Chuyên đề giải quyết tranh chấp xây dựng – Luật sư Lê Nết

Nội dung của Chuyên đề giải quyết tranh chấp xây dựng do Tiến sĩ Luật Lê Nết soạn thảo xoay quanh các vấn đề chính:

  1. HỢp đồng xây dựng theo Nghị định 37/ 2015
  2. Các loại tranh chấp trong xây dựng
  3. Nguyên nhân tranh chấp
  4. Giải pháp

Xem và tải bản đầy đủ tại Chuyên đề giải quyết tranh chấp xây dựng_LS. Lê Nết

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Arbitration procedures and practice in Vietnam: overview

This article is our publication from Global Guide 2014/15 – ARBITRATION by Practice Law (A Thomson  Reuters Legal Solution). This section is written by Dr. Le Net –  Partner of LNT & Partners

A Q&A guide to arbitration law and practice in Vietnam

The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts’ willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim.

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Use of arbitration and recent trends

1. How is commercial arbitration used in your jurisdiction and what are the recent trends?

In recent years arbitration in Vietnam has gained momentum and is becoming an increasingly attractive method of resolving domestic and international disputes. Parties tend to prefer the private nature of the proceedings and the ability to decide on important issues, including the arbitrators, choice of law, venue and language. Relevant statistics for 2013 revealed that 4% of all disputes In Vietnam were resolved by arbitration.

An overwhelming majority of the cases involve the sale of goods (60%), relying on data from the largest and most commonly used local arbitration administrator in Vietnam, the Vietnam International Arbitration Centre (VIAC). However, a growing number of claims relate to other economic sectors such as banking and finance, construction, distribution, investments, outsourcing and services.

Recent trends

Foreign companies have used arbitration for quite some time, but recent statistics show that local companies are increasingly relying on arbitration as the preferred choice for dispute resolution. A leading indicator is the 55% increase year-on-year in cases settled by VIAC in 2013. The VIAC handled 99 cases in 2013 and 124 cases in 2014 (an increase of 25%). The majority of cases are settled in Ho Chi Minh City. Domestic arbitrations count for 58.9% while international arbitrations count for 41.1%. On average, an arbitration lasts for 167 days, with the shortest case taking 81 days and the longest case extending 251 days. Out of 124 cases, the following statistics demonstrate that the VIAC arbitration is now becoming increasingly recognised internationally:

  • Cases that apply applicable foreign laws: four.

  • Cases that apply foreign languages: 25.

  • Cases where arbitrators send dissenting or separate opinions: five.

  • Cases that have the involvement of lawyers: 66 out of 124.

  • Cases that request for courts to apply interim measures: 14.

  • Cases that request for the tribunal to apply interim measures: two.

Arbitration clauses are now becoming a necessity in virtually all contracts.

Another positive trend is the increased involvement of local Vietnamese attorneys acting as arbitrators. The valuable experience local attorneys gain from representing clients in arbitral disputes have translated into a larger pool of qualified local attorneys who can credibly act as arbitrators in both complex cross-border and domestic arbitration proceedings. This will help bolster and continue to elevate arbitration as the preferred dispute resolution mechanism in Vietnam.

Advantages/disadvantages

There are many advantages to using arbitration over court litigation. In addition to the near universal advantages experienced in other jurisdictions (for example, final resolution on the merits, privacy, quicker resolution, and ability to select the language and venue).

One key advantage arbitration offers is the ability for parties to preselect the lex causae (that is, the law governing the merits of the dispute). This is unless the underlying dispute is wholly a domestic affair. In contrast, litigants in Vietnamese courts must exclusively rely on Vietnamese law. Testimony on foreign law in Vietnamese court proceedings is currently not allowed. The ability to choose the substantive law allows the parties to better manage their risks, selecting and applying laws that cover potential issues specific to their commercial relationship.

Another key advantage is the ability to select qualified and impartial arbitrators. Vietnam’s corruption rankings are among the worst in the world and judicial bribery remains a major concern.

Finally, because Vietnam is a signatory to the New York Convention, arbitral awards are recognised and enforceable in more countries, including Vietnam, compared to court judgments, which are recognised on a reciprocal basis making the enforcement of foreign judgments more difficult.

While arbitration offers many benefits, the enforcement of arbitral awards in Vietnam remains challenging. The grounds for setting aside awards can be interpreted broadly when compared to the arbitration enforcement laws and practices of other countries.

Use of commercial arbitration

Legislative framework

Applicable legislation

2. What legislation applies to arbitration? To what extent has your jurisdiction adopted the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Law)?

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) governs arbitrations conducted in Vietnam. Resolution No. 01/2014/NQ-HDTP (Resolution No.01), issued by the Supreme Court of Vietnam, provides further guidance on the implementation of certain provisions of the LCA.

The LCA refers significantly to the UNCITRAL Model Law and incorporates many important legal concepts, including a:

  • Tribunal’s ability to summon witnesses.

  • Party’s right to request, and a tribunal’s corresponding ability to grant, interim relief.

The Law on Enforcement of Civil Judgments (LECJ) controls the enforcement of arbitral awards and the Civil Procedure Code 2004 (CPC) governs the recognition and enforcement of foreign awards in Vietnam.

Mandatory legislative provisions

3. Are there any mandatory legislative provisions? What is their effect?

Most provisions in the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) are not mandatory. The LCA allows the parties to freely decide many critical issues that govern the arbitral proceedings. However, there are some mandatory legislative requirements, including:

  • The arbitral award is final and binding.

  • The arbitration agreements must be in writing.

  • The subject matter of the arbitration must involve at least one party engaged in commercial activity (commercial is defined as a profit-making activity, for example, the sale of goods, services, investments and trade promotion) and cannot belong in the exclusive jurisdiction of court litigation.

  • Vietnamese laws apply when the underlying dispute does not involve any foreign element.

  • The arbitral tribunal must, as a threshold, decide its jurisdiction by determining the validity and subject matter of an arbitration agreement.

  • Arbitrators must be independent, objective, impartial and observe the law.

The cumulative effect of the mandatory provisions is a strong legal system generally in favour of arbitration. This reduces the “bottleneck” effect caused by threshold issues that typically plague other jurisdictions, that is, the validity and scope of arbitration provisions.

Limitation

4. Does the law of limitation apply to arbitration proceedings?

The statute of limitations to institute arbitration proceedings is typically two years from the date that a claimant has the right to take legal action. This is with the following two exceptions:

  • The statute of limitations for insurance contracts is three years from when the dispute arises (Article 30, Law on Insurance Business 2000).

  • The statute of limitations for damages with respect to cargo is one year from the date on which the cargo is delivered or should have been delivered to the consignee (Article 97, Vietnam Maritime Code).

The statute of limitations to enforce a foreign arbitral award is one year from the date the award becomes final.

Arbitration organisations

5. Which arbitration organisations are commonly used to resolve large commercial disputes in your jurisdiction?

The Vietnam International Arbitration Centre (VIAC) is the largest arbitration organisation in Vietnam. However, there are a number of arbitration centres, including:

  • The Asean International Commercial Arbitration Centre (ACIAC).

  • The Financial and Commercial Centre for Arbitration (FCCA).

  • The Pacific International Arbitration Centre (PIAC).

See box, Main arbitration organisations.

Arbitration agreements

Validity requirements

6. What are the requirements for an arbitration agreement to be enforceable?

Substantive/formal requirements

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) only requires that an arbitration agreement be in writing and contain language that establishes the mutual consent of the parties to resolve their dispute by arbitration. The written requirement can be satisfied in different ways and can take various forms, including the following:

  • An agreement made through communications between the parties via telegram, fax, telex, email or other forms prescribed by law.

  • An agreement made through the exchange of written information between the parties.

  • An agreement recorded in writing by a lawyer, notary public, or competent institution at the request of the parties.

  • A document such as a contract, company charter or other similar document, which contains an arbitration agreement, and referenced by the parties during the course of their transaction.

  • An agreement made through an exchange of statements of claims and defences that reflect the existence of an agreement proposed by a party and not denied by the other party.

Separate arbitration agreement

An arbitration agreement can be made in the form of an arbitration clause contained in a contract or in the form of a separate agreement.

Unilateral or optional clauses

7. Are unilateral or optional clauses, where one party has the right to choose arbitration, enforceable?

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) does not address unilateral or optional clauses. However, in theory if one party confers another party the right to arbitrate this may be sufficient to establish an agreement to arbitration.

In the context of consumer services and goods, arbitration cannot be unilaterally imposed through the provider’s general terms and conditions. Consumers can elect to litigate in court or arbitrate the dispute.

Separability

8. Does the applicable law recognise the separability of arbitration agreements?

An arbitration agreement is entirely independent of the contract where it is contained. Any modification, extension, cancellation, invalidation or non-performance of the underlying contract will not invalidate the arbitration agreement.

Breach of an arbitration agreement

9. What remedies are available where a party starts court proceedings in breach of an arbitration agreement or initiates arbitration in breach of a valid jurisdiction clause?

Court proceedings in breach of an arbitration agreement

A court will refuse to accept a case involving a dispute that is subject to a valid arbitration agreement. A party’s participation in a court proceeding does not act as a waiver of the party’s right to arbitrate the matter.

Arbitration in breach of a valid jurisdiction clause

If the parties did not agree to arbitrate, but instead agreed to resolve all disputes in court under a valid jurisdiction clause, the arbitration cannot proceed. If the scope of the jurisdiction clause is limited to certain matters, the parties can theoretically either waive the jurisdiction clause or agree to arbitrate matters not within the scope of the jurisdiction clause.

10. Will the local courts grant an injunction to restrain proceedings started overseas in breach of an arbitration agreement?

There are no regulations that specifically allow a local court to grant an injunction restraining judicial proceedings initiated overseas in breach of a valid arbitration agreement. The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) simply directs a court to refuse to accept cases that are subject to arbitration and allows a court to decide whether a matter is subject to arbitration.

However, the LCA does allow a tribunal the power to prohibit or force a party from taking any action that may adversely affect the arbitral proceedings.

Joinder of third parties

11. In what circumstances can a third party be joined to an arbitration or otherwise be bound by an arbitration award?

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) does not contain any provision allowing the involuntary joinder of non-signatory third parties to an arbitration proceeding. However, a third party (with the consent of all parties) may theoretically voluntarily join the arbitration as a co-applicant or co-respondent.

A third party may nevertheless be bound by an arbitral award if the party is a party to another contract whose validity or enforceability is dependent on the contract that is subject to arbitration. For example, an award from a loan agreement containing a valid arbitration agreement can affect the guarantor of the loan. Similarly, an agent can theoretically bind the non-signatory principal.

Arbitrators

Number and qualifications/characteristics

12. Are there any legal requirements relating to the number and qualifications/characteristics of arbitrators?

An arbitral tribunal can be composed of one or more arbitrators as agreed by the parties.

Under the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) a person who satisfies all the following criteria can act as an arbitrator:

  • Has the legal capacity to act under the Civil Code.

  • Possess a university degree and at least five years’ of work experience in the discipline studied.

  • In special cases, an expert who has highly specialised skills or qualifications can also be selected as arbitrator even if he does not have the requisite education and work experience.

The following cannot act as arbitrators:

  • Incumbent judges, procurators, investigators, enforcement officers or civil servants of the people’s courts, people’s procuracy, investigative agencies or judgment enforcement agencies.

  • Persons serving criminal sentences or whose criminal records have not yet been cleared even though they have served their sentences.

Independence/impartiality

13. Are there any requirements relating to arbitrators’ independence and/or impartiality?

An arbitrator must be independent and impartial, with the ability to quickly and promptly settle disputes.

Appointment/removal

14. Does the law contain default provisions relating to the appointment and/or removal of arbitrators?

Appointment of arbitrators

Under Article 40 of the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) the parties are free to agree on the procedure for the appointment of the arbitrator(s). In cases where the parties agree that their dispute will be settled by a sole arbitrator, the claimant must state the name and address of the person whom the claimant selects as arbitrator. Unless otherwise agreed by the parties, within 30 days after receiving the claimant’s statement of claims, the parties must agree on the selection of a sole arbitrator or request the Arbitration Centre to appoint a sole arbitrator, within 30 days after receiving the claimant’s statement of claims (unless otherwise agreed by the parties). A competent court can, at the request of any party, designate a sole arbitrator.

Removal of arbitrators

An arbitrator is disqualified and can be removed in the following circumstances (Article 42.1, LCA):

  • The arbitrator is a relative or representative of one party.

  • The arbitrator has an interest related to the dispute.

  • There are clear grounds to conclude that the arbitrator is not impartial or objective.

  • The arbitrator was a conciliator, representative, or lawyer of one party before the dispute was brought to arbitration for settlement (unless the parties consented in writing to waive such a potential conflict).

Procedure

Commencement of arbitral proceedings

15. Does the law provide default rules governing the commencement of arbitral proceedings?

There are no laws that provide default rules governing the commencement of arbitral proceedings. When a dispute is settled by an arbitration centre, the time of commencement of arbitral proceedings is the time the arbitration centre receives the claimant’s statement of claims (unless otherwise agreed to by the parties)

In contrast, when a dispute is settled by ad hoc arbitration, the time of commencement of arbitral proceedings is the time the defendant receives the claimant’s statement of claims (unless otherwise agreed to by the parties).

Applicable rules

16. What procedural rules are arbitrators likely to follow? Can the parties determine the procedural rules that apply? Does the law provide any default rules governing procedure?

Applicable procedural rules

The parties are free to decide the applicable procedural rules. Arbitrators must respect the agreement of the parties if the procedural rules do not contravene any legal prohibitions or social ethics. If the parties do not specify procedural rules for the arbitrators to follow, arbitrators are likely to resort to the rules of the arbitration centre administering the arbitration.

Default rules

If the parties cannot agree on the governing procedure, the tribunal will decide the procedures, subject to the rules of the arbitration centre administering the case.

Arbitrator’s powers

17. What procedural powers does the arbitrator have under the applicable law? If there is no express agreement, can the arbitrator order disclosure of documents and attendance of witnesses (factual or expert)?

Under Article 49 of the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) a tribunal has the right to apply interim injunctive relief based on a party’s request. The Civil Judgment Enforcement Authority will assist in carrying out the orders of a tribunal.

In addition, under Article 46 and Article 47 of the LCA, an arbitrator has the right to request that other organisations or individuals provide evidence or witness statements. However, in the case of non-cooperation, the tribunal can only request assistance from a competent court.

Evidence

18. What documents must the parties disclose to the other parties and/or the arbitrator? How, in practice, does the scope of disclosure compare with disclosure in litigation? Can the parties determine the rules on disclosure?

Scope of disclosure

Parties have the obligation to provide documents in support of their claims and establish facts relevant to the issues under dispute (Article 46, Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA)). However, there are no specific laws obliging the parties to provide any documents. In the event a party does not disclose supporting documents, there is no administrative or criminal sanction, but the party’s arguments can be severely undermined and not accepted by the tribunal.

There is no difference between disclosure in arbitration and litigation. Vietnam does not have any laws permitting party discovery. A tribunal can request the parties to provide evidence, but parties must make any request for evidence through a court or tribunal. There is no guarantee that a court or tribunal will accept a request. If a party refuses to provide evidence, there is nothing a tribunal can do. A party can seek court intervention, but the outcome is not predictable.

Parties’ choice

There are no provisions under the LCA that allow or disallow the parties to agree to what documents or information will be disclosed by either side.

Confidentiality

19. Is arbitration confidential?

Arbitration proceedings are confidential under the Article 4 and 21 of the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA).

Courts and arbitration

20. Will the local courts intervene to assist arbitration proceedings?

Any competent court in Vietnam can intervene, at a party’s request, to assist arbitration proceedings. A competent court has the powers to order any of the following:

  • Appoint an arbitrator in an ad-hoc arbitration.

  • Replace an arbitrator in an ad-hoc arbitration.

  • Decide the validity and scope of arbitration agreements.

  • Assist in the collection of evidence.

  • Apply interim injunctive relief.

  • Summon witnesses.

21. What is the risk of a local court intervening to frustrate the arbitration? Can a party delay proceedings by frequent court applications?

Risk of court intervention

A party can frustrate or delay the arbitration proceedings with frequent court applications. However, any request for court intervention must comply with relevant laws. For example, a party can dispute the validity and scope of an arbitration agreement. If the party fails, the party can later challenge the appointment of an arbitrator, the mode of collecting evidence or later request an arbitral award be cancelled on applicable grounds. If there is a legal basis for the request, a party cannot be prevented from seeking judicial intervention.

Delaying proceedings

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) prohibits the parties from delaying the proceedings (that is, providing claims and defences, disclosing supporting documents and witnesses in an untimely manner). In the event a party seeks judicial intervention, the arbitral proceedings will continue until and unless a court issues a decision that requires the arbitration to cease temporarily or permanently.

22. What remedies are available where one party denies that the tribunal has jurisdiction to determine the dispute(s)? Does your jurisdiction recognise the concept of kompetenz-kompetenz? Does the tribunal or the local court determine issues of jurisdiction?

A party can raise the lack of jurisdiction argument with the tribunal or a competent court under the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA). Vietnam laws recognise the concept of competence-competence, even requiring the tribunal to first decide its jurisdiction. This power is not exclusive and can be reviewed by a competent court, whose decision is final and binding on the parties and the tribunal.

The arbitral proceedings continue until the court decides that there is no valid arbitration agreement or limits the subject matter subject to arbitration.

Remedies

23. What interim remedies are available from the tribunal?

Security

The tribunal can award security, resorting to the rules of the administering body (if applicable) (Article 34, Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA)).

Other interim measures

The tribunal can order the following interim measures or interim injunctive relief (Article 49, LCA):

  • Prohibit any change in the status of assets under dispute.

  • Prohibit or force a party to take action that would prevent the proceedings from being adversely affected.

  • Seize assets under dispute.

  • Order the preservation, storage, sale or disposal of any asset under dispute.

  • Request temporary monetary payment between the parties.

  • Prohibit the transfer of assets under dispute.

24. What final remedies are available from the tribunal?

The tribunal has broad powers to award appropriate remedies, such as damages, injunctions, declarations, costs and interest. However, the remedies must have been specifically requested by a party and not be contrary to the fundamental principles of Vietnamese law. Remedies that are immoral, illegal or manifestly unreasonable, including excessive punitive or exemplary damages, may be deemed to contravene fundamental principles of Vietnamese law.

Appeals

25. Can arbitration proceedings and awards be appealed or challenged in the local courts? What are the grounds and procedure? Can the parties effectively exclude any rights of appeal?

Rights of appeal/challenge

The parties in an arbitration proceeding have the right to challenge and cancel an unfavourable award by lodging a petition with a local competent court (setting aside the award). An award cannot be appealed, that is, the merits of the underlying dispute cannot be re-adjudicated.

Grounds and procedure

A party must lodge a request to cancel an adverse award with a competent court within 30 days of receipt of the award. The merits of the dispute cannot be re-litigated. The aggrieved party can only request the court to review and cancel the award on the following grounds:

  • Whether there exists a valid arbitration agreement.

  • Whether the subject matter decided by arbitration falls within the jurisdiction of the arbitral tribunal.

  • Whether the arbitral tribunal was properly convened and whether the arbitration proceedings followed applicable procedures.

  • Whether the evidence was properly submitted.

  • Whether the arbitral tribunal was objective and impartial.

  • Whether the award contravenes fundamental principles of Vietnam law.

Recently there is an alarming trend of awards being set aside. Some of the awards are set aside on the grounds that there was no arbitration agreement, or that pre-arbitration negotiations were not exhausted. Some awards are set aside because it is contrary to the fundamental principles of Vietnam law, such as the principle of pacta sunt servanda (or the principle of objectivity).

This trend is a growing concern because court decisions setting aside arbitral awards are not usually subject to revision or appeal. There is a possibility that the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) may be amended to address this shortcoming and allow court decisions to be appealed and/or revised.

Excluding rights of appeal

There is no right to appeal arbitral awards. However, the grounds to set aside an award can be considered waived if not properly reserved. Under Article 13 of the LCA, one party waives its rights to protest violations of the LCA, if during the arbitration proceedings the perceived violations were not properly raised. However, this Article does not apply if the award contravenes fundamental principles of Vietnamese law.

26. What legal fee structures can be used? Are fees fixed by law?

There are no prohibitions on the type of fee structures that can be charged by lawyers representing parties in arbitration proceedings.

27. Does the unsuccessful party have to pay the successful party’s costs? How does the tribunal usually calculate any costs award and what factors does it consider?

Cost allocation

The unsuccessful party must pay the arbitration costs (not lawyer fees) unless otherwise agreed to by the parties or ordered by the tribunal (Article 34, Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA)).

Cost calculation

The LCA defines arbitration costs as the:

  • Remuneration paid to the arbitrators.

  • Travel and other expenses incurred by the arbitrators.

  • Consultation of expert witnesses or other assistance requested by the arbitrators.

  • Cost of administering the arbitration and other services provided by the arbitration centre.

The costs usually correspond with the amount of dispute, and not with the time spent by the arbitrators.

Factors considered

The LCA allows the tribunal to allocate the costs between the parties, but in general the losing party bears the costs.

Enforcement of an award

Domestic awards

28. To what extent is an arbitration award made in your jurisdiction enforceable in the local courts?

A domestic arbitration award is fully enforceable, unless there are grounds for cancellation. The award creditor can request the provincial civil judgment enforcement authority where the award was issued to execute the award. In the case of an ad hoc arbitration award, the award creditor must first register the award with a competent court before requesting the civil judgment enforcement authority to carry out the award.

29. Is your jurisdiction party to international treaties relating to recognition and enforcement of foreign arbitration awards, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention)?

Vietnam has been a member of the New York Convention since 1995. Vietnam made four reservations at the time of agreement:

  • The New York Convention applies to contracting states.

  • The New York Convention applies to non-contracting states on the basis of reciprocity.

  • The New York Convention will be applied only to commercial disputes as determined under the laws of Vietnam.

  • The interpretation of the New York Convention before Vietnamese courts or competent authorities must be in accordance with the Constitution and the law of Vietnam.

30. To what extent is a foreign arbitration award enforceable in your jurisdiction?

To enforce a foreign award in Vietnam (including from the UK and the US) a party must first file a petition with the Ministry of Justice (MOJ) in the country’s capital, Hanoi (along with the award and relevant documents). The MOJ reviews the documents for compliance with procedural requirements and then transfers the documents to a competent court. The competent court then notifies the award debtor and the public prosecutor before considering the petition.

The grounds for refusing recognition and enforcement are those set out in Article V of the New York Convention and Article 370 of Vietnam’s Civil Procedure Code.

Length of enforcement proceedings

31. How long do enforcement proceedings in the local court take, from the date of filing the application to the date when the court makes its final order? Is there an expedited procedure?

The award debtor has 30 days after compliance is required to satisfy the award. If the award is not satisfied, the award creditor can request a competent enforcement agency to enforce the award after it has become final.

In contrast, the procedure for the recognition and enforcement of foreign arbitral awards is more time consuming. It can take one to two years from the date of submission to receive a final order. This is despite the approximate timeline of five months provided in the Civil Procedure Code 2004 (CPC) from the time the petition is first lodged with the Ministry of Justice until a final decision is rendered by the Supreme Court.

Reform

2. Are any changes to the law currently under consideration or being proposed?

Amendments to the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) are currently under consideration to reduce the risk of awards being set aside. The discussions are very preliminary and no changes are expected in the coming year.

The Supreme Court has issued a Resolution and an Official Letter that clarify the grounds to set aside foreign arbitral awards. Resolution 01 was made effective on 01 July 2014. In addition to clarifying the grounds to cancel foreign arbitration awards, Resolution 01 reaffirms the jurisdiction of Vietnamese courts to issue interim injunctive relief. Official Letter No. 246/TANDTC-KT was sent to all provincial level courts in Vietnam, providing guidance on the application of the New York Convention with respect to foreign arbitral awards. Specifically, the Letter reminds the lower courts to apply the substantive laws and arbitration rules selected by the parties and not the Vietnamese Civil Procedure Code.

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Main arbitration organisations

Vietnam International Arbitration Centre (VIAC)

Main activities. The VIAC is responsible for resolving commercial, construction and financial disputes

Wwww.viac.org.vn

The Financial and Commercial Centre for Arbitration (FCCA)

Main activities. The FCCA is responsible for resolving financial, construction and investment disputes

Wwww.fcca.org.vn

The Asean International Commercial Arbitration Centre (ACIAC)

Main activities. The ACIAC resolves commercial disputes

Wwww.aciac.com

The Pacific International Arbitration Centre (PIAC)

Main activities. The PIAC resolves commercial disputes

Wwww.piac.com.vn

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 Online resources

Office of National Assembly

W www.vietlaw.gov.vn

Description: The website is provided by the Office of National Assembly. It provides Vietnamese versions of soft copies of the constitution, laws, ordinances, decrees, circulars and other sub-law documents.

W www.thuvienphapluat.vn

Description: The website is unofficial, but the largest provider of English-language translation of Vietnamese laws.

W www.vietnamlawinsight.com

Description. This is a legal blog run by LNT & Partners that has insight reviews and connects between the facts and the laws (including arbitration).

W www.vietnamlaws.com

Description. This is a law blog run by Allens Linklaters, which provides a subscription database of Vietnam law in English.

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Contributor profiles

Le Net, Partner, VIAC Arbitrator

LNT & Partners

T + 84 83 8212 357
F + 84 80 9103733
E net.le@LNTPartners.com
W www.LNTpartners.com

Professional qualifications. Vietnam, Attorney at Law.

Areas of practice. Infrastructure; financial services; dispute resolutions.

Non-professional qualifications. Lecturer, Ho Chi Minh City University of Law.

Recent transactions

  • Acting for the employer in a US$150 million ICC construction arbitration on the Saigon River Tunnel and East West Highway.
  • Advising the employer on the US$2.7 billion Metro Line No 2 Ho Chi Minh City
  • Advising the lenders in a US$345 million oil and gas project finance.

Languages. English, Vietnamese, Polish, French.

Professional associations/memberships. Vietnam International Arbitration Centre, Arbitrator. Drafting Committee, Principles of Asian Contract Law.

Publications.

  • Vietnam Contract Law, International Encyclopaedia of Laws, Kluwer Law International, Boston (1ST Edition, 1999, 2ND Ed 2012, 3RD Ed 2014).
  • Vietnam Corporate and Partnership Law, International Encyclopaedia of Laws (co-author), Kluwer Law International, Boston (1ST Ed 2012, 2ND Ed 2014).
  • Vietnam Intellectual Property Law, International Encyclopaedia of Laws (co-author), Kluwer Law International, Boston (1ST Ed 2012, 2ND Ed 2014).

Please refer for PDF by clicking the link HERE or HERE.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This article is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact the author Net Le at (net.le@LNTpartners.com) or visit the website: Http://LNTpartners.com

Enforcement of Contracts in Vietnam and the Risks of Bilateral Investment Treaty (BIT) Disputes

We are pleased to introduce to you our newest publication on Enforcement of Contracts in Vietnam which will be published in the Gakushuin Journal of International Studies on March 2016. This article is written by Dr. Le Net, Dr. Nguyen Thi Kim Vinh and Mr. Joseph McDonnell from LNT & Partners.

This article provides an acute analysis of the structural and procedural provisions of the frameworks for contract enforcement in Vietnam, addressing both domestic and foreign transactional disputes and the key issues associated with these. The link between Doi Moi, and consequential integration with the international economy and the influence of collective interests stipulated in the Constitution are discussed in this article, and we also consider examples from other jurisdictions to provide both insight and an understanding into this relationship that defines contract enforcement in Vietnam.

The first section provides a foundation for the analysis of contracts enforcement, discussing the cultural, political, and judicial roles that influence the provisions for contract enforcement in Vietnam. The second section discusses the key aspects of contract enforcement in Vietnam. The legal provisions for dispute resolution are discussed in this section, and both domestic and foreign contract enforcement frameworks are discussed, along with the practical issues related to both. The final section moves onto foreign disputes in Vietnam that fall under the jurisdiction of BITs, and addresses the key issues related to this from the Vietnamese perspective, and also through the lens of case studies as comparative examples.

Please refer for full article by clicking the link HERE.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This article is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact the author Net Le at (net.le@LNTpartners.com) or visit the website: Http://LNTpartners.com

LNT & Partners to win the title of National Law Firm of the Year for premiere Asia-Pacific Dispute Resolution Awards 2015

Asialaw Profiles, one of the most reputable legal publications in Asia and a daughter company of Euromoney Legal Media Group, has conducted an inaugural research for the law firms with dispute resolution practice. The research employs an intensive and independent methodology to assess and rank dispute lawyers as well as law firms, to provide an unbiased assessment on the legal prowess of such lawyers and law firms. On September 2015 at Ritz-Carlton Hotel in Hong Kong, an award ceremony took place to award such outstanding lawyers and law firms.

LNT & Partners is proud to announce that the firm is the winner of ‘National Law Firm of the Year’ for Vietnam, standing among the other prestigious and reputable law firms of other regions such as Mori Hamada & Matsumoto in Japan, King & Wood Mallesons in China, Kim & Chang in Korea and Drew & Napier in Singapore, to name a few.

Asialaw Asia-Pacific Dispute Resolution Awards 2015

In addition, for individual dispute lawyers, LNT & Partners would like to congratulate Dr. Thi Kim Vinh Nguyen for being a winner of Disputes Star of the Year. Dr. Vinh Nguyen is one of the co-lead partners for the firm’s Dispute Resolution Practice with Mr. Su Tran and is known for her profound knowledge and experience in representing clients in both courts and arbitrations.

Commenting on the firm’s and Dr. Nguyen’s achievements in the award, Ms. Quyen Hoang, the managing partner, says, “LNT & Partners is grateful to have won the award and would like to congratulate Dr. Nguyen for her winning the title. The firm would like to express a sincere appreciation for continued support and trust from our clients and promise to further our efforts in providing professional legal services to our clients”.

For the full list of winners, please visit: Asialaw Asia-Pacific Dispute Resolution Awards 2015

Công bố toàn văn Hiệp định Đối tác xuyên Thái Bình Dương (TPP)

(MOIT) – Theo thông lệ đàm phán thương mại quốc tế, một hiệp định sẽ chỉ được công bố sau khi các Bên tham gia đàm phán đã hoàn tất thủ tục rà soát pháp lý. Tuy nhiên, trước nhu cầu tìm hiểu thông tin rất lớn của người dân và doanh nghiệp, các nước tham gia đàm phán Hiệp định Đối tác xuyên Thái Bình Dương (TPP) đã quyết định công bố toàn văn Hiệp định TPP mặc dù thủ tục rà soát pháp lý vẫn chưa hoàn tất.

Các nước TPP đã thống nhất giao Niu Di-lân (nước được giao nhiệm vụ lưu chiểu văn kiện của Hiệp định) công bố toàn văn Hiệp định vào chiều ngày 05 tháng 11 năm 2015 (giờ Hà Nội).

Bộ Công Thương xin trân trọng công bố toàn văn Hiệp định TPP (bản tiếng Anh) đã được các nước TPP thống nhất. Do quá trình rà soát pháp lý vẫn đang tiếp tục nên bản công bố lần này chưa phải là bản cuối cùng. Bản cuối cùng có thể sẽ có một số thay đổi nhưng chỉ là các chỉnh sửa về mặt kỹ thuật, không ảnh hưởng đến nội dung cam kết.

Ngoài các nội dung cam kết trong Hiệp định, trong quá trình đàm phán các nước TPP cũng đạt được một số thỏa thuận song phương. Do các thỏa thuận này chỉ liên quan đến các Bên ký kết nên sẽ được các Bên ký kết công bố riêng. Bộ Công Thương xin công bố kèm theo đây các thỏa thuận song phương mà Việt Nam đã thống nhất với một số nước TPP. Các thỏa thuận này sẽ có hiệu lực cùng thời điểm với Hiệp định TPP.

Do các nước TPP vẫn đang tiến hành thủ tục rà soát pháp lý, khối lượng tài liệu phải biên dịch lại rất lớn nên Bộ Công Thương và các Bộ, ngành chưa thể công bố kèm theo bản dịch tiếng Việt của Hiệp định TPP. Để đáp ứng yêu cầu của người dân và doanh nghiệp, Bộ Công Thương sẽ tích cực phối hợp với các Bộ, ngành nhanh chóng hoàn tất công việc dịch thuật và công bố bản dịch tiếng Việt trong thời gian sớm nhất.

Sau khi công bố toàn văn Hiệp định, các nước TPP sẽ nhanh chóng hoàn tất thủ tục rà soát pháp lý để chuẩn bị cho việc ký kết Hiệp định. Mỗi nước, theo quy định của pháp luật nước mình, sẽ dành thời gian nhất định để người dân nghiên cứu Hiệp định trước khi ký kết, dao động từ 60 đến 90 ngày. Sau khoảng thời gian này, các nước TPP sẽ tiến hành ký kết chính thức. Thời điểm ký kết chính thức Hiệp định hiện chưa được xác định nhưng dự kiến sẽ không muộn hơn quý I năm 2016. Sau khi ký chính thức, các nước sẽ tiến hành thủ tục phê chuẩn Hiệp định theo quy định của pháp luật nước mình.

Please follow the links for full text of TPP released today.

  1. Chapter Texts and Associated Annexes
  2. Market Access Offers and Country-Specific Annexes
  3. Side Instruments between Viet Nam and TPP countries

 

Specific links

I. Chapter Texts and Associated Annexes

II. Market Access Offers and Country-Specific Annexes

III. Side Instruments between Viet Nam and TPP countries

Theo Website chính thức của Bộ Công Thương

By Vietnam Law Insight

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us at info@LNTpartners.com

Legal briefing October, 2015

Please click here to download our report: Legal Briefing October _ LNTpartners

I. Decree number 84/2015/ND-CP on investment monitoring and evaluation (“Decree 84”)

Sector: Investment_ Enterprise

Effective date: 20 November 2015

Highlights:

Decree 84 clarifies implemented subjects and stipulates the principles of monitoring and evaluation of investment activities. In addition, Decree 78 expands its scope of application, including objects and sorts of monitored investment.

  • As of the effective date, not only investment projects, but also investment programs would be monitored and evaluated;
  • Various kinds of monitored and evaluated investment are supplemented, such as: PPP investment projects; a list of investment programs and projects using State capital- without limiting the minimum capital rate; the offshore direct investment and community evaluation now stipulated in this Decree;
  • The responsibilities of monitoring become an initial part beside the regulations on content of such activities, which are allocated to the investors, authorities and related specialized agencies; and
  • Separated chapters regarding cost and capability of organizations and individuals performing monitoring consultants in evaluation of investment projects are newly stipulated;

Comments/Impacts:

This Decree provides new and innovative detailed guidelines for monitoring and evaluating investment, in comparison to the old Decree No. 113/2009/ND-CP on investment monitoring and evaluation.

Such clearer regulations can practically increase the responsibilities of investors and relevant authorities; also guarantee the effectiveness of monitoring and evaluation activities.

II. Decree No. 83/2015/ND-CP on stipulation of outbound investment (Decree 83)

Sector: Investment_ Enterprise

Effective date: 25 September 2015

Highlights: 

Following the Law on Investment 2014, Decree 83 has been issued to provide detailed guidance for outbound investment activities as follows:

  • Each investment project is granted a project number, which shall be also outbound investment certificate number;
  • Appraisal process is removed. Project registration procedure is divided into 2 types: projects subject to outbound investment policy of the Prime Minister (PM) and projects not subject to outbound investment policy of the PM. Procedure for projects required outbound investment policy of the PM is similar to appraisal process under the Law on Investment 2005. Projects not subject to outbound investment policy shall require confirmation of SBV if their capitals transferring to foreign countries are: (i) in foreign currencies, and (ii) equal to 20 billion VND;
  • Investors are entitled to transfer money, assets to foreign countries to establish investment project before receiving Investment Registration Certificate. However, the value of such money and assets is restricted to be less than 5% of project capital or 300.000 USD (whichever is smaller); and
  • Investors have to report about the implementation of projects quarterly and to more authorities.

Comments/Impacts:

Procedure of registration is simplified and investors can transfer capital and assets to foreign countries before receiving IRC. This shall allow investment projects to be implemented more quickly and effectively.

However, investors are now obliged to frequently report the implementation of the project in writing as well as through online update. This might create more responsibilities for the investors.

III. Decree No. 78/2015/ND- CP dated 14 September 2015 on Enterprise Registration (Decree 78)

Sector: Investment_ Enterprise

Effective date: 1 November 2015

Highlights: 

Decree 78 provides guidelines for enterprise registration procedures under the Law on Enterprise 2014. Some notable points of the Decree are as follows:

  • Online registration is now available. As such, the entire procedures for registering the formation of an enterprise or the changes in enterprise information may be carried out at the National Business Registration Portal (https://dangkyquamang.dkkd.gov.vn).
  • The timeline for enterprise formation registration and for registration of changes in enterprise information is significantly reduced (from 5 to 3 working days).
  • The registrar agency must not request the enterprise to submit additional documents other than registration documents prescribed by laws.

Comments/Impacts:

Decree 78 is expected to significantly remove the administrative burdens from the backs of the investors and enterprises and improve the investment climate of Vietnam

IV. Decree No. 76/2015/ND-CP providing detailed regulations on the implementation of a number of articles of the law on real estate business (Decree 76)

Sector: Real estate

Effective date: 01 November 2015

Highlights: 

Below are some salient points of Decree 76:

  • Legal capital required for real estate trading is minimum VND20 billion for all types of projects. Financial statement or bank acknowledgement is no longer required to prove the financial capacity with respect to the fulfilment of legal capital;
  • Model contracts for key real estate transactions are enclosed in the Decree for the parties to follow; and
  • Regarding transfer of the entirety or part of the project, procedures and detailed forms for application dossier and timeline for the approval process are specified.

Comments/Impacts:

Procedures for registration of the real estate business and project transfer are simplified and less time-consuming

The model contracts, while causing no restriction to freedom of contract, will help reduce disputes in the market.

V. Decree No. 82/2015/ND-CP dated 24 September 2015 regarding visa exemption for Vietnamese people residing overseas and foreigners who are spouses, children of Vietnamese people residing overseas or of Vietnamese citizens (Decree 82)

Sector: Civil

Effective date:15 November 2015

Highlights:

Decree 82 provides detailed guidance for procedures of issuance of visa exemption certificates and its conditions:

  • Regarding conditions for visa exemption, the applicant’s visa or equivalent document must be valid for at least one year;
  • Regarding the format of certificate, it shall be granted in the passport or a detached certificate in some certain circumstances;
  • The competence and processing procedures of authorities are more detailed than before. For example, processing procedure of overseas authority is separated from the Immigration Administration; and
  • The duration of certificate of temporary residence for people using certificates of visa exemption is extended to 6 months.

Comments/Impacts:

Although the processing time stays the same as Decision 135/2007/QD-TTg on the promulgation of the regulation on visa exemption for Vietnamese residing overseas, the procedure is now much clearer for applicants to follow.

The extension of certificate of temporary residence from 90 days to 6 months is considered to be a big support for Vietnamese people residing overseas to come back home country.

VI. Decision No. 41/2015/QD-TTg on selling shares in blocks (Decision 41)

Sector: Governmental management/ Corporate

Effective date: 15 September 2015

Highlights: 

Decision 41 deals with withdrawal of state capital of unlisted public companies from joint-stock companies that have not been listed or registered on Upcom (Hanoi Stock Exchange), the ownership of which is represented by Ministries, ministerial agencies, Governmental agencies , People’s Committees of central-affiliated cities and provinces, state-owned corporations, and companies whose 100% charter capital is held by the State. The striking features of Decision 41 can be summarized as follow:

  • the sales of shares in blocks must be implemented via Stock Exchange by audit method with the following information: number and price of each block, status of investors attending audit, solutions in case of an unsuccessful audit. Each block must not be less than 5% of the company’s charter capital;
  • Starting price of the block, which is determined by a valuation organization, equals to the starting price of a share multiplied by the quantity of shares in a block; and
  • According to the Decision to approve the plan for selling shares in blocks issued by a competent authority and regulations on selling shares in blocks, the owner’s representative agency, the Chairperson of the Board of members, the President of the enterprise shall request the representative to cooperate with Stock Exchange in formulating the enterprise’s own statute on selling shares in blocks.

Comments/Impacts:

Decision 41 sets out a clear procedure and conditions for the withdrawal of the state in joint-stock companies, which is considered to be a concession of the Government in intervening into the market. As a result, a free market without control of the Government is constructed step-by-step.

VII. Decree 79/2015/ND-CP on  penalties for administrative violations against regulations on vocational training (Decree 79)

Sector: Administrative

Effective date: 01 November 2015

Highlights:

Decree 79 provides detailed regulations of administrative fines upon the violations related to: vocational school establishment; organization of vocational education quality control; vocational education organizations, student recruitment, program syllabus, class size, bridge programs and educational association in vocational education; test, examination; issue and utilization of certificates, degrees.

  • The limitation for the maximum fine is maintained at 75,000,000 VND for individuals, 150,000,000 VND for organizations;
  • There are not many changes in the rate of fines imposed on the violation of regulations, except for some certain violations in registration of vocational activities, maintenance of ratio of full-time teachers/ lecturers, and others; and
  • Beside a number actions which are newly added to the scope of administrative fine application, Decree 79 provides more remedial measures applicable to the violators, such as transferring illegal benefits obtained from the violations, cancellation of the decisions on admission, returning collected amounts to learners.

Comments/Impacts:

Financial penalties seem not to be strong enough to prevent individuals and organizations from violating regulations on vocational training. Hence, Decree 79 imposes more intensive preventative measures to violators to enhance the protection for the rights of learners as well as vocational education organization.

VIII. Circular No. 139/2015/ TT –  BTC providing guidance on guarantee for foreign loans on lent by the Government (Circular 139)

Sector: Banking and finance

Effective date: 01 November 2015

Highlights:

Circular 139 provides detailed guidance on the procedures for guarantee of loans, settlement of secured assets, and responsibilities of relevant Parties concerning the  foreign loans on-lent by the Government with the following remarkable regulations:

  • The execution of a guarantee contract depends on the involvement of the Ministry of Finance (MOF). If the MOF directly undertakes on-lending, a credit institution satisfying certain conditions set out by this Circular shall be nominated by the obligor to act on behalf of the Ministry of Finance (MOF) to perform loan guarantee operations. Upon approval by the MOF, a Security Service Agreement shall be executed between the MOF, the obligor and the credit institution.  If the MOF authorizes an on-lending agency to perform on-lending, the loan guarantee contract shall be signed between such agency and the obligor under the scope of on-lending authorization between the MOF and the agency;
  • The total value of secured assets must be equivalent to 100% of the loan; and
  • A loan guarantee contract must be registered with competent authority by the obligor regardless of the secured assets not required to be registered by the laws. If the obligor fails to register, either the disbursement process might be suspended or the total loans might be immediately recovered before the due date.

Comments/Impacts:

Decree 78/2010/ND-CP on on-lending of the Government’s foreign loans took effect as of 2010 with only one article on the loan security causing numerous issues during its implementation. On the other hand, Circular 139 offers solutions for this issue by forming a detailed legal basis for guarantee for foreign loans on-lent by the Government.

IX. Circular No. 15/2015/TT-NHNN guiding foreign currency transactions on foreign currency market for credit institution permitted to make foreign currency transactions (Circular 15)

Sector: Banking and Finance

Effective date: 05 October 2015

Highlights:

Circular 15 replaces a numbers of decisions providing guidance on foreign exchange transaction to regulate the exchange rates, terms, means and documents of the transaction, form of the transacting agreement as well as the responsibility of the authorized credit institutions and departments belonging to the State Bank of Vietnam concerning the foreign exchange transactions.

The most important point of the new Circular is the stipulation on the latest payment date of foreign exchange transactions. Particularly, regarding the spot transaction in swap transaction, the parties could agree on the payment date which is subject to be within two days from the transacting date. Meanwhile, regarding the forward transaction in the swap transaction, the payment date must not be later than the last date of transacting term which lasts from 3 to 365 days from the transacting date.

Comments/Impacts:

Circular 15 shall deter the foreign exchange hoard in financial market.

X. Decree No. 85/2015/ND-CP providing detailed regulation on a number of articles of the Labor Code on policies for female employees (Decree 85)

Sector: Labor

Effective date: 15 November 2015

Highlights:

Decree 85 provides in details state policies on female employees, which requires employers employing multiple female employees to conduct necessary works with the purpose of improving the working conditions, healthcare and also supporting female employees in taking care of their children.

In return, employers may enjoy notable policies as follows:

  • Employers investing in building nurseries, kindergartens and healthcare facilities which meet statutory requirements may be entitled to enjoy incentives under the current policies encouraging socialization in education, occupational training and medical health as provided by the laws, e.g. exemption of land lease fees or corporate income tax incentives (tax rate, tax exemption and reduction);
  • Employers may also be entitled to incentives as stipulated in the Law on Residential Housing if investing in constructing residential housing for employees; and
  • Additional expenses for female employees may be included in deductible expenses for income tax purposes as provided by the laws.

Comments/Impacts:

Decree 85 shows the effort of the Government in encouraging employers to practically ensure and improve working conditions for female employees, through which employers may receive preferential support from the State of Vietnam, by ways of. tax incentives, upon satisfaction of certain conditions stipulated by the laws.

 

By Vietnam Law Insight

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us at info@LNTpartners.com

Arbitration procedures and practice in Vietnam: Overview

A Q&A guide to arbitration law and practice in Vietnam.

The country-specific Q&A guide provides a structured overview of the key practical issues concerning arbitration in this jurisdiction, including any mandatory provisions and default rules applicable under local law, confidentiality, local courts’ willingness to assist arbitration, enforcement of awards and the available remedies, both final and interim.

To compare answers across multiple jurisdictions visit the Arbitration procedures and practice Country Q&A Tool.

This Q&A is part of the global guide to arbitration. For a full list of jurisdictional Q&As visit www.practicallaw.com/arbitration-mjg.

Le Net, LNT & Partners

Use of arbitration and recent trends

1. How is commercial arbitration used in your jurisdiction and what are the recent trends?

Use of commercial arbitration

In recent years arbitration in Vietnam has gained momentum and is becoming an increasingly attractive method of resolving domestic and international disputes. Parties tend to prefer the private nature of the proceedings and the ability to decide on important issues, including the arbitrators, choice of law, venue and language. Relevant statistics for 2013 revealed that 4% of all disputes In Vietnam were resolved by arbitration.

An overwhelming majority of the cases involve the sale of goods (60%), relying on data from the largest and most commonly used local arbitration administrator in Vietnam, the Vietnam International Arbitration Centre (VIAC). However, a growing number of claims relate to other economic sectors such as banking and finance, construction, distribution, investments, outsourcing and services.

Recent trends

Foreign companies have used arbitration for quite some time, but recent statistics show that local companies are increasingly relying on arbitration as the preferred choice for dispute resolution. A leading indicator is the 55% increase year-on-year in cases settled by VIAC in 2013. The VIAC handled 99 cases in 2013 and 124 cases in 2014 (an increase of 25%). The majority of cases are settled in Ho Chi Minh City. Domestic arbitrations count for 58.9% while international arbitrations count for 41.1%. On average, an arbitration lasts for 167 days, with the shortest case taking 81 days and the longest case extending 251 days. Out of 124 cases, the following statistics demonstrate that the VIAC arbitration is now becoming increasingly recognised internationally:

  • Cases that apply applicable foreign laws: four.

  • Cases that apply foreign languages: 25.

  • Cases where arbitrators send dissenting or separate opinions: five.

  • Cases that have the involvement of lawyers: 66 out of 124.

  • Cases that request for courts to apply interim measures: 14.

  • Cases that request for the tribunal to apply interim measures: two.

Arbitration clauses are now becoming a necessity in virtually all contracts.

Another positive trend is the increased involvement of local Vietnamese attorneys acting as arbitrators. The valuable experience local attorneys gain from representing clients in arbitral disputes have translated into a larger pool of qualified local attorneys who can credibly act as arbitrators in both complex cross-border and domestic arbitration proceedings. This will help bolster and continue to elevate arbitration as the preferred dispute resolution mechanism in Vietnam.

Advantages/disadvantages

There are many advantages to using arbitration over court litigation. In addition to the near universal advantages experienced in other jurisdictions (for example, final resolution on the merits, privacy, quicker resolution, and ability to select the language and venue).

One key advantage arbitration offers is the ability for parties to preselect the lex causae (that is, the law governing the merits of the dispute). This is unless the underlying dispute is wholly a domestic affair. In contrast, litigants in Vietnamese courts must exclusively rely on Vietnamese law. Testimony on foreign law in Vietnamese court proceedings is currently not allowed. The ability to choose the substantive law allows the parties to better manage their risks, selecting and applying laws that cover potential issues specific to their commercial relationship.

Another key advantage is the ability to select qualified and impartial arbitrators. Vietnam’s corruption rankings are among the worst in the world and judicial bribery remains a major concern.

Finally, because Vietnam is a signatory to the New York Convention, arbitral awards are recognised and enforceable in more countries, including Vietnam, compared to court judgments, which are recognised on a reciprocal basis making the enforcement of foreign judgments more difficult.

While arbitration offers many benefits, the enforcement of arbitral awards in Vietnam remains challenging. The grounds for setting aside awards can be interpreted broadly when compared to the arbitration enforcement laws and practices of other countries.

Legislative framework

Applicable legislation

2. What legislation applies to arbitration? To what extent has your jurisdiction adopted the UNCITRAL Model Law on International Commercial Arbitration 1985 (UNCITRAL Model Law)?

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) governs arbitrations conducted in Vietnam. Resolution No. 01/2014/NQ-HDTP (Resolution No.01), issued by the Supreme Court of Vietnam, provides further guidance on the implementation of certain provisions of the LCA.

The LCA refers significantly to the UNCITRAL Model Law and incorporates many important legal concepts, including a:

  • Tribunal’s ability to summon witnesses.

  • Party’s right to request, and a tribunal’s corresponding ability to grant, interim relief.

The Law on Enforcement of Civil Judgments (LECJ) controls the enforcement of arbitral awards and the Civil Procedure Code 2004 (CPC) governs the recognition and enforcement of foreign awards in Vietnam.

Mandatory legislative provisions

3. Are there any mandatory legislative provisions? What is their effect?

Most provisions in the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) are not mandatory. The LCA allows the parties to freely decide many critical issues that govern the arbitral proceedings. However, there are some mandatory legislative requirements, including:

  • The arbitral award is final and binding.

  • The arbitration agreements must be in writing.

  • The subject matter of the arbitration must involve at least one party engaged in commercial activity (commercial is defined as a profit-making activity, for example, the sale of goods, services, investments and trade promotion) and cannot belong in the exclusive jurisdiction of court litigation.

  • Vietnamese laws apply when the underlying dispute does not involve any foreign element.

  • The arbitral tribunal must, as a threshold, decide its jurisdiction by determining the validity and subject matter of an arbitration agreement.

  • Arbitrators must be independent, objective, impartial and observe the law.

The cumulative effect of the mandatory provisions is a strong legal system generally in favour of arbitration. This reduces the “bottleneck” effect caused by threshold issues that typically plague other jurisdictions, that is, the validity and scope of arbitration provisions.

Limitation

4. Does the law of limitation apply to arbitration proceedings?

The statute of limitations to institute arbitration proceedings is typically two years from the date that a claimant has the right to take legal action. This is with the following two exceptions:

  • The statute of limitations for insurance contracts is three years from when the dispute arises (Article 30, Law on Insurance Business 2000).

  • The statute of limitations for damages with respect to cargo is one year from the date on which the cargo is delivered or should have been delivered to the consignee (Article 97, Vietnam Maritime Code).

The statute of limitations to enforce a foreign arbitral award is one year from the date the award becomes final.

Arbitration organisations

5. Which arbitration organisations are commonly used to resolve large commercial disputes in your jurisdiction?

The Vietnam International Arbitration Centre (VIAC) is the largest arbitration organisation in Vietnam. However, there are a number of arbitration centres, including:

  • The Asean International Commercial Arbitration Centre (ACIAC).

  • The Financial and Commercial Centre for Arbitration (FCCA).

  • The Pacific International Arbitration Centre (PIAC).

See box, Main arbitration organisations.

Arbitration agreements

Validity requirements

6. What are the requirements for an arbitration agreement to be enforceable?

Substantive/formal requirements

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) only requires that an arbitration agreement be in writing and contain language that establishes the mutual consent of the parties to resolve their dispute by arbitration. The written requirement can be satisfied in different ways and can take various forms, including the following:

  • An agreement made through communications between the parties via telegram, fax, telex, email or other forms prescribed by law.

  • An agreement made through the exchange of written information between the parties.

  • An agreement recorded in writing by a lawyer, notary public, or competent institution at the request of the parties.

  • A document such as a contract, company charter or other similar document, which contains an arbitration agreement, and referenced by the parties during the course of their transaction.

  • An agreement made through an exchange of statements of claims and defences that reflect the existence of an agreement proposed by a party and not denied by the other party.

Separate arbitration agreement

An arbitration agreement can be made in the form of an arbitration clause contained in a contract or in the form of a separate agreement.

Unilateral or optional clauses

7. Are unilateral or optional clauses, where one party has the right to choose arbitration, enforceable?

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) does not address unilateral or optional clauses. However, in theory if one party confers another party the right to arbitrate this may be sufficient to establish an agreement to arbitration.

In the context of consumer services and goods, arbitration cannot be unilaterally imposed through the provider’s general terms and conditions. Consumers can elect to litigate in court or arbitrate the dispute.

Separability

8. Does the applicable law recognise the separability of arbitration agreements?

An arbitration agreement is entirely independent of the contract where it is contained. Any modification, extension, cancellation, invalidation or non-performance of the underlying contract will not invalidate the arbitration agreement.

Breach of an arbitration agreement

9. What remedies are available where a party starts court proceedings in breach of an arbitration agreement or initiates arbitration in breach of a valid jurisdiction clause?

Court proceedings in breach of an arbitration agreement

A court will refuse to accept a case involving a dispute that is subject to a valid arbitration agreement. A party’s participation in a court proceeding does not act as a waiver of the party’s right to arbitrate the matter.

Arbitration in breach of a valid jurisdiction clause

If the parties did not agree to arbitrate, but instead agreed to resolve all disputes in court under a valid jurisdiction clause, the arbitration cannot proceed. If the scope of the jurisdiction clause is limited to certain matters, the parties can theoretically either waive the jurisdiction clause or agree to arbitrate matters not within the scope of the jurisdiction clause.

10. Will the local courts grant an injunction to restrain proceedings started overseas in breach of an arbitration agreement?

There are no regulations that specifically allow a local court to grant an injunction restraining judicial proceedings initiated overseas in breach of a valid arbitration agreement. The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) simply directs a court to refuse to accept cases that are subject to arbitration and allows a court to decide whether a matter is subject to arbitration.

However, the LCA does allow a tribunal the power to prohibit or force a party from taking any action that may adversely affect the arbitral proceedings.

Joinder of third parties

11. In what circumstances can a third party be joined to an arbitration or otherwise be bound by an arbitration award?

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) does not contain any provision allowing the involuntary joinder of non-signatory third parties to an arbitration proceeding. However, a third party (with the consent of all parties) may theoretically voluntarily join the arbitration as a co-applicant or co-respondent.

A third party may nevertheless be bound by an arbitral award if the party is a party to another contract whose validity or enforceability is dependent on the contract that is subject to arbitration. For example, an award from a loan agreement containing a valid arbitration agreement can affect the guarantor of the loan. Similarly, an agent can theoretically bind the non-signatory principal.

Arbitrators

Number and qualifications/characteristics

12. Are there any legal requirements relating to the number and qualifications/characteristics of arbitrators?

An arbitral tribunal can be composed of one or more arbitrators as agreed by the parties.

Under the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) a person who satisfies all the following criteria can act as an arbitrator:

  • Has the legal capacity to act under the Civil Code.

  • Possess a university degree and at least five years’ of work experience in the discipline studied.

  • In special cases, an expert who has highly specialised skills or qualifications can also be selected as arbitrator even if he does not have the requisite education and work experience.

The following cannot act as arbitrators:

  • Incumbent judges, procurators, investigators, enforcement officers or civil servants of the people’s courts, people’s procuracy, investigative agencies or judgment enforcement agencies.

  • Persons serving criminal sentences or whose criminal records have not yet been cleared even though they have served their sentences.

Independence/impartiality

13. Are there any requirements relating to arbitrators’ independence and/or impartiality?

An arbitrator must be independent and impartial, with the ability to quickly and promptly settle disputes.

Appointment/removal

14. Does the law contain default provisions relating to the appointment and/or removal of arbitrators?

Appointment of arbitrators

Under Article 40 of the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) the parties are free to agree on the procedure for the appointment of the arbitrator(s). In cases where the parties agree that their dispute will be settled by a sole arbitrator, the claimant must state the name and address of the person whom the claimant selects as arbitrator. Unless otherwise agreed by the parties, within 30 days after receiving the claimant’s statement of claims, the parties must agree on the selection of a sole arbitrator or request the Arbitration Centre to appoint a sole arbitrator, within 30 days after receiving the claimant’s statement of claims (unless otherwise agreed by the parties). A competent court can, at the request of any party, designate a sole arbitrator.

Removal of arbitrators

An arbitrator is disqualified and can be removed in the following circumstances (Article 42.1, LCA):

  • The arbitrator is a relative or representative of one party.

  • The arbitrator has an interest related to the dispute.

  • There are clear grounds to conclude that the arbitrator is not impartial or objective.

  • The arbitrator was a conciliator, representative, or lawyer of one party before the dispute was brought to arbitration for settlement (unless the parties consented in writing to waive such a potential conflict).

Procedure

Commencement of arbitral proceedings

15. Does the law provide default rules governing the commencement of arbitral proceedings?

There are no laws that provide default rules governing the commencement of arbitral proceedings. When a dispute is settled by an arbitration centre, the time of commencement of arbitral proceedings is the time the arbitration centre receives the claimant’s statement of claims (unless otherwise agreed to by the parties)

In contrast, when a dispute is settled by ad hoc arbitration, the time of commencement of arbitral proceedings is the time the defendant receives the claimant’s statement of claims (unless otherwise agreed to by the parties).

Applicable rules

16. What procedural rules are arbitrators likely to follow? Can the parties determine the procedural rules that apply? Does the law provide any default rules governing procedure?

Applicable procedural rules

The parties are free to decide the applicable procedural rules. Arbitrators must respect the agreement of the parties if the procedural rules do not contravene any legal prohibitions or social ethics. If the parties do not specify procedural rules for the arbitrators to follow, arbitrators are likely to resort to the rules of the arbitration centre administering the arbitration.

Default rules

If the parties cannot agree on the governing procedure, the tribunal will decide the procedures, subject to the rules of the arbitration centre administering the case.

Arbitrator’s powers

17. What procedural powers does the arbitrator have under the applicable law? If there is no express agreement, can the arbitrator order disclosure of documents and attendance of witnesses (factual or expert)?

Under Article 49 of the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) a tribunal has the right to apply interim injunctive relief based on a party’s request. The Civil Judgment Enforcement Authority will assist in carrying out the orders of a tribunal.

In addition, under Article 46 and Article 47 of the LCA, an arbitrator has the right to request that other organisations or individuals provide evidence or witness statements. However, in the case of non-cooperation, the tribunal can only request assistance from a competent court.

Evidence

18. What documents must the parties disclose to the other parties and/or the arbitrator? How, in practice, does the scope of disclosure compare with disclosure in litigation? Can the parties determine the rules on disclosure?

Scope of disclosure

Parties have the obligation to provide documents in support of their claims and establish facts relevant to the issues under dispute (Article 46, Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA)). However, there are no specific laws obliging the parties to provide any documents. In the event a party does not disclose supporting documents, there is no administrative or criminal sanction, but the party’s arguments can be severely undermined and not accepted by the tribunal.

There is no difference between disclosure in arbitration and litigation. Vietnam does not have any laws permitting party discovery. A tribunal can request the parties to provide evidence, but parties must make any request for evidence through a court or tribunal. There is no guarantee that a court or tribunal will accept a request. If a party refuses to provide evidence, there is nothing a tribunal can do. A party can seek court intervention, but the outcome is not predictable.

Parties’ choice

There are no provisions under the LCA that allow or disallow the parties to agree to what documents or information will be disclosed by either side.

Confidentiality

19. Is arbitration confidential?

Arbitration proceedings are confidential under the Article 4 and 21 of the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA).

Courts and arbitration

20. Will the local courts intervene to assist arbitration proceedings?

Any competent court in Vietnam can intervene, at a party’s request, to assist arbitration proceedings. A competent court has the powers to order any of the following:

  • Appoint an arbitrator in an ad-hoc arbitration.

  • Replace an arbitrator in an ad-hoc arbitration.

  • Decide the validity and scope of arbitration agreements.

  • Assist in the collection of evidence.

  • Apply interim injunctive relief.

  • Summon witnesses.

21. What is the risk of a local court intervening to frustrate the arbitration? Can a party delay proceedings by frequent court applications?

Risk of court intervention

A party can frustrate or delay the arbitration proceedings with frequent court applications. However, any request for court intervention must comply with relevant laws. For example, a party can dispute the validity and scope of an arbitration agreement. If the party fails, the party can later challenge the appointment of an arbitrator, the mode of collecting evidence or later request an arbitral award be cancelled on applicable grounds. If there is a legal basis for the request, a party cannot be prevented from seeking judicial intervention.

Delaying proceedings

The Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) prohibits the parties from delaying the proceedings (that is, providing claims and defences, disclosing supporting documents and witnesses in an untimely manner). In the event a party seeks judicial intervention, the arbitral proceedings will continue until and unless a court issues a decision that requires the arbitration to cease temporarily or permanently.

22. What remedies are available where one party denies that the tribunal has jurisdiction to determine the dispute(s)? Does your jurisdiction recognise the concept of kompetenz-kompetenz? Does the tribunal or the local court determine issues of jurisdiction?

A party can raise the lack of jurisdiction argument with the tribunal or a competent court under the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA). Vietnam laws recognise the concept of competence-competence, even requiring the tribunal to first decide its jurisdiction. This power is not exclusive and can be reviewed by a competent court, whose decision is final and binding on the parties and the tribunal.

The arbitral proceedings continue until the court decides that there is no valid arbitration agreement or limits the subject matter subject to arbitration.

Remedies

23. What interim remedies are available from the tribunal?

Security

The tribunal can award security, resorting to the rules of the administering body (if applicable) (Article 34, Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA)).

Other interim measures

The tribunal can order the following interim measures or interim injunctive relief (Article 49, LCA):

  • Prohibit any change in the status of assets under dispute.

  • Prohibit or force a party to take action that would prevent the proceedings from being adversely affected.

  • Seize assets under dispute.

  • Order the preservation, storage, sale or disposal of any asset under dispute.

  • Request temporary monetary payment between the parties.

  • Prohibit the transfer of assets under dispute.

24. What final remedies are available from the tribunal?

The tribunal has broad powers to award appropriate remedies, such as damages, injunctions, declarations, costs and interest. However, the remedies must have been specifically requested by a party and not be contrary to the fundamental principles of Vietnamese law. Remedies that are immoral, illegal or manifestly unreasonable, including excessive punitive or exemplary damages, may be deemed to contravene fundamental principles of Vietnamese law.

Appeals

25. Can arbitration proceedings and awards be appealed or challenged in the local courts? What are the grounds and procedure? Can the parties effectively exclude any rights of appeal?

Rights of appeal/challenge

The parties in an arbitration proceeding have the right to challenge and cancel an unfavourable award by lodging a petition with a local competent court (setting aside the award). An award cannot be appealed, that is, the merits of the underlying dispute cannot be re-adjudicated.

Grounds and procedure

A party must lodge a request to cancel an adverse award with a competent court within 30 days of receipt of the award. The merits of the dispute cannot be re-litigated. The aggrieved party can only request the court to review and cancel the award on the following grounds:

  • Whether there exists a valid arbitration agreement.

  • Whether the subject matter decided by arbitration falls within the jurisdiction of the arbitral tribunal.

  • Whether the arbitral tribunal was properly convened and whether the arbitration proceedings followed applicable procedures.

  • Whether the evidence was properly submitted.

  • Whether the arbitral tribunal was objective and impartial.

  • Whether the award contravenes fundamental principles of Vietnam law.

Recently there is an alarming trend of awards being set aside. Some of the awards are set aside on the grounds that there was no arbitration agreement, or that pre-arbitration negotiations were not exhausted. Some awards are set aside because it is contrary to the fundamental principles of Vietnam law, such as the principle of pacta sunt servanda (or the principle of objectivity).

This trend is a growing concern because court decisions setting aside arbitral awards are not usually subject to revision or appeal. There is a possibility that the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) may be amended to address this shortcoming and allow court decisions to be appealed and/or revised.

Excluding rights of appeal

There is no right to appeal arbitral awards. However, the grounds to set aside an award can be considered waived if not properly reserved. Under Article 13 of the LCA, one party waives its rights to protest violations of the LCA, if during the arbitration proceedings the perceived violations were not properly raised. However, this Article does not apply if the award contravenes fundamental principles of Vietnamese law.

26. What legal fee structures can be used? Are fees fixed by law?

There are no prohibitions on the type of fee structures that can be charged by lawyers representing parties in arbitration proceedings.

27. Does the unsuccessful party have to pay the successful party’s costs? How does the tribunal usually calculate any costs award and what factors does it consider?

Cost allocation

The unsuccessful party must pay the arbitration costs (not lawyer fees) unless otherwise agreed to by the parties or ordered by the tribunal (Article 34, Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA)).

Cost calculation

The LCA defines arbitration costs as the:

  • Remuneration paid to the arbitrators.

  • Travel and other expenses incurred by the arbitrators.

  • Consultation of expert witnesses or other assistance requested by the arbitrators.

  • Cost of administering the arbitration and other services provided by the arbitration centre.

The costs usually correspond with the amount of dispute, and not with the time spent by the arbitrators.

Factors considered

The LCA allows the tribunal to allocate the costs between the parties, but in general the losing party bears the costs.

Enforcement of an award

Domestic awards

28. To what extent is an arbitration award made in your jurisdiction enforceable in the local courts?

A domestic arbitration award is fully enforceable, unless there are grounds for cancellation. The award creditor can request the provincial civil judgment enforcement authority where the award was issued to execute the award. In the case of an ad hoc arbitration award, the award creditor must first register the award with a competent court before requesting the civil judgment enforcement authority to carry out the award.

29. Is your jurisdiction party to international treaties relating to recognition and enforcement of foreign arbitration awards, such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention)?

Vietnam has been a member of the New York Convention since 1995. Vietnam made four reservations at the time of agreement:

  • The New York Convention applies to contracting states.

  • The New York Convention applies to non-contracting states on the basis of reciprocity.

  • The New York Convention will be applied only to commercial disputes as determined under the laws of Vietnam.

  • The interpretation of the New York Convention before Vietnamese courts or competent authorities must be in accordance with the Constitution and the law of Vietnam.

30. To what extent is a foreign arbitration award enforceable in your jurisdiction?

To enforce a foreign award in Vietnam (including from the UK and the US) a party must first file a petition with the Ministry of Justice (MOJ) in the country’s capital, Hanoi (along with the award and relevant documents). The MOJ reviews the documents for compliance with procedural requirements and then transfers the documents to a competent court. The competent court then notifies the award debtor and the public prosecutor before considering the petition.

The grounds for refusing recognition and enforcement are those set out in Article V of the New York Convention and Article 370 of Vietnam’s Civil Procedure Code.

Length of enforcement proceedings

31. How long do enforcement proceedings in the local court take, from the date of filing the application to the date when the court makes its final order? Is there an expedited procedure?

The award debtor has 30 days after compliance is required to satisfy the award. If the award is not satisfied, the award creditor can request a competent enforcement agency to enforce the award after it has become final.

In contrast, the procedure for the recognition and enforcement of foreign arbitral awards is more time consuming. It can take one to two years from the date of submission to receive a final order. This is despite the approximate timeline of five months provided in the Civil Procedure Code 2004 (CPC) from the time the petition is first lodged with the Ministry of Justice until a final decision is rendered by the Supreme Court.

Reform

32. Are any changes to the law currently under consideration or being proposed?

Amendments to the Law on Commercial Arbitration No. 54/2010/QH12 dated 17 June 2010 (LCA) are currently under consideration to reduce the risk of awards being set aside. The discussions are very preliminary and no changes are expected in the coming year.

The Supreme Court has issued a Resolution and an Official Letter that clarify the grounds to set aside foreign arbitral awards. Resolution 01 was made effective on 01 July 2014. In addition to clarifying the grounds to cancel foreign arbitration awards, Resolution 01 reaffirms the jurisdiction of Vietnamese courts to issue interim injunctive relief. Official Letter No. 246/TANDTC-KT was sent to all provincial level courts in Vietnam, providing guidance on the application of the New York Convention with respect to foreign arbitral awards. Specifically, the Letter reminds the lower courts to apply the substantive laws and arbitration rules selected by the parties and not the Vietnamese Civil Procedure Code.

Main arbitration organisations

Vietnam International Arbitration Centre (VIAC)

Main activities. The VIAC is responsible for resolving commercial, construction and financial disputes

www.viac.org.vn

The Financial and Commercial Centre for Arbitration (FCCA)

Main activities. The FCCA is responsible for resolving financial, construction and investment disputes

www.fcca.org.vn

The Asean International Commercial Arbitration Centre (ACIAC)

Main activities. The ACIAC resolves commercial disputes

www.aciac.com

The Pacific International Arbitration Centre (PIAC)

Main activities. The PIAC resolves commercial disputes

www.piac.com.vn

Online resources

Office of National Assembly

www.vietlaw.gov.vn

Description: The website is provided by the Office of National Assembly. It provides Vietnamese versions of soft copies of the constitution, laws, ordinances, decrees, circulars and other sub-law documents.

www.thuvienphapluat.vn

Description: The website is unofficial, but the largest provider of English-language translation of Vietnamese laws.

www.vietnamlawinsight.com

Description. This is a legal blog run by LNT & Partners that has insight reviews and connects between the facts and the laws (including arbitration).

W www.vietnamlaws.com

Description. This is a law blog run by Allens Linklaters, which provides a subscription database of Vietnam law in English.

Contributor profiles

Le Net, Partner, VIAC Arbitrator

LNT & Partners

T + 84 83 8212 357
F + 84 80 9103733
E net.le@LNTPartners.com
W www.LNTpartners.com

Professional qualifications. Vietnam, Attorney at Law.

Areas of practice. Infrastructure; financial services; dispute resolutions.

Non-professional qualifications. Lecturer, Ho Chi Minh City University of Law.

Recent transactions

  • Acting for the employer in a US$150 million ICC construction arbitration on the Saigon River Tunnel and East West Highway.
  • Advising the employer on the US$2.7 billion Metro Line No 2 Ho Chi Minh City
  • Advising the lenders in a US$345 million oil and gas project finance.

Languages. English, Vietnamese, Polish, French.

Professional associations/memberships. Vietnam International Arbitration Centre, Arbitrator. Drafting Committee, Principles of Asian Contract Law.

Publications.

  • Vietnam Contract Law, International Encyclopaedia of Laws, Kluwer Law International, Boston (1ST Edition, 1999, 2ND Ed 2012, 3RD Ed 2014).
  • Vietnam Corporate and Partnership Law, International Encyclopaedia of Laws (co-author), Kluwer Law International, Boston (1ST Ed 2012, 2ND Ed 2014).
  • Vietnam Intellectual Property Law, International Encyclopaedia of Laws (co-author), Kluwer Law International, Boston (1ST Ed 2012, 2ND Ed 2014).

New Proposals for Commercial Mediation (ADR)

As a matter of implementing Resolution No. 49-NQ/TQ of the Politburo dated 2 June 2005, as well as implementing Vietnam’s commitments on acceding to the WTO, the State has been developing the new Decree to govern the alternative dispute resolution (ADR) for commercial disputes, called commercial mediation.

According to the draft composer, the Decree shall adopt relevant principals of UNCITRAL’s Model Law, these principals are:

  • The mediation process must always have the presence of a neutral third party to assist the parties in the dispute to settle.
  • Mediation is a voluntary solution, except unless otherwise required by laws or the type of dispute.
  • The parties in dispute participate in the process of mediation to build and to reach a mutual agreement themselves.
  • Mediation creates a safe, friendly communication environment for the parties in the dispute.
  • Mediation could be an independent procedure or part of court or arbitral procedure.
  • Mediation is confidential.
  • Mediation does not affect or prevent the parties from using other dispute resolution methods.

For a summary of the above principals, it is concluded that if mediation is successful, the parties would have another agreement to settle the dispute, called the settlement agreement. In case either party does not honor the settlement agreement, the remaining party could request that the court or arbitration make a request for honoring the settlement agreement.

Within the content of this article, we will discuss the binding effect of a settlement agreement under the draft Decree on Commercial Mediation dated 17 June 2015.

According to Articles 25 and 26 the draft Decree, it is written that a settlement agreement would have the effect of binding the obligations of the involved parties. Also, either party has the right to request the Court to recognize the settlement agreement. The procedure and process make the request to the Court must follow the regulations of Civil Procedure Code.

Speaking of this, we are of the opinion that when drafting the Decree with the above contents, there are two issues to be discussed:

  • First, it is contrary to the principals of the UNCITRAL’s Model Laws that mediation result is some form of a new agreement, or a new contract between the parties in dispute. The point is that, in other countries, in the event that one party breaches the settlement agreement, the remaining party can bring the settlement agreement to court or arbitration. At this stage, the court or arbitration shall not re-adjudicate the whole relationship or issues before the time the parties enter into the settlement agreement, but only review the settlement agreement as a new contract between the parties that replaces any other previous issues.
  • Secondly, there is currently no specific provision in both the Law on Commercial Arbitration or the Civil Procedure Code. Therefore, the Law on Commercial Arbitration and the Civil Procedure Code must be amended to be suitable for this Decree, however this solution is not possible. Moreover, there are some opinions that currently, the procedure for recognizing a foreign award or judgment is very complicated and risky, therefore, to add this issue may result in more complexity to the system.

We are of the opinions that Articles 25 and 26 of the draft Decree should be amended in the approach that the settlement agreement is a new contract that replaces all other previous issues relating to the parties, in case where one party dishonors the settlement agreement, the other party can request the court or arbitration to instigate a new case for its enforcement.

By Vietnam Law Insight (LNT & Partners)

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

The New Law on Organization of People’s Court

Effective from 1 June 2015, the new Law on Organization of People’s Court (LOPC) was adopted by Vietnam‘s National Assembly on November 24, 2014. By the time the law becomes effective, its implementing Decrees and/or Circulars will also be ready.

This law aims to provide a detailed explanation for the functions, duties and powers of the people’s court. This review highlights the important changes in the hierarchical structure, duties and power of the Supreme people’s court.

1. Modification in structure of people’s court

In the past, there have been three levels of people’s court: the people’s court of rural and urban districts; capital city courts and the people’s court of the provinces and centrally run cities; and the supreme people’s court. Under the new LOPC, the structure of people’s court is divided into four adjudicating levels (LOPC: Art. 3):

  • The Supreme people’s court;
  • Superior people’s court;
  • Court of provinces and centrally-run cities; and
  • Court of rural districts, urban districts, town, provincial, cities and the equivalent.

The new LOPC has introduced a superior people’s court into the structure, which further leads to reforms to the duties and powers of other people’s court.

2. Modification in powers and duties of the Supreme people’s court and the Superior people’s court

Under the new LOPC, the Supreme people’s court consists only of the Judicial council (from 13 to 17 members including the Chief Justice, Deputy Chief Justices and other judges), assisting apparatus and training institutions. By removing the specialized and appellate court from the structure of people’s court, it is clear that the Supreme people’s court will reduce its powers over appellate trials.

There are four significant powers that have been entrusted to the Supreme people’s court (Art 20 of the new LOPC):

  • To supervise the adjudicating work of other courts;.
  • To make overall assessment of the adjudicating practices of the other courts, ensuring the uniform application of law is enforced in the conduct of trials;
  • To manage people’s courts organizationally and ensure independence of the courts from one another; and
  • To submit to the National Assembly laws and resolutions; to submit to the National Assembly Standing Committee ordinances and resolutions in accordance with the law.

Reflecting on the allocated powers of the Supreme people’s court, the cassation and reopening trial decisions of its Judicial council are of the greatest significance and importance, and come into enforcement immediately.

Furthermore, as for the appearance of the new Superior people’s court, its duties will be as follows:

  • To conduct appellate trials of cases in which the first-instance judgments, or decisions of people’s courts of provinces or centrally run cities within their territorial jurisdiction which have not yet taken legal effect, are appealed or protested against in accordance with the procedural law.
  • To conduct the trial according to cassation or reopening procedure of cases in which judgments or decisions of people’s courts of provinces, centrally run cities, rural districts, urban districts, towns, provincial cities, or the equivalent authority within their territorial jurisdiction which have taken legal effect are protested against in accordance with the procedural law.

The Court of provinces and centrally-run cities no longer have the right to conduct a trial according to cassation or reopening of a case anymore, as those duties have now been allocated to the Superior people’s court. The remaining court does not change its duties.

  • Plan to apply the new LOPC

To implement the new LOPC, the National Assembly Standing Committee (NASC) issued Resolution No.81/2014/QH13 (Resolution No.81) on implementation of LOPC on November 24, 2014. Resolution No. 81 provided further clarification for adopting the new adjudicating levels as regulated in Resolution No.81.

Until the effective date of the new LOPC, the Chief Justice of the Supreme people’s court shall prepare the organization structure, personnel and other necessary conditions for the new adjudicating levels (Art 1.1 of Resolution No.81). The Judicial council of the Supreme people’s court has to transfer its duties and power to that which is newly established, in accordance with the new LOPC (Art 2.1 of Resolution No.81).

In the Meeting on May 14, 2015, NASC decided to establish three (03) main Supreme people’s courts (in Ha Noi, Da Nang and Ho Chi Minh City) based on the current appellate courts of the Supreme people’s court. This will ensure the adaptability related to the structural organization, facilities and personnel of the new Supreme people’s court established under the new LOPC.

By Vietnam Law Insight.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Securing the Right to File a Lawsuit in Administrative Cases

During the implementation and application of Administrative Procedure Law, many issues have arisen about securing the statute of limitation for initiating a lawsuit. To overcome these limitations, The Council of Judges of the Supreme People’s Court has issued Resolution 01/2015/HĐTP-TANDTC, amending Resolution 02/2011/HĐTP-TANDTC with regard to the guidelines for the implementation of the Administrative Procedure Law.

The new resolution has amended point B clause 1 Article 1 of Resolution 02/2011 as follows:

“b) Administrative decisions, issued after having complaints, which retain the old administrative decisions as the previous ones or modify, substitute, cancel parts or whole previous decisions as shown at point a clause 1 of this Article.”

In comparison to the former provision in Resolution 02/2011, the new provision adds the word “retain the old administrative decisions”; meaning that the administrative decisions issued after the settlement of complaints now becomes the additional lawsuit objects in administrative cases under this Resolution.

Compared to Resolution 02/2011, the new provision has strengthened the claimants’ right to complain and initiate a lawsuit. Under Resolution 02/2011, administrative decisions which are issued after the settlement of complaints and retain the old administrative decisions as, cannot be sued with the new statute of limitation starting from the day of issuance. Consequently, in reality, there may be circumstances in which the lawful rights and interests of the claimants may be violated.

In the first circumstance, if the person who has the authority to settle the complaints wants to retain the previous administrative decisions and prevent the complainants from filing a lawsuit, that person can delay the issuing of decisions until the statute of limitation for initiating a lawsuit expires. This will seriously affect the right to initiate a lawsuit by the complainants if they are not satisfied with the decision regarding the settlement of their complaints.

In the second circumstance, for subjective reasons, the complainants have received the decision regarding the settlement of the complaints when the statute of limitation for initiating the lawsuit has expired. In both circumstances, the complaints cannot file a lawsuit against such decisions, and can only make the complaints for the second time to the competent authority.

Based on the new provision, decisions regarding the settlement of the complaints which retain the previous decisions now become the lawsuit objects in administrative cases. Therefore, if the complainants are not satisfied with those decisions, they can initiate a new lawsuit against those decisions at administrative courts, with the new statute of limitation counting from the date receiving or knowing such decisions.

The new Resolution 01/2015/HĐTP-TANDTC issued by the Council of Judges of the Supreme People’s Court has fully secured the right to complain and initiate a lawsuit by the people in administrative cases. With this provision, the Administrative Procedures in the Courts will become clearer and more effective, contributing to the development of our national judicial system.

By Vietnam Law Insight, LNT & Partners

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Next Milestone for Recognizing Judicial Precedent in Vietnam

On 23 March 2015, the Supreme Court issued the Official Letter No. 53/TANDTC-KHXX to instruct Chief Judges of the Provincial Level People’s Court and equivalent Courts to collect effective judgments with a number of conditions and send to Supreme Court before 25 April 2015 so that the Supreme Court can prepare a set of precedent cases, which can then submitted to the Judges’ Council for approval.

This could be considered as a clear action from the Supreme Court to implement a policy that had been approved by the Politburo of Vietnamese Communist Party, first announced in 2005.

To be concise, although not formally introduced as a legislative document until present, a number of Judges have been using a kind of precedent when adjudicating cases. This is in the form of cassation judgments approved by the Judges’ Council of Supreme Court. Of course, not every cassation judgment is used to adjudicate any other similar cases, but when one Judge adjudicates a case, another Judge can make use of the legal analysis and arguments to apply to their case. This method however is not an official application of judicial precedent in Vietnamese Courts.

Judicial precedent in lawsuit adjudication has been a model to other foreign law systems, especially countries with a common law system, where legislative provisions are formed by the Judges themselves, or even in countries with civil law system, but where laws only provide legal framework and leave the adjudication to Judges.

As a member of WTO, Vietnam has been attempting to demonstrate greater transparency in general, with particular focus on its judiciary system. Consequently, the introduction of judicial precedent is a principle that Vietnam cannot ignore.

Along with the set of precedent cases, what we are also waiting for is the guidance on the application of the Official Letter (53/TANDCKHXX); hopefully to be announced together as a set.

By Vietnam Law Insight, LNT & Partners

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

Tiền gửi vào ngân hàng : tài sản của ai?

(TBKTSG Online) – Ngày 16/12/2014, tại phiên tòa phúc thẩm xử vụ án Huỳnh Thị Huyền Như lừa đảo chiếm đoạt tài sản, đã xuất hiện một câu hỏi quan trọng từ đại diện Viện Kiểm sát giữ quyền công tố : “tiền của khách hàng vào tài khoản của VietinBank có phải là tài sản của ngân hàng hay không?”

Đây là một câu hỏi thuộc về kiến thức cơ bản của luật dân sự mà bất cứ sinh viên năm thứ 2 ngành luật nào cũng phải biết. Tuy nhiên, theo tường thuật của báo Tuổi trẻ ngày 16/2/2014, đột nhiên câu hỏi này trở thành khó tới mức không trả lời nổi.

Đại diện VietinBank cho rằng tài khoản của khách hàng thì do khách hàng quản lý và sử dụng. Điều này cũng giống như gửi xe thì người có xe tự chịu trách nhiệm nếu mất.

Đại diện Ngân hàng Nhà nước cho rằng tùy theo quy định của Bộ Luật dân sự (BLDS), nhưng không viện dẫn được điều nào.

Luật sư đại diện VietinBank cho rằng tiền này không phải tài sản của ngân hàng và ngân hàng không sở hữu tài sản của khách hàng mà chỉ tạm thời sử dụng tài sản này phục vụ cho việc cho vay và dùng vào các mục đích tài chính (?).

Trong khi đó, chỉ có đại diện Ngân hàng Navibank và ACB cho rằng đây chính là tiền huy động vốn và tiền huy động vốn là tài sản của ngân hàng, các ngân hàng thương mại sử dụng tiền này để cho vay và dùng vào các mục đích kinh doanh khác của ngân hàng.

Thật ra, câu trả lời đã nắm trong Điều 472 BLDS: “Bên vay trở thành chủ sở hữu tài sản vay kể từ thời điểm nhận tài sản đó.”  Ngoài ra, Điều 166 BLDS còn quy định “Chủ sở hữu phải chịu rủi ro khi tài sản bị tiêu hủy hoặc bị hư hỏng do sự kiện bất khả kháng, trừ trường hợp có thỏa thuận khác hoặc pháp luật có quy định khác”.

Trong quan hệ tiền gửi, ngân hàng là người đi vay (đó là lý do tại sao họ phải trả lãi) và người gửi tiền là người cho vay. Vậy tiền gửi ngân hàng là thuộc quyền sở hữu của ngân hàng theo Điều 472 BLDS. Nếu tiền đó mất, ngân hàng phải chịu rủi ro, chứ không phải là người gửi tiền, theo Điều 166 BLDS. Các bên không có thỏa thuận gì khác và pháp luật cũng không có quy định gì khác. Như vậy, câu trả lời đúng là câu trả lời của ACB và Navibank.

Một số quan điểm viện dẫn đến khoản 22 Điều 4 Luật các tổ chức tín dụng (TCTD) năm 2010, khoản 8, Điều 3 Nghị định 64/2001/NĐ-CP quy định tài khoản thanh toán là tài khoản do người sử dụng dịch vụ thanh toán mở tại các tổ chức cung ứng dịch vụ thanh toán để thực hiện giao dịch thanh toán theo quy định của NHNN, để hiểu rằng tiền gửi là của khách hàng. Quan điểm này nhầm lẫn khái niệm tiền gửi (tài sản) và tài khoản (nơi ghi nợ, có của số tiền gửi).  Hay nói cách khác là nhẫm lẫn giữa quan hệ sở hữu và quan hệ nghĩa vụ.

Việc ngân hàng (bên vay) sở hữu tiền nhận của người gửi tiền (bên cho vay) không có gì là mâu thuẫn, bởi lẽ ngân hàng không phải trả lại đúng đồng tiền, số seri mà ngân hàng nhận từ người gửi (như gửi xe đạp), mà chỉ phải trả đúng loại tiền mình đã nhận.

Điều 471 BLDS quy định “Hợp đồng vay tài sản là sự thỏa thuận giữa các bên, theo đó bên cho vay giao tài sản cho bên vay; khi đến hạn trả, bên vay phải hoàn trả cho bên cho vay tài sản cùng loại theo đúng số lượng, chất lượng và chỉ phải trả lãi nếu có thỏa thuận hoặc pháp luật có quy định”.

Một số khác lại cho rằng tiền gửi nếu còn “nằm” trong tài khoản của người gửi tiền thì của người gửi tiền, chỉ khi nào ngân hàng rút ra thì mới của ngân hàng. Lập luận này lại càng mâu thuẫn, và trái với quy định của BLDS nêu trên.

Ngay Quyết định 1284/2002/QĐ-NHNN về mở và sử dụng tài khoản tiền gửi cũng chỉ quy định tại khoản 1 Điều 11 một số trường hợp ngân hàng được phép trích số tiền từ tài khoản của người gửi tiền ra, tuy nhiên điều đó cũng không thay đổi bản chất tiền gửi của khách hàng vào ngân hàng thì đã thuộc tài sản của ngân hàng rồi.

Tuy nhiên, ngân hàng có trách nhiệm trả đủ cả vốn lẫn lãi cho người gửi tiền khi đến hạn. Hành vi “trích tài khoản” thể hiện quan hệ nợ-có giữa ngân hàng và chủ tài khoản mà thôi.

Nói tóm lại, quan hệ sở hữu và quan hệ nghĩa vụ là hai loại quan hệ khác nhau và không thể nhầm lẫn. Tài khoản thể hiện quan hệ nghĩa vụ (nợ/có), tiền là tài sản, tiền của ai thuộc về khái niệm sở hữu.  Thí dụ, tôi vay anh một khoản tiền để xây nhà, thì căn nhà đó vẫn là của tôi chứ không phải của anh, và tiền vay là tiền của tôi (quan hệ sở hữu). Tôi chỉ phải trả anh một khoản tiền tương đương và lãi (quan hệ nghĩa vụ) khi đến hạn trả.

Hiểu như vậy, chúng ta sẽ thấy vụ án Huyền Như (và những vụ tương tự với những ngân hàng khác) có thể có kết cục hợp lý hơn: Vietinbank là người bị hại. Huyền Như có trách nhiệm bồi thường cho Vietinbank. Vietinbank có trách nhiệm trả nợ (tiền gửi và lãi) cho người gửi tiền (bên cho vay).  Trong quan hệ này không quan trọng Vietinbank có lỗi đối với người gửi tiền hay không.

Luật sư LNT & Partners
Nguồn : www.thesaigontimes.vn

Eyeing the pitfalls of arbitral awards

Most legal jurisdictions recognise that employees within a company can sign a contract within the scope of their employment to bind the company to perform.

In contrast, in Vietnam, pursuant to the Civil Code, the only person that can bind and act on behalf of the company is the legal representative (or someone expressly authorised by the legal representative). The legal representative is usually the chairman of the board or the general director (equivalent to the president or CEO), and there can only be one legal representative per company.

The details of the legal representative are prominently recorded in the business registration certificate. In the context of international arbitration, this legal regime of limiting the power to bind a company to a single person has caused innumerable delays to the enforcement of arbitral awards in Vietnam, and in some cases, even non-recognition.

Foreign multinational corporations as well as smaller companies have lower level managers who negotiate and sign contracts which often contain dispute resolution provisions requiring the parties to finally resolve disputes through arbitration. In other words, the contracts are usually not signed by either the chairman of the board or the CEO. As such, when a dispute arises, the foreign party initiates arbitration against the Vietnamese party.  If it wins, the foreign party then proceeds to enforce the award in Vietnam by submitting an application to the Ministry of Justice, which is then forwarded to a local court with jurisdiction to hear the case. However, the foreign company soon learns that enforcing the award in Vietnam may be even harder than winning the award in the first place.

Under the New York Convention and Article 370 of the Civil Procedure Code 2004 (“CPC”), a Vietnamese court cannot re-adjudicate the merits of the underlying case. Instead, the court must enforce the arbitral award unless one or more of several recognised exceptions apply. In this context, the exception in question is the lack of capacity to sign. The Vietnamese debtor typically does not sign the agreement, so the foreign party must establish that the person who actually signed the contract was authorised to sign the contract containing the arbitration provision. The foreign party is then forced to go through a time-consuming process of finding the appropriate personnel to sign affidavits, to convene a board meeting, and to issue board resolutions to prove that the person who originally signed the contract was properly authorised.

However, even after jumping through all these hoops, it may not be enough. In a recent case, a court in Long An province refused to recognise an arbitration award because there was no proof that the signer was authorised to sign the contract prior to or at the time the contract was originally executed. This ruling is currently being appealed on other legal grounds.

While there are a number of counter legal arguments that can be made on the issue of capacity, a few practical solutions should substantially reduce the risks of non-recognition and avoid the delays associated with having to prove the legal capacity to enter a contract. The most obvious solution is to have either the chairman of the board or the highest executive officer sign the contract. This solution, however, may not be practical, especially for large companies that enter into many different contracts in many different locations around the world. Moreover, in certain jurisdictions, the signer is presumed to have read and understood the terms of the contract, triggering certain legal obligations and rights, which may not be favorable to the company if the chairman or the CEO signs an agreement that is unfamiliar to them.

Another solution is to create standard blanket written authorisations for employees who hold managerial roles and are in position to sign contracts. This authorisation will grant the employee in question the right to sign any and all agreements that are within the scope of his or her employment. This authorisation may be appended to each contract at the time of contract execution. The language granting the authorisation should not simply be in the form of a representation or warranty in the contract since the signer will still need to prove he or she was authorised to enter the contract in the first place.

In closing, this seemingly innocuous issue of capacity has befuddled many foreign companies seeking to enforce arbitral awards in Vietnam. A few thoughtful precautionary steps during the contract formation stage will remove a procedural defense that could prove fatal in Vietnam.

By Vietnam Law Insight, LNT & Partners.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com

5 lý lẽ sắc bén của Luật sư vụ Đại úy CSGT bắn chết cấp trên

Như tin đã đưa, cuối phiên xử chiều 26.8, HĐXX quyết định hoãn phiên tòa xét xử sơ thẩm vụ án “Giết người trong trạng thái bị kích động mạnh”, vì qua tranh luận thấy vụ án có dấu hiệu của tội giết người nên trả hồ sơ cho Viện KSND để điều tra bổ sung. 

Bị can là Ngô Văn Vinh, nguyên đại úy, công tác tại Trạm CSGT Suối Tre (Đồng Nai) và nạn nhân chính là cấp trên của Vinh, thiếu tá Trần Ngọc Sơn – Phó trạm.
Bà Nguyễn Thị Kim Vinh – luật sư đại diện phía bị hại đề nghị truy tố bị cáo Ngô Văn Vinh tội “Giết người” theo khoản 1, điều 93 BLHS với khung hình phạt từ 7 năm tù giam đến 15 năm tù giam, đề nghị tiến hành thực nghiệm hiện trường, trả hồ sơ điều tra lại vụ án.
Theo bà Vinh, vụ án đã vi phạm luật tố tụng khi mã số khẩu súng K59 – vật chứng quan trọng của vụ án không thống nhất trong các văn bản tố tụng. Phía bị hại không hề nhận được kết luận điều tra, cáo trạng của VKS cho đến khi báo chí đăng tin, phía bị hại mới đọc được cáo trạng.

Bà Vinh cho rằng, tội danh mà VKS truy tố bị cáo Ngô Văn Vinh là quá nhẹ so với hành vi của bị cáo. Dựa trên những lý lẽ sau, bà Vinh cho rằng, bị cáo rõ ràng có ý muốn tước đoạt mạng sống nạn nhân đến cùng.

Thứ nhất, dựa trên lời khai của nhân chứng Phong, trước khi gây án, bị cáo Ngô Văn Vinh có gọi cho Phong. Nội dung cuộc gọi là bắt Phong cho địa chỉ nhà thiếu tá Sơn để Vinh đi tìm anh Sơn.
Thứ 2, Vinh đã lấy súng giấu sẵn dưới gối và tuyên bố với mọi người rằng sẽ giết Thiếu tá Sơn.

Thứ 3, bị cáo Vinh có động cơ giết người rõ ràng. Bà Kim Vinh tranh luận: “Theo như bị cáo nói trước tòa, và phần tranh luận của đồng nghiệp tôi – luật sư phía bị cáo, thì bị cáo rất quê và xấu hổ khi bản thân là công an mà bị anh Chí là một thường dân đánh trước mặt mọi người. Đồng thời, lời khai của các nhân chứng cũng nói rằng, Vinh đánh anh Sơn trước vì cho rằng anh Sơn không bênh vực mình. Vì “quê”, vì tổn thương lòng tự trọng nên bị cáo kiếm anh Sơn trả thù. Đó rõ ràng là động cơ giết người”.

Thứ 4, biên bản khám nghiệm tử thi cho thấy, thiếu tá Sơn bị bắn 2 phát đạn, gây ra 2 vết thương. Một vết ở phía trước trúng mạn sườn, một vết từ đằng sau lưng.
Luật sư Kim Vinh phân tích: “Không thể nói là do giằng co mà gây ra 2 vết đạn, một từ phía trước, một từ đằng sau. Phải chăng khi thiếu tá Sơn trúng một phát đạn ngay mạn sườn, đã gục lên người bị cáo, thì bị cáo đã bồi thêm một phát nữa từ sau lưng? Phải thực nghiệm hiện trường, để xác định hành vi giết người của bị cáo. Chứ nói do giằng co mà gây ra 2 vết đạn nghịch chiều thì không thuyết phục”.
Thứ 5, bà Vinh lý luận rằng, trước khi bắn thiếu tá Sơn, thì thượng úy Đoàn Thanh Phú đã trúng đạn trước đó và la rất lớn. Nếu không cố tình giết thiếu tá Sơn, súng cướp cò, thì theo lẽ thường bị cáo Vinh phải hoảng sợ, hoặc buông súng.
“Chứ lý nào lại tiếp tục nổ súng cho đến khi hết sạch đạn?”- bà Kim Vinh đặt câu hỏi.

Luật sư Nguyễn Thị Kim Vinh còn cho rằng, cơ quan chức năng đã bỏ lọt tội danh “Vi phạm các quy định về sử dụng vũ khí quân dụng”. Súng của nguyên đại úy Ngô Văn Vinh được cấp để thực thi pháp luật, truy bắt tội phạm chứ không dùng để giấu dưới gối, hay bắn đồng đội của mình.

Với những lý lẽ sắc bén, luật sư Nguyễn Thị Kim Vinh nhận được tràng pháo tay của những người dự khán sau khi xin hết phần tranh luận.

Phần tranh luận giữa luật sư đại diện cho bị hại và đại diện VKS diễn ra khá căng thẳng.

Lúc 16 giờ 30 phút, hết giờ hành chính HĐXX tuyên bố cho phép tiếp tục phần tranh luận – là phần rất quan trọng trong một phiên tòa. VKS nói, sẽ bảo lưu những ý kiến của luật sư Kim Vinh và cho rằng, luật sư Kim Vinh đã khiến phía bị hại nghĩ rằng cơ quan điều tra đang bỏ lọt tội cho bị cáo.

Tranh luận về ý kiến này, bà Vinh nói trước tòa: “Tôi đang nói bị cáo dùng vũ khí quân dụng sai mục đích là hoàn toàn có cơ sở. Rõ ràng, quy định về sử dụng vũ khí quân dụng là dùng để truy bắt tội phạm, anh Sơn, anh Phú đã phạm tội gì mà bắn họ? VKS nói tôi cố ý cho phía bị hại nghĩ rằng bị cáo có thêm tội danh là hoàn toàn không đúng. Bị cáo bị trừng phạt nặng hơn, anh Sơn có sống lại được không? Xin thưa, không.
“Điều tôi muốn là phía bị hại được minh bạch rằng, thật sự tình huống nào, hành vi nào đã dẫn đến cái chết của người thân bị hại. Và minh chứng được điều này, sẽ dẫn đến việc thực thi pháp luật một cách công bằng”.

Kết thúc phần tranh luận, tòa cho bị cáo Ngô Văn Vinh nói lời sau cùng. Khi tòa hỏi, Vinh có yêu cầu gì không, có muốn nói lời sau cùng nào không, Vinh thưa rằng: “Dạ không!”.

Sau khi nghị án, HĐXX cho rằng, bị cáo có dấu hiệu phạm tội Giết người theo điều 93, BLHS, nên tuyên trả hồ sơ tiếp tục điều tra vụ án, tiến hành thực nghiệm hiện trường. Với dấu hiệu phạm tội này, bị cáo có thể đối diện mức án từ 7 – 15 năm tù, nặng hơn rất nhiều so với tội danh “Giết người trong trạng thái kích động mạnh”.

Kết thúc phiên tòa, vợ nạn nhân, bà Nguyễn Thị Bích Vân gục khóc nức nở. Bà Vân ngay lập tức được người thân dìu ra xe. Quyết định của HĐXX nhận được nhiều sự ủng hộ của người dự khán.

Ngọc Giàu
 Nguồn: motthegioi.vn

Is commerical mediation a face saver?

As the International Chamber of Commerce (ICC) gets set to hold its regional conferences in March to launch its new ICC Mediation Rules, it is now more pertinent than ever that Vietnam’s business community are aware that when it comes to resolving commercial disputes, there are far cheaper, quicker and more amicable options than simply going to court or arbitration, writes Logan Leung from LNT & Partners.

Companies doing business in Vietnam will benefit from thinking twice about how their commercial disputes should be resolved. Mediation has for many years maintained a position as a viable alternative to resolving disputes for both private and public bodies. In Vietnam, the process is, with the exception of certain labour disputes and administrative matters, compulsorily employed at the courts (court-annexed mediation) and it is also frequently used for small-scale local disputes (grassroots mediation). Yet, mediation has seemingly flown under the radar of businesses when it comes to resolving disputes involving foreign parties.

Private commercial mediation explained

The process of mediation involves the disputing parties attempting to reach an amicable resolution with the assistance of an independent third party (the mediator). As the key element of mediation is amicability, it is a voluntary process in that both parties must agree to use it. While there is no set path to how proceedings may be run, the mediator will often facilitate discussions between the disputants and talk through points of contention with a view to settle. Having a mediator to assist in negotiations can be far more productive than having the parties negotiate privately, as it will often help to navigate through discussion deadlocks.

The advantages of commercial mediation over litigation or arbitration are numerous, and parties can expect to benefit from:

– A much cheaper process because of lower or even no legal fees

– A much faster process, with proceedings seldom taking longer than a week

– The ability to maintain amicable relationships with one another (and save face)

– Full confidentiality in the process.

For disputes with an international element, resolution through the Vietnamese courts is not always approachable, particularly for foreign parties, and arbitration can be very costly. In these circumstances, commercial mediation may be considered, which involves the parties selecting their own mediator to facilitate settlement discussions. Many notable institutions, such as the Vietnam International Arbitration Centre (VIAC) and the International Chamber of Commerce (ICC), have dedicated mediation systems in place to assist parties through the process.

Global development of commercial mediation

The development of commercial mediation has taken strides around the world – particularly in Asia – at a time when businesses are becoming more cost-conscious and seeking to maintain client relationships. This trend is observed through several recent changes.

For businesses, the ICC has become a household name in international arbitration. However, perhaps less well-known and employed are the ICC’s mediation offerings. On 1 January 2014, the ICC Mediation Rules came into effect to replace the 13-year old ICC ADR Rules. These rules guide the parties in initiating mediation (including selecting the mediator) and set out the proceedings’ administrative rules. As the actual mediation follows no fixed approach unlike litigation or arbitration, the rules provide a helpful foundation for parties contemplating using the ICC’s procedures.

Also recently in 2013, the Kuala Lumpur Regional Centre for Arbitration (KLRCA) introduced its new KLRCA Mediation Rules with a view to streamline the commercial mediation process and promote its use among parties. Its provisions are, in many parts, similar to the ICC Mediation Rules and offer a viable and affordable alternative for resolving disputes in South East Asia.

The arbitration powerhouse, Singapore, has also made significant developments. The country boasts an International Commercial Mediation Working Group which has pushed numerous recommendations to the Ministry of Law in December 2013 towards also transforming Singapore into a mediation hub. These recommendations include passing a dedicated mediation law and bolstering judicial support.

The commercial mediation regime in Vietnam

Despite the expanding demand in Asia in shifting from traditional adversarial proceedings to amicable and party-focused mediation, Vietnam has been less active. This is despite the government’s strong embrace of mediation, having even entrenched it in Article 11 of the Civil Code.

While a dedicated Law on Grassroots Mediation will come into effect later this year, commercial mediation has yet to see development. The promotion is currently helped by VIAC, which hosts its own set of modern mediation procedures. The rules, which were developed in 2007, open a gate for businesses to have their disputes resolved amicably within the country. However, other institutions such as the ICC or KLRCA may be used.

Vietnam is also home to numerous legally and/or commercially trained mediators – both Vietnamese and foreign – with the professional capacity to facilitate proceedings. Parties also always have the option to engage specialised mediators from overseas for larger or more complex disputes.

One notable concern that businesses often raise as a reason for avoiding mediation is the binding nature and court recognition of the ensuing settlements. While the settlement agreements will naturally give rise to contractual rights, the agreements are not recognised in the same way as a court judgment or arbitral award. This stance is not very different to the legal position of many other developed Asian countries such as Singapore, and simply enforces the amicable nature of the process.

It is worth noting that enforceability is a concern that is seldom raised. Even in other jurisdictions, court proceedings to enforce mediation settlement agreements are rarely pursued because a mediation settlement’s aim is to encapsulate the parties’ amicable resolution. As parties do not enter into it with an adversarial mindset, it would be highly unusual for a party to renege on its commitments (and risk severing the relationships that they have attempted to preserve).

Nevertheless, for those who seek certainty, Article 58 of the Law on Commercial Arbitration is unique in that it provides for formal recognition of a “decision” concluded through mediation in the same way an arbitral award is enforced. While helpful, the law makes it expressly clear that this will only apply to mediations conducted under the umbrella of arbitration and facilitated by the same arbitrator(s) – i.e., through a costlier and longer arbitration-mediation hybrid process.

Therefore, the only basis for enforcing pure mediation settlements under the current legal framework of Vietnam – for those settled at both the VIAC other foreign institutions – is contract-based. Accordingly, any disputes will be resolved largely against on how the settlement agreement is devised and potential claims will be made for a breach of contract.

Still out of favour

Despite the overwhelming advantages of mediation, to date, fewer than 10 cases have been adjudicated under VIAC’s dedicated rules. The response is particularly surprising, as mediation can often mean the difference between several billion VND and several million VND in legal fees. It can also mean the difference between several months (or years!) in contentious proceedings and several days of negotiations.

The success rate of mediation has been well documented. For businesses who have mutually agreed to commercial mediation, the ICC has cited an impressive settlement rate of over 75 per cent for cases remitted to their procedures.

In light of these advantages, it is no surprise that the use of commercial mediation has expanded globally. Given Vietnam’s pro-mediation stance for domestic disputes, we hope the country will eventually follow suit with a more rigorous legal framework and institutional support to promote it.

Nevertheless, albeit uncommon, mediation presently remains an attractive and viable option in Vietnam, while the process is gaining traction in other countries. Therefore, companies doing business in Vietnam will benefit from thinking twice about how their commercial disputes should be resolved – perhaps even including a detailed mediation clause as part of their business agreements (often as a pre-arbitration stage).

After all, when the alternative is an expensive drawn-out litigation or arbitration, it is clear that there is much to gain and little to lose from trying commercial mediation.

By Vietnam Law Insight, LNT & Partners.

Disclaimer: This Briefing is for information purposes only. Its contents do not constitute legal advice and should not be regarded as detailed advice in individual cases. For more information, please contact us or visit the website: Http://LNTpartners.com