judgments or decisions of the provincial people’s courts within their territorial jurisdiction which have not yet taken legal effect and are appealed or protested against in accordance with the procedural law; and
(b) conduct trial according to the cassation or reopening procedures in which judgments or decisions of provincial and district people’s courts within their territorial jurisdiction which have taken legal effect and are protested against in accordance with the procedural law.
The People’s High Courts comprise of:17
(a) The judicial committee;
(b) Criminal Courts, Civil Courts, Administrative Courts, Economic Courts, Labor, Family and Juvenile Courts; other specialized court proposed by the Chief Judge of the SPC; and
(c) the assisting apparatus.
16 Ibid, Art. 29
17 Ibid, Art. 30
Local People’s Courts
Local People’s Courts consist of People’s Courts in provinces or cities under central control (or provincial courts) and People’s Courts in districts or towns under provincial control (or district courts). They are accountable to the SPC, which is, in turn, accountable to the NA.
People’s Courts in Provinces or Cities under Central Control
The Provincial People’s Courts are comprised of:18
(a) the judicial committee;
(b) criminal courts, civil courts, administrative courts, economic courts, labor, family and juvenile courts; other specialized tribunal proposed by the chief judge of the SPC; and
(c) the assisting apparatus.
In terms of adjudicatory competence, the Provincial People’s Courts have the authority to:19
(a) resolve cases at first-instance level;
(b) resolve appeals from first-instance judgments of immediate lower courts which have not yet taken effect; and
(c) review or make superior review of judgments or decisions of immediate lower courts which have taken effect.
18 Ibid, Art. 38
19 Ibid, Art. 37
People’s Courts in Districts or Towns under Provincial Control
Unlike the People’s High Courts and the Provincial People’s Courts, District People’s Courts do not have a judicial committee and may not be divided into separate courts charged with resolving cases relating to different fields such as criminal, civil, economic, labor or administration law.
Jurisdiction
The SPC
The SPC’s Judicial Council has the jurisdiction to review the judgments and decisions of the lower courts. It also has the power to select decisions and judgments to summarize and develop them into court precedents for the purposes of study and apply in trial.
People’s High Court
The People’s High Court has jurisdiction to conduct appellate trial of cases in which first-instance judgments or decisions of Provincial People’s Courts within territorial jurisdiction which have not taken effect yet are appealed or protested against in accordance with the procedural law. It can also conduct trial according to cassation or reopening procedure of cases in which judgments or decisions of People’s Courts at provinces and cities under central control within their territorial jurisdiction which have taken effect are protested against in accordance with the procedural law.
The Provincial People’s Court
The Provincial People’s Courts have jurisdiction to resolve prescribed cases at the first instance as well as at the appellate level.
Particularly, Provincial People’s Courts are entitled, where necessary, to hear the first-instance trial of civil cases and matters that fall within the jurisdiction of the District People’s Courts and cases relating to foreign elements. The Provincial People’s Courts have the authority to hear such cases at the appellate level, provided that they had been resolved by a lower court, such as a district court, and the court decisions relating to such cases have yet to take effect.
The District People’s Courts
In resolving business and trade cases, the jurisdiction of the District People’s Courts is limited to resolving the first instance certain business or trade disputes among individuals and/or organizations with registered, for-profit businesses, including purchase and sale of goods, provision of services, distribution, commercial representation, consignment, renting, leasing, hire-purchase, construction, consulting, engineering, and cargo or passenger transportation by rail, road or inland waterway, provided the dispute does not involve foreign elements.
Business and Trade Disputes
Under the Civil Procedure Code,20 the following are considered business and trade disputes:
(a) Disputes arising from business or trade activities among registered, for-profit individuals and/or organizations, including:
o Purchase and sale of goods; o Provisionofservices;
o Distribution;
o Commercialrepresentation; o Consignment;
o Renting, leasing, or hire-purchase; o Construction;
o Consulting,orengineering; o
o Cargoorpassengertransportationbyairorsea;
o Purchase and sale of shares, bonds or other valuable papers; o Investment, financing, banking;
o Insurance;and
o Exploration and exploitation.
20 The Civil Procedure Code was passed by the National Assembly of Vietnam on 15 June 2004 and amended in 2011 (Civil Procedure Code).
(b) Disputes over intellectual property rights or technology transfers among individuals or legal entities, which are all for the purpose of profit;
(c) Disputes between a company and its members and between members of a company in respect to the establishment, operation or dissolution, merger, consolidation, division, separation, or organizational transformation of the same company;
(d) Other business and trade disputes as prescribed by law.
Statute of Limitations
The Civil Procedure Code21 and Resolution No. 0322 provide the following guidelines for determining the applicable statute of limitations:
Cargo or passenger transportation by rail, road or inland
waterway;
21 Article 159.3, Civil Procedure Code.
22 Article 23, Resolution No. 03/2012/NQ-HDTP Guiding the Implementation of a Number of Provisions in Part One “General Provisions” of the Civil Procedure Code, issued by the Judicial Council of the People’s Supreme Court on 3 December 2012.
The limitation for requesting the court to resolve business and trade requests is one year from the date the right to request arises.
Confidentiality and Language
In principle, court proceedings are held publicly. But under special circumstances, court proceedings may be held privately to protect state secrets or the reasonable interests of the relevant parties to the case. Recently, the SPC published a number of volumes of reports containing a number of review decisions made by the Judicial Council of the SPC relating to labor, business, trade and civil cases. It is hoped that such publication will be maintained on a regular basis.
With regard to language, court proceedings are generally conducted in Vietnamese. Litigants are entitled to use their own language and, in this case, interpreters are required.
For civil cases for which the statute of limitations on lawsuits and requests are provided in legal documents, the provisions of these
legal documents shall apply. For example, according to Article 30 of the Insurance Business Law, the statute of limitations on
lawsuits involving insurance business contracts is three years, counting from the time the dispute arises.
No statute of limitation is applied to disputes over property ownership, such as disputes over claim back of properties under others’ management or in others’ possession, disputes over land use rights in accordance with the land law.
For disputes other than those prescribed as above, the statute of limitations for initiating a civil lawsuit is two years, counting from the date individuals, agencies or organizations become aware that their rights and legitimate interests are infringed upon.
Legal Profession
Judges
The chief judge of the SPC is elected and may be removed by the NA upon the recommendation of the President. The chief judge’s term of office corresponds to that of the National Assembly, i.e., five years. The deputy chief judge, judges of the SPC, chief and deputy chief judges and judges of the central military court are appointed and may be removed by the President.
The chief and deputy chief judges of specialized courts, Head and Vice Head of the Departments of the SPC, Chief and Deputy Chief Judges and Judges of the lower People’s Courts, and chief and deputy chief judges are appointed and may be removed by the chief judge of the SPC. Judges or persons holding key positions in a court in the People’s Court system in Vietnam cannot be lawyers.
Prosecutors
The People’s Procuracy (PP) exercises the power to prosecute and supervise judicial activities in Vietnam. Prosecutors working in the PP cannot be lawyers. The chairman of the Supreme People’s Procuracy is elected, removed or recalled by the NA. The local PP in provinces and cities under direct central authority, districts and provincial towns, are headed by local chief-procurators who are appointed, removed and recalled by the procurator-general and accountable to the local People’s Council.
Lawyers
The bar associations in Vietnam are professional organizations of lawyers established in accordance with the Law on Lawyers. To be admitted by a bar association in Vietnam, a candidate must satisfy the following requirements:
(a) Vietnamese citizenship and residence in Vietnam;
(b) Law degree from a law university;
(c) Graduation from a lawyer training course recognized under Vietnamese law in Vietnam or abroad, unless exempted by relevant regulations; and
(d) Good moral character.
Moreover, the applicant must not be a state official as defined in the regulations on state officials.
If these requirements are satisfied, a candidate may then apply for admission to a bar association as a trainee lawyer. A trainee lawyer will not be regarded as an official member of a bar association and has to be under the supervision of a qualified admitted lawyer. A trainee lawyer is subject to limited rights in representing a client in court and is not entitled to sign any legal advice. After a training period of not more than 12 months, a trainee lawyer must pass an examination to be admitted as a qualified lawyer.
A foreign lawyer can only practice in Vietnam after obtaining a permit from the Ministry of Justice (MOJ). To be granted a permit to practice in Vietnam, the following conditions must be satisfied:
(a) A valid law practice certificate granted by a competent foreign agency or organization;
(b) Experienced in giving advice on foreign law and international law;
(c) Respect for the constitution and law of Vietnam, the codes of ethics and professional manners of Vietnamese lawyers; and
(d) Nomination by a foreign law-practicing organization to practice law in Vietnam or recruitment by a Vietnam-based branch, a Vietnam-based foreign law firm or a Vietnamese law-practicing organization.
Foreign lawyers may practice in Vietnam as members or employees of Vietnam-based foreign lawyer’s profession-practicing organizations, or as employees of Vietnamese lawyers’ offices or Vietnamese law partnerships. Foreign lawyers are allowed to give legal advice on foreign laws and international laws but not on Vietnamese laws (except when they have obtained a Vietnamese law university degree and have fully satisfied the requirements for Vietnamese lawyers). Foreign lawyers are not allowed to participate in legal proceedings before Vietnamese courts as litigators or authorized representatives of clients.
Procedure for Claims
Commencement of Proceedings
With the exception of criminal and administrative cases, the procedure for the commencement of court cases is set out in the Civil Procedure Code. A plaintiff commences the case by submitting a letter of claim to a competent court. In addition to the letter of claim, the plaintiff is responsible for collecting and submitting all the documents and evidence relevant to the case.
Within five working days from the date of receiving the letter of claim and other relevant documents, the court will consider and make a decision on whether to process, forward or return the letter of claim. In case the court needs additional evidence, the court will notify the plaintiff. If the case belongs to the court’s jurisdiction, the court will send a notice to the plaintiff requesting for the payment of court fees. The court will consider resolving the case only upon the payment of the fees. The plaintiff is required to pay the court fees within 15 days from the date of notice. The court must issue a receipt, which will then be kept in the court’s file. A receipt for the payment will likewise be sent to the plaintiff.
Court’s Notice to Defendant
Within three working days from the date the court decides to take jurisdiction over the case, the court must give notice to the defendant and other relevant parties to the case (as stated in the letter of claim). The defendant and the other relevant parties, if any, must send to the court their response to the letter of claim within 15 days from notice. Upon application with the court, the deadline may be extended to another 15-day period. The law requires the court to open a trial within one month from the date of issuing the decision to bring the case to trial.
Conciliation
Except for a number of specific cases which are not required to undergo conciliation procedures, the Civil Procedure Code stipulates that the court is responsible for holding a conciliation meeting between the parties in dispute. Without this conciliation step, a verdict issued by a court is not valid under Vietnamese law. Where the parties fail to reach an agreement during the conciliation, the court must record minutes on the failure of the conciliation, and then proceed to a trial. If at any stage the parties reach a settlement, the court can issue a decision on the recognition of such an agreement between the parties. Such a decision comes into force immediately and must be sent to the parties within five working days from the date of issuance.
Burden of Proof
The burden of providing evidence in support of their respective positions lies upon the parties. The parties are expected to conduct the dispute on an adversarial basis, with each party bringing evidence and arguments in support of its position. Vietnamese law does not strictly require the parties to provide evidence before it opens a hearing for the case. New evidence may result in the court having to adjourn the hearing. In non-criminal cases, the court is not obliged to investigate and collect evidence when deciding the case or to otherwise adopt the inquisitorial procedures that it may use in criminal matters. However, as a matter of custom and practice, or subject to the request of any party to the case, it may do so.
Withdrawal and Discontinuance
The plaintiff is entitled to unilaterally withdraw or discontinue its claim against the defendant at any time before the court has granted a verdict. If the plaintiff withdraws the letter of claim before the court holds the hearing of the case, the advance payment of the court fees will either be transferred to the state budget or, in some particular cases, refunded to the plaintiff.
Interlocutory Orders
The courts have the power to make temporary or interlocutory orders, including the blocking of bank accounts and the securing of assets in dispute. The court may take such measures at its own discretion, or upon the application of one or more of the parties, within a period of three days from the date of receiving a request for an interlocutory order. The enforcement of interlocutory orders does not require a formal application on the part of the party that has obtained it. Rather, an execution order may be issued by the concerned Office for Execution of Court Judgments on its own initiative, after the court has forwarded the interlocutory order to that office.
Appeals
Any appeal is required to be sent to the court that held the trial at the first instance within 15 days from the date of the decision, judgment or, where the defendant did not attend the hearing, 15 days from the date the decision or judgment was served to the defendant or to the local People’s Committee where he lives. After that period, any appeal would be considered overdue appeal. The court that held the trial at the first instance will have to forward the appeal letter and the report for overdue appeal reason to an appellate court. If the appellate court accepts the overdue appeal, the court of first instance will have to proceed with the procedure as stipulated in the Civil Procedure Code.
After accepting the qualified appeal letter, the first-instance court must give notice, in writing, to the Prosecution Institute at the same level and relevant parties to the case of the appeal letter. The relevant parties have the right to send their opinions in response to the appeal letter. In addition, the first-instance court is required to forward the appeal letter to the appellate court within five days from the date it has received evidence of the payment of court fees. The appellate court will issue the decision to bring the case to an appellate trial within two months from the date on which the appellate court decides to take jurisdiction of the case. The appellate court will open an appellate trial within one month from the date of the court’s decision to bring the case to an appellate trial.
Enforcement of Judgments
If a judgment debtor fails to execute the court’s judgment voluntarily, measures for enforcement include taking of an inventory of the debtor’s assets for subsequent appraisal and sale by auction, seizure of assets, attachment of earnings and assets, and forcible stoppage of illegal actions on the part of the judgment debtor.
To ensure that a creditor is aware of his rights in this respect, the court issues copies of its judgments and orders to both parties and informs the judgment creditor expressly of its right to initiate enforcement. Where an enforcement application is required, it must be filed within five years from the date of the relevant judgment took effect.
Enforcement is conducted by an executor who is not a court official but a state official under the authority of the MOJ. The executor has extensive powers, including the power to summon the parties to his office or the local People’s Committee in order to execute the judgment or order; set deadlines within which the judgment debtor is bound to comply; and take applicable enforcement measures if the judgment debtor fails to comply in the prescribed time frame and manner. The executor may also request the court to clarify uncertain points in its judgment or order.
All costs for the execution of judgments are normally borne by the debtor. The police may be charged with maintaining order during that process. Other interested parties may attend the execution in order to safeguard their interests. To this end, they may contest an execution in some cases. For example, if title to inventoried assets is disputed by third parties, they may initiate legal action within 30 days in order to obtain a court ruling on the ownership of the assets in question. In the meantime, however, the authorities are free to list the relevant assets but may not dispose of them until the court has made its decision. If the right to file a suit is not asserted, the authorities may seize the assets and dispose of them (usually by way of auction).
Recognition and Enforcement of Foreign Judgments
Under the current Civil Procedure Code, Vietnamese courts will only consider the recognition of judgments issued by courts in countries that have entered into an agreement in this regard with Vietnam. To date, most of the countries that have entered into a judicial agreement with Vietnam are former socialist countries.
With regard to countries that have not signed a judicial agreement with Vietnam, the recognition of the verdicts issued by the courts in those countries would be considered for recognition on a reciprocal basis.
For a foreign verdict to be recognized in Vietnam, a letter requesting the recognition of the same must be sent to the MOJ in Vietnam.
The MOJ will forward the letter, together with any attached documents, to an authorized court within seven days from the date of receipt of the letter of request for its consideration and action. Three days after the court has received all the documents, it is required to issue a decision as to whether it will reject the request for recognition and return all the documents to the MOJ, or it will consider the case.
Arbitration Law
A new law on commercial arbitration took effect on 1 January 2011, which replaced the 2003 Ordinance on Commercial Arbitration. The government is currently drafting the implementing regulations for this new law.
Vietnam is a member of the New York Convention of 1958. However, Vietnam is not a party to the 1965 Convention on the Settlement of Investment Disputes (ICSID Convention). On the other hand, Vietnam has entered into a Bilateral Trade Agreement (BTA) with the
United States, which provides that in disputes between nationals or companies of each country against the other, Vietnam, the United States or the company/ national concerned may submit the dispute for settlement by binding arbitration:
(a) to the International Centre for Settlement of Investment Dispute (the Centre) established by the ICSID Convention, if both Vietnam and the United States are members of the ICSID Convention and the Centre is available;
(b) to the Additional Facility of the Centre, if the Additional Facility is available;
(c) in accordance with the United Nations Commission on Internal Trade Law (UNCITRAL) Arbitration Rules or any recognized international arbitration rules, if agreed; or
(d) if agreed by both parties to the dispute, to any other arbitration institution or in accordance with any other arbitration rules.
However, these remedies are only available if the national or company concerned has not submitted the dispute for resolution to the competent courts or administrative tribunals of Vietnam or the United States in the territory of which the covered investment had been made or submitted the same in accordance with any applicable, previously agreed dispute settlement procedures. For the above remedies to be available, it is also required that 90 days have elapsed from the date the dispute arose.
In cases involving investment disputes between a US company and the State of Vietnam, Vietnam has explicitly consented to binding arbitration by ICSID in the BTA.
Role of Courts in Arbitration
Under Vietnamese law, if parties to contracts have agreed that any dispute arising from the contract will be resolved by way of arbitration, the court will not have jurisdiction to resolve such dispute.
Parties can request for an interim relief from the arbitration tribunal or a court. In addition, courts may revoke Vietnamese arbitration decisions or awards in the circumstances below:
There is no arbitration agreement;
The arbitration agreement is invalid or unenforceable; •
The Arbitration Council’s composition and/or arbitral proceedings fail to comply with the parties’ agreements;
The dispute does not fall under the jurisdiction of the Arbitration Council. If part of the arbitral award does not fall under the
jurisdiction of the Arbitration Council, such part shall be cancelled;
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; or The arbitral award runs counter to the public interests of the Socialist Republic of Vietnam.
Institutional and Ad Hoc Arbitration
Institutional Arbitration
Under the Law on Commercial Arbitration, arbitration centers may be established in various localities in accordance with the regulations of the government. The law sets the conditions and procedures for the establishment of arbitration centers, their duties and powers, as well as causes for the termination of their operations. The law also removed the requirement of Vietnamese citizenship from the qualifications of an arbitrator. This means that foreigners can be appointed as arbitrators in Vietnam if they meet all the requirements under the law. Moreover, under the current law, foreign arbitration centers are permitted to operate in Vietnam through a branch or representative office after satisfying the conditions and procedures required by law. However, the arbitration awards issued by the local representative office or branch of a foreign arbitration center are considered as foreign arbitration awards and have to go through the process of recognition by the competent court before enforcement can be made in Vietnam.
There are eight domestic arbitration centers currently operating in Vietnam, comprising the following:
Vietnam International Arbitration Center (VIAC);
Financial and Commercial Center for Arbitration (FCCA);
Ho Chi Minh City Commercial Arbitration Center (TRACENT);
Can Tho Commercial Arbitration Center (CCAC);
ASEAN International Commercial Arbitration Center (ACIAC);
Pacific International Arbitration Center (PIAC);
Vietnam Finance-Banking Commercial Arbitration Center (VIFIBAR); and
8. Indochina Trade Arbitration Centre (ITAC)
The most well-known arbitration center in Vietnam is VIAC. It is the non-government institutional arbitration established at the Chamber of Commerce and Industry of Vietnam. VIAC is run on the basis of the Law on Commercial Arbitration and VIAC’s Rules of Arbitration. While the Law on Commercial Arbitration and VIAC’s Rules of Arbitration seem to allow VIAC to apply arbitration rules other than VIAC’s Rules of Arbitration as agreed by parties to a dispute, it is still unlikely that VIAC will resolve such cases. In reality, VIAC has refused to handle cases where the parties agree to arbitration rules other than VIAC’s Rules of Arbitration and considered such arbitration terms inoperative.
When a case is brought to VIAC, a committee comprised of three arbitrators would need to be set up. Each party has the right to select an arbitrator from the list of VIAC’s arbitrators. The two selected arbitrators shall nominate a third arbitrator who is also a VIAC arbitrator. The third arbitrator shall be the chairman of the arbitration committee.
The parties in dispute may also choose only one arbitrator to settle their claim if there is an agreement on this. In this case, the only arbitrator selected shall perform all duties of an arbitration committee.
The activities of the other arbitration centers in Vietnam are less clear. For instance, TRACENT handled only six cases both in 2006 and 2007. The other arbitration centers listed above could not be reached for lack of contact information easily accessible to the public.
Ad-hoc Arbitration
Ad-hoc arbitration can be established under the circumstances and through the procedures provided in the Law on Commercial Arbitration. If the parties do not have an agreement on the number of arbitrators, an arbitration tribunal will consist of three arbitrators. Unless otherwise agreed by the involved parties, the respondent must select and notify the claimant of the respondent’s choice of arbitrator within 30 days from receiving the claimant’s statement of claims. If the respondent fails to do so and the parties have no agreement on the appointment of an arbitrator, then the claimant can request the competent court to appoint an arbitrator for the respondent. If the parties agreed to a sole arbitrator and they are unable to agree on the selection of arbitrator within 30 days from respondent’s receipt of the statement of claims, then the competent court will appoint the sole arbitrator at the request of one or all parties unless the parties have an agreement to request an arbitration center to appoint the sole arbitrator. So far, we have not been aware of cases resolved by way of ad-hoc arbitration in Vietnam.
Enforcement of Arbitration Awards
Domestic Arbitral Awards
The enforcement procedure for domestic arbitral awards is done in accordance with regulations in the Law on Commercial Arbitration. If on the expiry of the time limit for carrying out an arbitration award the award debtor has not voluntarily carried out the award and has not requested that the award be set aside, the winning party may make a written request to the civil judgment enforcement authorities to enforce the arbitral award.
Foreign Arbitral Awards
The current Civil Procedure Code allows for bilateral enforcement according to the principles of the New York Convention 1958. In principle, recognition and enforcement in Vietnam may be permitted:
(a) If the award is from a country which has signed or acceded to a relevant international convention, (inter alia, a signatory state to the New York Convention 1958); or
(b) On the basis of reciprocity, without requiring the signing of, or accession to an international convention. Arbitral awards of foreign arbitrators shall be enforced in Vietnam only after they are recognized and permitted for enforcement by Vietnamese courts.
Procedures
To be enforced in Vietnam, a foreign arbitral award must be formally recognized and held enforceable by a Vietnamese People’s Court at provincial or equivalent level, including the three centrally administered municipalities of Hanoi, Haiphong and Ho Chi Minh City. To obtain an enforcement order, the party seeking the enforcement of the award must lodge a formal application for its recognition and enforcement to the MOJ. Among the various requirements pertaining to an enforcement application, the most important is that the respondent must either have its principal office in Vietnam (if an organization), or must reside or work in Vietnam (if an individual). An application may nevertheless be lodged where this is not the case, provided that the assets relating to the enforcement are located in
Vietnam at the time the application is submitted.
Within seven days from the date of receipt of the application and attached documents, the MOJ must forward the dossier to the authorized court. Within three days from the date of receipt of the dossier sent by the MOJ, the court must process the dossier and notify relevant parties, agencies or organizations, enforcement agencies and the PP at the same point in the process. If the case is not suspended as stipulated in the Civil Procedure Code, a formal hearing must be conducted by a panel of three judges within two months from the date the dossier is processed. This panel is not empowered to re-open the substantive dispute and may only review the basis on which recognition and enforcement of the award may be allowed. At the end of the hearing, the court makes its decision on a simple majority basis. The court may either grant or refuse recognition and enforcement of the award.
Grounds for Refusal of Recognition and Enforcement
The People’s Courts may refuse recognition and enforcement of a foreign arbitral award on grounds similar to those set out in Article V of the 1958 New York Convention. Recognition may be refused where:
(a) The parties lacked the capacity to sign the arbitration agreement or arbitral clause;
(b) The arbitration agreement is invalid under applicable law;
(c) The respondent did not receive sufficient notice of the appointment of arbitrators or the arbitration proceedings;
(d) The award has been validly set aside, revoked or suspended;
(e) The award lacked mandatory binding effect on the parties;
(f) Thesubjectmatterofthedisputeisnotcapableofsettlementby arbitration under Vietnamese law; or
(g) The court deems it as contrary to the basic principles of Vietnamese law to allow recognition and enforcement.
The Civil Procedure Code provides that a foreign arbitral award which is recognized and held enforceable by a people’s court has the same legal effect as any other legally effective decision of a Vietnamese court. It also contains provisions that are designed to ensure that any proceeds or assets realized from the enforcement may be transferred abroad.
Power to Appeal and/or Set Aside Award
A domestic arbitral award is binding upon the parties and enforceable, unless it is set aside by a decision of the court. A decision setting an award is final and not subject to appellate procedures under Vietnamese law. Under the Law on Commercial Arbitration, within 30 days from the date of receipt of an arbitration award, the parties have the right to submit a petition to the local competent court to request to set aside the arbitral award. Under Article 68 of the Law on Commercial Arbitration, an arbitral award may be set aside if it falls under any one of the following instances:
(a) There is no arbitration agreement, or the arbitration agreement is invalid or unenforceable;
(b) The composition of the arbitral tribunal or the arbitral proceedings is not consistent with the agreement of the parties, or is inconsistent with the law;
(c) The dispute does not fall within the arbitral tribunal’s jurisdiction. In cases where an arbitral award contains a particular that does not fall within the arbitral tribunal’s jurisdiction, such particular will be set aside;
(d) The evidence provided by the parties on which the arbitration tribunal relied to issue the arbitral award was forged; or the arbitrator accepted money, property or other material benefits from one of the parties to the dispute, which affected the objectivity and impartiality of the arbitral award; or
(e) The arbitral award is contrary to the fundamental principles of the laws of Vietnam.
When hearing the petition, judges must reply on the provisions of Article 68 above and the materials accompanying the petition in order to reach its decision and must not review the merits of the dispute which the arbitration tribunal already resolved.
Mediation
Vietnamese law does not formally recognize mediation as a separate form of dispute resolution. However, conciliation is a compulsory step if a case is referred to a court in Vietnam (see above).
For further information, please contact:
Wynn Pakdeejit, Partner, Baker & McKenzie
milton.cheng@bakermckenzie.com
