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THE
STANDING COMMITTEE OF NATIONAL ASSEMBLY
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SOCIALIST
REPUBLIC OF VIET NAM
Independence - Freedom Happiness
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No:
42-L/CTN
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Hanoi,
September 14, 1995
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ORDINANCE
ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS IN VIETNAM
With a view to expanding and
developing economic relations with foreign countries, and to protecting the
interests of the State as well as the legitimate rights and interests of Vietnamese
and foreign organizations and individuals;
Pursuant to Article 91 of the 1992 Constitution of the Socialist Republic of
Vietnam; and
Pursuant to the Resolution of the Sixth Session of the Ninth National Assembly
on the law-making activities for 1995;
This Ordinance prescribes the recognition and enforcement of foreign arbitral
awards in Vietnam,
Chapter I
GENERAL PROVISIONS
Article 1.-
Foreign arbitral awards.
In this Ordinance, a
"foreign arbitral award" is understood as the award which is made outside
the territory of Vietnam by an arbitrator selected by the parties concerned to
settle dispute arising from commercial law relations.
"Foreign arbitral
awards" also include awards that are made in the territory of Vietnam but
not by Vietnamese arbitrators.
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1. Vietnamese Courts handle the
recognition and enforcement of a foreign arbitral award in Vietnam in case the
award is made in, or by an arbitrator of, a country which has together with the
Socialist Republic of Vietnam signed or acceded to an international agreement
on this matter.
A foreign arbitral award can
also be recognized and enforced in Vietnam by Vietnamese Courts on a reciprocal
basis without either side having signed or acceded to an international
agreement.
2. A foreign arbitral award
shall be enforced in Vietnam after it is recognized and its enforcement is
ordered by a Vietnamese Court. The enforcement must be carried out in
conformity with this Ordinance and provisions of Vietnamese law on the
enforcement of civil sentences.
Article 3.-
Right to request recognition and to order enforcement.
The organization and/or
individual in favor of which/whom an award is enforced or their legitimate
representatives have the right to request the Court to recognize and enforce a
foreign arbitral award in Vietnam, if the organization against which the award
is enforced has its headquarters in Vietnam; or the individual against whom the
award is enforced resides and/or works in Vietnam; or if the assets related to
the enforcement are available in Vietnam at the moment the request is sent.
Article 4.-
Competent Courts to handle requests for recognition and enforcement.
The competent Courts to handle
requests for the recognition and enforcement of foreign arbitral awards in
Vietnam are the People's Courts of the provinces and cities directly under the
Central Government, where the organization against which the award is enforced
has its headquarters, or where the individual against whom the award is enforced
resides and/or works, or where the assets related to the enforcement are
available.
Article 5.-
Guarantee of the right to appeal or protest.
1. A Court decision recognizing
or not recognizing a foreign arbitral award may be appealed by the organization
or person in question, or by the Procuracy.
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3. The Supreme People's Court
handles appeals against decisions made by the People's Courts of the provinces
and cities directly under the Central Government regarding the recognition and
enforcement of foreign arbitral awards in Vietnam.
Article 6.-
Guarantee of the legal effect of Courtdecisions on the recognition and
enforcement of foreign arbitral awards in Vietnam.
1. Foreign arbitral awards
recognized and enforced in Vietnam by Vietnamese Courts have the same legal
effect as the already effective decisions made by Vietnamese Courts.
2. The Court decisions, which
have taken legal effect concerning the recognition and enforcement of foreign
arbitral awards in Vietnam, must be strictly implemented by the parties
concerned, and respected by State authorities, economic and social
organizations, the people's armed forces and all citizens.
In case the organization or
individual against which or whom the award is enforced is not willing to
implement the effective Court decision, enforcement measures shall be applied
in accordance with Vietnamese law.
Article 7.-
Notification of Court decisions.
Immediately after the decision
mentioned in Item 1 of Article 14, Item 5 of Article 15, and Item 3 of Article
19, of this Ordinance is made, the Court shall, through the Ministry of
Justice, notify the organization or individual requesting the recognition and
enforcement of the decision.
Article 8.-
Guarantee of the right to transfer money and properties related to the
enforcement of foreign arbitral awards.
The State of the Socialist
Republic of Vietnam guarantees the transfer of money and assets acquired from
the enforcement of foreign arbitral awards from Vietnam to foreign countries;
the transfer of money and assets shall be carried out in accordance with
Vietnamese law.
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The organizations/individuals
sending the request as provided for in Article 10 of this Ordinance shall have
to pay fees.
The Government shall stipulate
in detail the level of the fees, procedures for their payment and for their
management and utilization.
Chapter II
HANDLING OF REQUESTS FOR
RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN VIETNAM
Article
10.- Request for the recognition and enforcement of foreign arbitral awards in
Vietnam.
1. Requests for the recognition
and enforcement of foreign arbitral awards in Vietnam shall be sent to the
Vietnamese Ministry of Justice.
2. The request mentioned in Item
1 of this Article must include the following:
a/ The full name and address of
the headquarters of the organization in favor of which the award is enforced;
the full name and address of the individual in favor of whom the award is
enforced; or the organization's or the individual's legal representatives in
Vietnam, if available;
b/ The full name and address of
the headquarters of the organization against which the award is enforced; or
the full name, place of residence and work of the individual against whom the
award is enforced.
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c/ The request of the
organization/individual in favor of which/whom the award is enforced.
3. Requests written in foreign
languages must be translated into Vietnamese, and the translations must be duly
certified in accordance with Vietnamese law.
Article
11.- Papers attached to the requests.
1. Attached to the requests
provided for in Article 10 of this Ordinance shall be papers stipulated in
international agreements which the Socialist Republic of Vietnam has signed or
acceded to as mentioned in Item 1, Article 2 of this Ordinance.
In case the aforesaid
international agreements do not mention the papers to be attached to the
requests, or in case there is no relevant international agreement, the
following papers must be attached to the request:
a/ The original foreign arbitral
award, or its copy duly certified in accordance with Vietnamese law.
b/ The original agreement on
arbitration or its copy duly certified in accordance with Vietnamese law.
The agreement on arbitration
mentioned in Point b, Item 1 of this Article is a written document agreed upon
by the parties on the resolution of their disputes which may arise or have
already arisen according to the arbitration modalities prescribed by the laws
of the countries concerned.
An agreement on arbitration can
be an arbitral provision laid down in a contract, or a separate agreement on
arbitration concluded by the parties after a dispute arises. The conclusion of
this agreement can be done by way of correspondence.
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Article
12.- Transfer of files to the Court.
1. Within 7 days from the
receipt of the request and other legal papers, the Ministry of Justice shall
transfer the file(s) to the competent Court provided for in Article 4 of this
Ordinance.
2. In case the Ministry of
Justice has already transferred the file(s) to the Court, but later received a
notice from the competent body of the foreign country mentioned in Point c,
Item 1, Article 16 of this Ordinance, saying that the foreign arbitral award is
being handled, or has been overruled, or the implementation of the award has
been suspended, the Ministry of Justice shall send a written notice to the
Court, which shall make an appropriate decision in accordance with Points
a and c of Item 1, Article 14, Item 3, Article 19, and Item 4, Article 20, of
this Ordinance.
Article
13.- Receipt and study of file(s).
1. Upon receipt of the file(s)
from the Ministry of Justice, the Court has to study them and notify the
organization/individual against which/whom the award is enforced, and the
Procuracy of the same level.
2. The Court has the right to
request the organization/individual which/who has sent the request to explain
matters that are not clear in the file(s).
Article
14.- Preparation for the handling of the request.
1. Within two months from the
receipt of the file(s), the Court, depending on each case, shall make one of
the following decisions:
a/ Temporary suspension of the
handling of the request in case the Court has received a written notice from the
Ministry of Justice informing that the competent body of the foreign country
was considering the possibility of overruling, or suspending the implementation
of, the foreign arbitral award.
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c/ Suspension of the handling of
the request in case a written notice is received from the Ministry of Justice
informing that the competent body of the foreign country has canceled, or
suspended the implementation of, the foreign arbitral award;
d/ Suspension of the handling of
the request and returning the file(s) to the Ministry of Justice if they are
beyond the Court's authority; if the organization against which the award is
enforced does not have its headquarters in Vietnam, if the individual against
whom the award is enforced does not reside and/or work in Vietnam; or the
location where assets related to the enforcement of the award are available
cannot be found;
e/ Opening a Court session to
handle the request.
In case a clarification of
stipulation in Item 2, Article 13 of this Ordinance is requested, the time
limit can be extended for two months.
2. The Court shall open a
session to handle the request within 15 days from the date the decision
mentioned in Point e, Item 1 of this Article is made. Within 7 days after the
decision to open the Court session is issued, the Court has to transfer the
file(s) to the Procuracy of the same level.
Article
15.- Court session to handle the request.
1. A request shall be handled at
a Court session by a panel of three judges, one of whom shall be in the chair.
2. A prosecutor from the
Procuracy of the same level must participate in the session. In case the
procurator is absent, the Court session must be postponed.
3. The Court session shall be
held in the presence of the lawful representative of the organization against
which the award is enforced, the individual against whom the award is enforced,
or of his/her lawful representative. These persons shall be summoned to the
Court in accordance with Vietnamese law.
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4. While handling the request,
the panel does not retry the dispute already settled by the foreign arbitrator,
but only examines and compares the foreign arbitral award and the attached
papers with the provisions of this Ordinance, other provisions of Vietnamese
law and international agreements which the Socialist Republic of Vietnam has
signed or acceded to, in order to make decision.
5. After considering the
request, the attached papers and evidence, if any, and hearing the persons
summoned and the Procurator, the Panel shall discuss and decide the case by
majority of votes.
The panel of judges has the
right to make a decision to recognize and enforce, or not to recognize and
enforce, a foreign arbitral award.
Article
16.- Cases in which a foreign arbitral award is not recognized.
1. A foreign arbitral award
shall not be recognized and enforced in Vietnam if the organization/individual
against which/whom the award is enforced has legitimate evidence for the Court
to confirm that:
a/ The parties to the agreement
on arbitration mentioned in Item 1, Article 11 of this Ordinance, are not
legally capable of signing that agreement in accordance with the law applied to
each party; the agreement on arbitration is not legally valid under the law of
the country which was chosen by the parties, or under the law of the country
where the award was made, in case the parties did not choose the law to be
applied for that agreement;
b/ The organization/individual
against which/whom the award is enforced was not given timely and proper notice
on the selection of the arbitrators and the procedures for resolving the
dispute through arbitration; or for other legitimate reasons this
organization/individual cannot exercise its/his or her rights of proceedings.
c/ The foreign arbitral award is
made over a dispute which was not requested for settlement by the parties or
beyond the request of the parties to the agreement on arbitration. In case the
decision on a requested issue can be separated from one not requested for
settlement through arbitration, the decision on a requested issue can be
recognized and enforced in Vietnam.
d/ The composition of the
arbitral body and/or procedure for resolving the dispute through arbitration
vary with the agreement on arbitration or with the law of the country where the
award was made, in case the agreement on arbitration does not stipulate the
matters;
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f/ The arbitral award has been
overruled or suspended by the competent authority of the country where the
award was made, or of the country the law of which applies to the rendering of
awards.
2. A foreign arbitral award is
not recognized and enforced in Vietnam if the Court decides that:
a/ Under Vietnamese law the
dispute shall not be resolved by way of arbitration;
b/ The recognition and
enforcement of the foreign arbitral award in Vietnam are contrary to basic
principles of Vietnamese law.
Article
17.- Sending a copy of the Court decision to the Procuracy.
Immediately after the decision
mentioned in Item 1, Article 14, and Item 5, Article 15, of this Ordinance, is
made, the Court shall send a copy of that decision to the Procuracy of the same
level.
Article
18.- Appeals.
1. Within 15 days from the date
the Court made the decision mentioned in Points a, b, c and d of Item 1,
Article 14, and Item 5, Article 15, of this Ordinance, the parties, or their
lawful representatives, have the right to appeal the decision.
The appeal must clearly state
the reasons and the protest.
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2. The Procuracy of the same
level or the Supreme People's Procuracy has the right to appeal the Court
decision mentioned in Points a, b, c and d of Item 1, Article 14, and Item 5,
Article 15, of this Ordinance.
The time limit for the appeal by
the Procuracy of the same level is 15 days, and that by the Supreme People's
Procuracy is 30 days, starting from the date of the Court's decision.
Article
19.- Hearing of Appeals.
1. The Supreme People's Court
shall hear the appeal against a decision by the People's Court of the province
or city under the Central Government within one month from the date the appeal
is received; if explanations are necessary as stipulated in Item 2, Article 13,
of this Ordinance, the time limit is extended for two more months.
2. The panel to hear the appeal
shall be composed of three judges, one of whom being in the chair.
The procedure for hearing
appeals is similar to that for hearing requests provided for in Article 15 of
this Ordinance.
3. The panel has the right to
keep intact, or to partly or fully change, the decision made by the People's
Court of the province or city under the Central Government; to temporarily
suspend or to suspend the appeal in cases the appellant withdraws the appeal;
or the Procuracy withdraws the appeal, or there are reasons for doing so as
provided for in Points a, b and c, Item 1, Article 14 of this Ordinance.
The decision by the Supreme
People's Court is final and effective.
Article
20.- Enforcement of foreign arbitral awards.
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2. The enforcement of foreign
arbitral awards in Vietnam must be carried out in accordance with the
Vietnamese law on civil verdicts enforcement.
3. In case a written notice is
received from the Ministry of Justice to the effect that the foreign competent
authority is considering the possibility of overruling or suspending the
implementation of the foreign arbitral award that has already been recognized
to be enforced in Vietnam, the Head of the civil verdicts enforcement agency
shall make a decision to temporarily suspend the enforcement of the award, and
send a copy of that decision to the Court which made the decision on the
recognition and enforcement of the foreign arbitral award in Vietnam.
The Head of the civil verdicts
enforcement agency may take necessary measures to ensure the continued
enforcement of the foreign arbitral award if so requested by the
organization/individual in favor of which/whom the award is enforced.
4. Immediately after receiving
the written notice from the Ministry of Justice saying that the competent
foreign authority has already overruled or suspended the enforcement of the
foreign arbitral award, the Court which made the decision on the recognition
and enforcement of the award in Vietnam shall make a decision repealing its
previous decision, and send a copy of this decision to the enforcement agency.
Immediately after receiving the
decision of the Court, the Head of the civil verdicts enforcement agency shall
issue a decision to suspend the enforcement of the foreign arbitral award.
Chapter
III
FINAL PROVISIONS
Article
21.- Application of international agreements.
In case an international
agreement which the Socialist Republic of Vietnam has signed or acceded to,
contains provisions contrary to the provisions of this Ordinance, the
provisions of the international agreement shall prevail.
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In case a decision made by a
Vietnamese arbitrator or a request by a Vietnamese organization/individual on
the recognition and enforcement of an arbitral award in a foreign country is
rejected by the competent authorities of that country on the ground of
discrimination, Vietnamese Courts have the right to apply corresponding
retaliatory measures to the handling of requests for the recognition and
enforcement of arbitral awards by that country in Vietnam, or to requests made
by organizations/individuals of that country regarding this matter.
Article
23.- Effectiveness of Ordinance.
This Ordinance takes effect from
January 1st, 1996
Article
24.- Implementation provision.
The Government, the Supreme
People's Court, and the Supreme People's Procuracy within their respective
competence shall issue detailed regulations for the implementation of this
Ordinance.
ON
BEHALF OF THE STANDING COMMITTEE OF THE NATIONAL ASSEMBLY
CHAIRMAN
Nong Duc Manh
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