ALTERNATIVE DISPUTE RESOLUTION IN VIET NAM
Dr. Nguyen Thi Hoa
Lecturer at international law faculty
Ho Chi Minh City University of Law, Viet Nam Email: [email protected]
ALTERNATIVE DISPUTE RESOLUTION IN VIET NAM
I. Overview on ADRs in Viet Nam
II. Relationship between ADRs in Viet Nam
III. Arbitration in Viet Nam
Non-binding ADR methods
• Mediation
• Dispute Adjudication Board
Binding ADR methods
• Arbitration
ALTERNATIVE DISPUTE RESOLUTION IN VIET NAM
I. Overview on ADRs in Viet Nam
ALTERNATIVE DISPUTE RESOLUTION IN VIET NAM
• Decree No. 22/2017/NĐ-CP on commercial mediation of February 24, 2017
• Decree No. 37/2015/NĐ-CP regulating precisely construction contract on April 22, 2015.
Non-binding ADRs
•Law on commercial arbitration of 2010
•Resolution No 01/2014/NQ-HĐTP of the Council of justice of Supreme People's Court
Binding ADR
Construction law – Art. 146, para. 8, point b:
➢ “Parties to contract need to negotiate on their own to resolve disputes. In case of failure of this negocition, the dispute will be resolved through mediation, commercial arbitration or court according to the provisions of law”.
I. Overview on ADRs in Viet Nam
II. Relationship between ADRs in Viet Nam
Multi-tiered dispute resolution clause
Non-compliance with pre-arbitration procedure
Arbitral tribunal’s competence to
enforce execution of solution coming out of pre-arbitration procedures.
- Decision No. 10/2014/QĐ-PQTT on October 28, 2014, the People’s Court of Hanoi;
- Decision No. 795/2017/QĐ-PQTT on June 27, 2017, the People’s Court of Ho Chi Minh City.
Commercial Arbitration Law of 2010:
- Provisional emergency measure?
- Interim or partial award?
III. Arbitration in Viet Nam
(Law on commercial arbitration – LCA)
1. Definition of arbitral award
Para. 10 Art. 3 LCA:
“The arbitral award is the decision of the arbitral tribunal resolving the entire matters of the dispute and terminating the arbitral proceedings”.
Para 3 Art. 424 of Vietnamese CPC: “Foreign arbitration, foreign arbitral award… are determined according to the provisions of the LCA”.
➢ Partial award, interim award or provisional emergency order can not be recognized and enforced in Viet Nam
The Vietnamese Law on enforcement of civil judgments of 2008 at article 2 point (d)
III. Arbitration in Viet Nam
(Law on commercial arbitration – LCA) 2. The court’s control over arbitration
Court’s control
Re-examine the decision on (in)competence
Consider the request of setting aside the
award
Hold arbitrators’
liability for damages from execution of its’
provisional
emergency order
2. The court’s control over arbitration
Court’s control through Re- examining the decision on (in)competence
Art. 43. LCA: “Before considering the matter of the dispute, the arbitration tribunal must consider the validity of the arbitration agreement” => give a decision on (non)jurisdiction
LCA. Art. 44. para. 1. “In case of disagreement with the decision of the
arbitral tribunal as prescribed in Article 43 of this Law, within 05 working days from its receipt, the parties have the right to submit a request to the Court to review this decision”.
LCA. Art. 44. para 6. “In case the Court decides that the dispute is not within the arbitral tribunal’s jurisdiction…the Arbitration Council shall issue a
decision to suspend the dispute settlement
2. The court’s control over arbitration
LCA art. 68. para. 2. The arbitration award is annulled if it falls into one of the following situations:
a) There is no arbitration agreement or the arbitration agreement is invalid;
b) The composition of the arbitral tribunal, arbitration procedure is not
consistent with the agreement of the parties or contrary to the provisions of this Law;
c) The dispute is not under the jurisdiction of the arbitral tribunal; If the arbitral award has
a content that does not fall within the jurisdiction of the arbitral tribunal, that content shall be annulled;
d) The evidence provided by the parties upon which the arbitral tribunal bases a decision is fraudulent; The arbitrator receives money, property, or other material benefits from a disputing
đ) The arbitral award infringes the fundamental principles of Vietnamese law.”
Court’s control through
considering the request of setting aside the award
2. The court’s control over arbitration LCA art. 49. para. 5.
“If the arbitral tribunal gives provisional emergency measures different from those requested by the requesting party or in excess of this request, causing damages to the requesting party, the party against whom the measures are applied, or a third party, the damaged party has the right to file a lawsuit to court to request compensation in accordance with the law on civil proceedings”.
Court’s control through holding arbitrator’s liability for damages
causing from execution of a provisional
emergency order
THANK YOU CÁM Ơ N
Dr. Nguyen Thi Hoa
Lecturer at international law faculty
Ho Chi Minh City University of Law, Viet Nam Email: [email protected]