DISPUTE RESOLUTION, PAGE 5
ARBITRATION
15. Is the arbitration law based on the UNCITRAL Model Law?
No.
16. What are the main national arbitration institutions?
Pursuant to the Ordinance on Commercial Arbitration which became effective on 1 July 2003 (“Arbitration Ordinance”), and which replaced previous legislation governing the operation of arbitration institutions in Vietnam, arbitration in Vietnam must now be conducted by ‘Arbitration Councils’ organised either by officially licensed local Arbitration Centres, or by the parties themselves.
17. Are there any restrictions on who may represent the parties to an arbitration?
No. The parties, whether Vietnamese or foreign, may represent themselves in an arbitration or be represented by an authorised person, whether or not legally qualified. Parties may also invite witnesses.
18. What are the formal requirements for an enforceable arbitration agreement?
The parties to the dispute must have agreed in ‘writing’ prior to the dispute, or after it arises, that such dispute would be settled by recourse to arbitration. In ‘writing’ includes mail, telegrams, telex, fax, electronic e-mail5 or other written forms which clearly express the will of the parties to settle their disputes through arbitration. The arbitration agreement, whether an arbitration clause in a contract or a separate agreement, must clearly state the institution competent to settle the dispute, be signed by authorised signatories of the parties and be entered into without intimidation or cheating. The dispute must also arise from commercial activities, which is defined as “one or many commercial acts by business individuals or organizations” (including the sale and purchase of goods, distribution, agency, leasing, financing, insurance etc).
19. Can the Court refuse to stay litigation if there is a valid arbitration clause?
No. The Court must stay litigation unless the arbitration agreement is invalid.
20. If the arbitration agreement and any relevant rules are silent, how many arbitrators will be appointed, and who is the appointing authority?
Where the parties have agreed that the dispute be settled by an Arbitration Council set up through an Arbitration Centre but have failed to agree on the number of arbitrators, three arbitrators will be appointed - the claimant appoints one arbitrator when making the claim to the Arbitration Centre, the respondent appoints one arbitrator within 30 days from the date of receipt of the claim (or, if it fails to do so, the President of the Arbitration Centre will appoint one arbitrator on its behalf), and the two appointed arbitrators will jointly appoint a third arbitrator to act as Chairman (or, if they fail to do so, the President of the Arbitration Centre will appoint a third arbitrator as Chairman).
Where the parties have agreed that the dispute be settled by an Arbitration Council set up by the parties independently but have failed to agree on the number of arbitrators, three arbitrators will be appointed - the claimant appoints one arbitrator when making the claim, the respondent appoints one arbitrator within 30 days from the date of receipt of the claim (or, if it fails to do so, the claimant may request the local provincial Court where the respondent is headquartered or resides, to appoint an arbitrator on its behalf), and the two appointed arbitrators will jointly appoint a third arbitrator to act as Chairman (or, if they fail to do so, either party may request the same local Court to appoint a third arbitrator as Chairman).
5In practice, electronic signatures are not generally accepted as being in written form and so relying on the same would be inadvisable.
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