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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:
08/2003/PL-UBTVQH
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Hanoi,
February 25, 2003
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ORDINANCE
ON COMMERCIAL ARBITRATION
(No. 08/2003/PL-UBTVQH of February 25, 2003)
In order to contribute to
settling disputes arising from commercial activities, ensure the rights to
business freedom, protect the rights and legitimate interests of the involved parties,
and develop the market economy along the socialist orientation;
Pursuant to the 1992 Constitution of the Socialist Republic of Vietnam, which
was amended and supplemented under the Xth National Assembly’s Resolution No.
51/2001/QH10 of December 25, 2001 at its 10th session;
Pursuant to the XIth National Assembly’s Resolution No. 12/2002/QH11 of
December 16, 2002 at its second session on the law- and ordinance-making
programs for the 11th term (2002-2007) and for 2003;
This Ordinance provides for commercial arbitration,
Chapter I
GENERAL PROVISIONS
Article 1.-
Scope of regulation
This Ordinance provides for the
arbitration organization and procedures for settling disputes arising from
commercial activities as agreed upon by the involved parties.
Article 2.-
Interpretation of terms
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1. Arbitration is a mode of
settling disputes that arise from commercial activities, which is agreed upon
by the involved parties and carried out according to the proceeding order and
procedures prescribed by this Ordinance.
2. Arbitration agreement is an
agreement between the involved parties pledging to settle through arbitration
disputes which may arise or have arisen in commercial activities.
3. Commercial activities means
the performance of one or many trading acts by business people or
organizations, including goods purchase and sale, service provision;
distribution; trade representation and agency; consignment; renting and lease;
hire purchase; construction; consultancy; technology; licensing; investment;
financing; banking; insurance; exploration and exploitation; transport of goods
and passengers by air, sea, rail, land , and other commercial acts as
prescribed by law.
4. Disputes involving foreign
elements are those arising from commercial activities with one participating
party or all participating parties being foreigners, foreign legal persons, or
those with the bases for establishing, changing or terminating disputed
relationships arising abroad or with involved properties situated abroad.
5. Arbitrators are those who
satisfy all conditions specified in Article 12 of this Ordinance, are selected
by the involved parties or appointed by Arbitration Centers or competent courts
to settle disputes.
6. Relatives are those who
belong to the three inheritance ranks prescribed by the Civil Code.
7. Force majeure events are
events occurring objectively, unforeseeably and irremediably though every
possible necessary measure has been taken
Article 3.-
Principles for dispute settlement through arbitration
1. Disputes shall be settled
through arbitration if the involved parties reach an arbitration agreement
before or after the disputes arise
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Article 4.-
Forms of dispute settlement through arbitration
Disputes between the involved
parties shall be settled at the Arbitration Council organized by the
Arbitration Centers or at the Arbitration Councils set up by the involved
parties under the provisions of this Ordinance.
An Arbitration Council shall be
composed of three arbitrators or a sole arbitrator as, agreed upon by the
involved parties.
Article 5.-
Jurisdiction to settle disputes in cases where there is arbitration agreement
For cases of dispute where there
is arbitration agreement, if one party initiates a lawsuit at a court, the
court must refuse to handle them, unless such arbitration agreement is invalid.
Article 6.-
Effect of arbitral awards
Arbitral awards shall be final
and binding on all the involved parties, except where they are cancelled by
courts under the provisions of this Ordinance.
Article 7.-
Principles for application of laws to settling disputes
1. For disputes between
Vietnamese parties, the Arbitration Councils shall apply Vietnamese laws to
settling them.
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Where the involved parties fail
to select laws for settling their disputes, the Arbitration Councils shall make
decision.
Article 8.-
Application of international agreements
If an international agreement
which the Socialist Republic of Vietnam has signed or acceded to contains
provisions different from those of this Ordinance, the provisions of such
international agreement shall apply.
Chapter II
ARBITRATION AGREEMENT
Article 9.-
Forms of arbitration agreement
1. The arbitration agreements
must be made in writing. Arbitration agreements reached through mails,
telegrams, telex, fax, electronic mails or other written forms clearly
expressing the wills of the involved parties to settle their disputes through
arbitration shall be regarded as written arbitration agreements.
2. Arbitration agreement may be
an arbitration clause in contracts or a separate agreement.
Article
10.- Invalid arbitration agreements
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1. Disputes arise not from
commercial activities specified in Clause 3, Article 2 of this Ordinance;
2. The signers of the
arbitration agreement are not competent to sign according to the law
provisions;
3. One signer of the arbitration
agreement does not have full civil act capacity;
4. The arbitration agreement
fails to specify or specifies unclearly the disputed objects, or the
arbitration institution competent to settle the dispute, but later the involved
parties have no additional agreement;
5. The arbitration agreement has
not been made under the provisions of Article 9 of this Ordinance;
6. The signers of the
arbitration agreement are cheated, intimidated and request the arbitration
agreement to be declared invalid; the statute of limitations for making such
requests is six months as from the date of signing of the arbitration agreement
but must be prior to the date on which the Arbitration Council holds the first
meeting to settle the dispute under the provisions of Article 30 of this
Ordinance.
Article
11.- Relationship between the arbitration clause and contracts
The arbitration clause exists
independently from contracts. The modification, extension, cancellation or
invalidity of contracts shall not affect the effect of the arbitration clause.
Chapter III
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Article
12.- Arbitrators
1. Vietnamese citizens may act
as arbitrators if they fully satisfy the following conditions:
a/ Having full civil act
capacity;
b/ Having good moral quality,
being honest, impartial and objective;
c/ Possessing university
diplomas and having worked in the branches of their study majors for five years
or more.
2. Those who are under
administrative probation, examined for penal liability or have been convicted
but not yet enjoyed remission of criminal records shall be prohibited to act as
arbitrators.
3. Judges, prosecutors,
investigators, executioners and public employees working at the People’s
Courts, People’s Procuracies, investigating agencies and judgment-executing
agencies shall not be allowed to act as arbitrators.
Article
13.- Rights and obligations of arbitrators
1. Arbitrators shall have the
following rights:
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b/ To work independently in the settlement
of disputes;
c/ To refuse to supply
information related to disputes;
d/ To enjoy remuneration.
2. Arbitrators shall have the
following obligations:
a/ To comply with the provisions
of this Ordinance;
b/ To be impartial and objective
in the settlement of disputes;
c/ To refuse to settle disputes
in the cases specified in Clause 1, Article 27 of this Ordinance;
d/ To keep secret the contents
of the disputes they have settled;
e/ Not to take bribes or commit
other acts in breach of arbitrators’ ethics.
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ARBITRATION CENTERS
Article
14.- Conditions for setting up Arbitration Centers
1. On the basis of the
socio-economic development situation in localities, Arbitration Centers shall
be set up in a number of localities under the Government’s regulations.
2. The Minister of Justice shall
consider and decide to license the setting up of an Arbitration Center when it
is so requested by at least five founders who are fully qualified to act as
arbitrators under the provisions of Article 12 of this Ordinance and
recommended by Vietnam Lawyers’ Association.
3. A dossier of application for
setting up an Arbitration Center includes:
a/ The application for setting
up an Arbitration Center;
b/ Full names, addresses and
professions of the founders;
c/ The Arbitration Center’s
charter;
d/ Written recommendation of
Vietnam Lawyers’ Association.
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a/ The date on which the
application is made;
b/ Full names, addresses and
professions of the founders;
c/ The operation fields of the
Arbitration Center;
d/ The expected location of the
head office of the Arbitration Center.
5. Within 45 days after
receiving valid dossiers, the Minister of Justice shall grant licenses to set
up Arbitration Centers and approve their charters; in case of refusal, he/she
must reply in writing, clearly stating the reasons therefor.
6. Within 30 days after
receiving the establishment licenses, the Arbitration Centers must register
their operation at the Justice Services of the provinces or centrally-run
cities (hereinafter collectively referred to as the provincial Justice
Services) where they are headquartered. Past this time limit, if the
Arbitration Centers fail to make such registration, their licenses shall be
withdrawn.
The Government shall prescribe
the order and procedures for registration of operation of the Arbitration
Centers.
Article
15.- Publication on newspapers of the setting up of Arbitration Centers
1. Within 30 days after being granted
the operation registration papers, the Arbitration Centers must publicize on
central daily newspapers or local newspapers of the localities where they have
made operation registration for three consecutive issues the following major
contents:
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b/ The operation fields of the
Arbitration Centers;
c/ The operation registration
papers’ serial numbers, the granting agencies, and the dates of issuance ;
d/ The time of commencement of
operation of the Arbitration Centers.
2. The Arbitration Centers must
post up at their head-offices the contents specified in Clause 1 of this
Article and the lists of arbitrators.
Article
16.- Legal status and organizational structure of Arbitration Centers
1. Arbitration Centers are
non-governmental organizations, having the legal status, own seals and
accounts.
2. Arbitration Centers may set
up branches and representative offices.
3. Arbitration Centers shall
have executive boards and arbitrators.
The executive board of an
Arbitration Center shall be composed of a president, one or several
vice-presidents, and possibly a general secretary appointed by the president.
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Article
17.- Tasks and powers of Arbitration Centers
The Arbitration Centers shall
have the following tasks and powers:
1. To formulate their charters
and proceeding rules, which, however, must not be contrary to the provisions of
this Ordinance;
2. To invite fully qualified
persons as defined in Article 12 of this Ordinance to act as their arbitrators;
3. To appoint arbitrators for
setting up Arbitration Councils under the provisions of this Ordinance;
4. To provide administrative and
office services for Arbitration Councils to settle disputes;
5. To collect arbitration
charges, pay remuneration to arbitrators according to their charters;
6. To draw experiences, foster
arbitrators to raise their dispute-settling capabilities and skills;
7. To report periodically on
their operation to the Ministry of Justice, Vietnam Lawyers’ Association and
the provincial Justice Services of the localities where they have made
operation registration;
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9. To archive dossiers, supply
copies of the arbitral awards at the requests of the involved parties or competent
Sate bodies;
10. Other tasks and powers as
prescribed by law.
Article
18.- Termination of operation of Arbitration Centers
1. The Arbitration Centers shall
terminate their operation in the following cases:
a/ The cases specified in their
charters;
b/ Having their establishment
licenses withdrawn.
2. Upon termination of their
operation, the Arbitration Centers must return their establishment licenses to
the license-granting agencies.
3. The Government shall specify the
order and procedures of termination of operation of the Arbitration Centers.
Chapter V
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Article
19.- The right to select forms of dispute settlement in the settlement of
disputes arbitration
The involved parties shall have the
right to select Arbitration Centers or Arbitration Councils set up by
themselves for settling their disputes according to the arbitral proceeding
provisions of this Ordinance.
Article
20.- Claims
1. In order to settle disputes
at an Arbitration Center, the claimants must send claims to the Arbitration
Center.
Such a claim shall include the
following principal contents:
a/ The date on which the claim
is made;
b/ The names and addresses of
the involved parties;
c/ Summarized contents of the
dispute;
d/ The claimant’s requests;
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f/ The arbitrator at the
Arbitration Center, who is selected by the claimant.
2. In order to settle disputes
at the Arbitration Centers set up by the involved parties, the claimants must
make claims and send them to the respondents; The contents of such a claim
shall comply with the provisions in Clause 1 of this Article.
3. The claimants must enclose
their claims with the originals or copies of the arbitration agreements, the
originals or copies of documents and evidences. Copies must be duly notarized.
4. For disputes to be settled at
the Arbitration Centers set up by the involved parties, the arbitral
proceedings shall commence from the time when the Arbitration Centers receive
claims of the claimants or when the respondents receive claims from the
claimants.
5. Within five working days
after receiving the claims, the Arbitration Centers must send to the
respondents the copies thereof and documents prescribed in Clause 3 of this
Article.
Article
21.- Statute of limitations for initiating dispute settlement through
arbitration
1. For disputes for which the
statute of limitations is prescribed by law, such law provisions shall apply.
2. For disputes for which the
statute of limitations is not prescribed by law, the statute of limitations for
initiating the settlement thereof through arbitration shall be two years as
from the date the disputes occur, except for cases of force majeure events. The
duration not included in the statute of limitations shall be counted from the
date such an event occurs to the date it disappears.
Article
22.- Arbitration charges
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2. In case of settlement of
disputes at the Arbitration Centers, the executive boards of the Arbitration
Centers shall determine arbitration charges according to the Centers’ charters.
3. In case of settlement of
disputes at the Arbitration Councils set up by the involved parties, the
arbitration charges shall be determined by the Arbitration Councils.
4. The losers must pay
arbitration charges, unless otherwise agreed upon by the involved parties.
Article
23.- Places of arbitration
The involved parties may agree upon
the places for dispute settlement, if they have no such agreement, the
Arbitration Councils shall decide but must ensure convenience for the involved
parties in the settlement.
Article
24.- Self-defense statements
1. For disputes to be settled by
the Arbitration Centers selected by the involved parties, the respondents must
send their self-defense statements to the Arbitration Centers within 30 days
after receiving the claimants’ claims and enclosed documents sent from the
Arbitration Centers, unless otherwise agreed upon by the involved parties.
For disputes to be settled at
the Arbitration Councils set up by the involved parties, the respondents must
send their self-defense statements to the claimants and the names of the
arbitrators selected by themselves within 30 days after receiving the
claimants’ claims and enclosed documents specified in Clauses 2 and 3, Article
20 of this Ordinance, unless otherwise agreed upon by the involved parties.
2. A self-defense statement must
contain the following principal contents:
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b/ The name and address of the
respondent;
c/ Self-defense arguments and
evidences, including rejection of part or the whole of the claimant’s claim.
Apart from the contents specified at this Point, if the respondents hold that
the disputes do not fall under the settling jurisdiction of the arbitration,
there is no arbitration agreement or the arbitration agreement is invalid, they
may point it out in their self-defense statements.
3. At the respondents’ requests,
the time limit for the respondents to send their self-defense statements
enclosed with evidences may be longer than 30 days but must be before the date
when the Arbitration Councils meet under the provisions of Article 30 of this
Ordinance.
Article
25.- Setting up of Arbitration Councils at the Arbitration Centers
1. Unless otherwise agreed upon
by the involved parties, within five working days after receiving the claims,
the Arbitration Centers must send to the respondents the copies thereof, the
names of the arbitrators selected by the claimants and enclosed documents
together with the lists of arbitrators of the Arbitration Centers. Unless
otherwise agreed upon by the involved parties, within 30 days after receiving
the claims and enclosed documents sent by the Arbitration Centers, the
respondents must select arbitrators from the lists of arbitrators of the
Arbitration Centers. and inform the Arbitration Centers thereof or to request
the presidents of the Arbitration Centers to appoint arbitrators for them. Past
this time limit, if the respondents fail to select arbitrators or to request
the presidents of the Arbitration Centers to appoint arbitrators, the
presidents of the Arbitration Centers shall appoint arbitrators on the lists of
arbitrators of their Arbitration Centers for the respondents within seven
working days as from the expiry of the time limit prescribed in this Clause.
2. Where a dispute involves many
respondents, the respondents must reach agreement on selecting one arbitrator
within 30 days after receiving the Arbitration Center’s request to select an
arbitrator. Past this time limit, if the respondents fail to select an
arbitrator, the president of the Arbitration Center shall appoint an arbitrator
from the list of arbitrators of his/her Arbitration Center for the respondents
within seven working days after receiving the request.
3. Within 15 days after two
arbitrators are selected by the involved parties or appointed by the president
of the Arbitration Center, these arbitrators must select the third arbitrator
from the list of arbitrators of the Arbitration Center as chairman of the
Arbitration Council. Past this time limit, if the two selected or appointed
arbitrators fail to select the third arbitrator, the president of the
Arbitration Center shall appoint the third arbitrator from the list of
arbitrators of his/her Arbitration Center as chairman of the Arbitration
Council within seven working days after the expiry of the time limit.
4. Where the involved parties
agree that their dispute shall be settled by a sole arbitrator of the
Arbitration Center but fail to select such an arbitrator, the president of the
Arbitration Center shall appoint the sole arbitrator for them within 15 days
after receiving their request and notify them thereof.
The sole arbitrator shall act as
an Arbitration Council. The sole arbitrator’s awards shall be as effective as
those of an Arbitration Council.
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1. Unless otherwise agreed upon
by the involved parties, within 30 days after the date on which the claimants
send their claims to the respondents, the latter must select arbitrators and
notify the claimants thereof. Past this time limit, if the respondents fail to
notify the claimants of the names of the selected arbitrators, the claimants
may request the courts of the provinces or centrally-run cities (hereinafter
referred collectively to as the provincial-level courts) where the respondents
are headquartered or reside to appoint arbitrators for the respondents. Within
seven working days after receiving such written requests, the chief judges of
the courts shall assign one judge to appoint arbitrators for the respondents
and notify the involved parties thereof.
2. Where a dispute involves many
respondents, the respondents must reach agreement on selecting one arbitrator
within 30 days after receiving the claimants’ claims and enclosed documents.
Past this time limit, if the respondents fail to select an arbitrator, the
claimants may request the provincial-level court of the locality where one of
the respondents is headquartered or resides to appoint an arbitrator for the
respondents. Within seven working days after receiving such written request,
the chief judge of the court shall assign one judge to appoint an arbitrator at
the request of the claimant and notify the involved parties thereof.
3. Within 15 days after two
arbitrators are selected by the involved parties or appointed by the court,
these arbitrators must reach agreement on selecting the third arbitrator as
chairman of the Arbitration Council. Past this time limit, if the two selected
or appointed arbitrators fail to select the third arbitrator, the involved
parties may request the provincial court of the locality where the respondent
is headquartered or resides to appoint the third arbitrator. Within seven
working days after receiving such written request, the chief judge of the court
shall assign one judge to appoint the third arbitrator as chairman of the
Arbitration Council and notify the involved parties thereof.
4. Arbitrators selected by the
involved parties or by courts may be those on or not on the lists of
arbitrators of Vietnam’s Arbitration Centers.
5. Where the involved parties
agree that their disputes shall be settled by a sole arbitrator but fail to
select such an arbitrator, at the request of one party, the chief judge of the
provincial court of the locality where the respondent is headquartered or
resides shall assign one judge to select the sole arbitrator for the involved
parties within 15 days after receiving such request, then notify the involved
parties thereof.
The sole arbitrator shall act as
an Arbitration Council. The sole arbitrator’s awards shall be as effective as
those of an Arbitration Council.
Article
27.- Replacement of arbitrators
1. Arbitrators must refuse to
settle disputes or the involved parties may request change of arbitrators to
settle their disputes in the following cases:
a/ Arbitrators are relatives of
either party or representatives of such party;
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c/ There are explicit grounds
that arbitrators are not impartial nor objective while performing their duties.
2. From the time of being
selected or appointed and during the process of arbitral proceedings, the
arbitrators must notify in a public and timely manner any matters that may
cause doubts over their impartiality and objectivity.
3. After having selected their
arbitrators, should the involved parties discover that their selected arbitrators
fall into one of the cases specified in Clause 1 of this Article, they may
request such arbitrators to refuse to settle disputes.
4. Replacement of arbitrators
shall be decided by the other arbitrators in the Arbitration Councils. Where a decision
cannot be made or if both arbitrators refuse or the sole arbitrator refuses to
settle the dispute, the change of arbitrator shall be effected as follows:
a/ For disputes to be settled by
Arbitration Centers, the presidents of the Arbitration Centers shall decide;
b/ For disputes to be settled by
Arbitration Councils set up by the involved parties, at the claimants’
requests, the chief judges of the provincial-level courts of the localities
where the respondents are headquartered or reside shall assign one judge to
consider and made decision. The courts’ decisions are final ones.
5. During the process of
arbitral proceedings, if an arbitrator cannot continue his/her participation,
the replacement of such arbitrator shall comply with the provisions of Clause 4
of this Article, depending on whether the Arbitration Council is set up by the
Arbitration Center or by the involved parties
6. In case of necessity, after
consulting the involved parties, the newly-set up Arbitration Councils may
review matters already considered in the previous dispute settlement meetings.
Article
28.- Amendment, supplementation or withdrawal of claims
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Article
29.- Counter-claims
1. The respondents may file
counter-claims against the claimants on matters related to the latter’s
demands.
2. Counter-claims must be sent
to the Arbitration Councils and concurrently to the claimants before the date
when the Arbitration Councils open meetings to settle the claimants’ claims.
The claimants must issue written
statements in reply to the counter-claims within 30 days after receiving such
counter-claims. Such written statements must be sent to the respondents and the
Arbitration Councils.
3. The counter-claim procedures
shall be the same as those for settling the claimants’ claims and
simultaneously settled by the Arbitration Councils.
Article
30.- Examination of arbitration agreements, Arbitration Councils’
jurisdiction to settle disputes
1. Before considering the
dispute’s details, if any party lodges a written complaint that the Arbitration
Council has no jurisdiction to settle the dispute; the dispute has no
arbitration agreement or the arbitration agreement is invalid, the Arbitration
Council must consider the written complaint and make decision in the presence
of the involved parties, unless otherwise requested by the involved parties. If
the complainants, though having been summoned properly, are absent without
plausible reasons, they shall be deemed to have withdrawn their complaints. The
Arbitration Councils shall continue to consider and settle the dispute.
2. In case of disagreement with
the Arbitration Council’s decision on the content mentioned in Clause 1 of this
Article, within five working days after receiving the Arbitration Council’s
decision, the involved parties may request the provincial-level court of the
locality where the Arbitration Council has made such decision to review such
decision. The requesting party must notify concurrently the Arbitration Council
thereof.
Such a written request must
contain the following principal contents:
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b/ The name and address of the
requester;
c/ The request’ contents.
The written requests must be
enclosed with copies of the claim, arbitration agreement and the Arbitration
Council’s decision. Copies must be duly notarized.
Within five working days after
receiving the written requests, the chief judge of the court shall assign one
judge to consider and settle them. Within 10 days after being assigned the
task, the judge must consider and make decision. The court decisions are final
ones.
In cases where the courts decide
that the disputes do not fall under the jurisdiction of the Arbitration Councils,
the disputes have no arbitration agreement or the arbitration agreements are
invalid, the Arbitration Councils shall issue decisions to stop the settlement
of the disputes. Unless otherwise agreed upon, the involved parties may bring
their disputes to court. The statute of limitations for initiating lawsuits at
court shall comply with the provisions in Article 21 of this Ordinance,
excluding the duration between the date when the claimants lodge their claims
at the Arbitration Councils and the date when the courts issue decisions under
the provisions of this Article.
Article
31.- Examination of dossiers and verification of facts
1. After being selected or
appointed, the arbitrators must examine dossiers and verify facts if deeming it
necessary.
2. The Arbitration Councils may
meet the involved parties to hear their opinions. At the request of one party
or all parties involved or on their own initiative, the Arbitration Councils
may inquire into the facts from a third person either in the presence of the
involved parties or after notifying them thereof.
Article
32.- Gathering of evidences
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2. In case of necessity, the
Arbitration Councils may gather evidences by themselves; invite expertise at
the request of one party or all parties involved, and must notify them thereof.
The expertise requestor must pay an advance of the expertise charge; where all
the involved parties invite expertise, they shall all pay an advance of the
expertise charge.
Article
33.- The right to request the application of interim urgent measures
While the Arbitration Councils are
settling disputes, if their rights and legitimate interests are infringed upon
or in danger of being directly infringed upon, the concerned parties may file
their written requests at the provincial-level courts of the localities where
the Arbitration Councils are receiving and handling the disputes to apply one
or a number of the following interim urgent measures:
1. To safely protect evidences
in case they are being destroyed or in danger of being destroyed;
2. To inventory the disputed
properties;
3. To ban the transfer of the
disputed properties
4. To ban any change in the
present conditions of the disputed properties;
5. To inventory and seal up the
properties at their storing places;
6. To blockade bank accounts.
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1. The requesters of the
application of interim urgent measures specified in Article 33 of this
Ordinance must send written requests to the provincial-level courts of the
localities where the Arbitration Councils which are handling the disputes are
based.
2. A written request for the
application of interim urgent measures must be enclosed with copies of the
claim with full contents as prescribed in Article 20 and the arbitration
agreement as prescribed in Article 9 of this Ordinance. These copies must be
duly notarized.
Depending on the requested types
of interim urgent measures, the requesters must supply to the courts concrete
evidences in need of safe protection, evidences that the respondents are
dispersing or hiding properties, which may render the enforcement of arbitral
awards impossible.
3. The requesters of the
application of interim urgent measures must deposit security money amounts
required by the courts, which, however, must not exceed the property obligation
the obligees have to fulfill in order to protect the legitimate interests of
the respondents and prevent any abuse of interim urgent measures by the
requesters. These money amounts shall be deposited at the banks in the places
where the courts which have decided on the application of interim urgent
measures are headquartered.
4. After receiving the written
requests and documents specified in Clauses 1, 2 and 3 of this Article, the
chief judges of the provincial-level courts defined in Clause 1 of this Article
shall assign one judge to consider and settle them. Within five working days
after being assigned such task, the judge must check the accuracy of the
documents prescribed in Clause 2 of this Article, and within the scope of the
claimants’ requests, may decide to apply one or several interim urgent measures
specified in Article 33 of this Ordinance. In case of application of one or
several measures specified in Clauses 2, 3, 4, 5 and 6, Article 33 of this
Ordinance, the properties to which the interim urgent measures are applied must
have a value not exceeding the property obligations that the obligees have to
fulfill.
5. The decisions on the
application of interim urgent measures must be immediately sent to the
Arbitration Councils, the disputing parties and the Procuracies of the same
level.
The decisions on the application
of interim urgent measures shall be executed promptly and in accordance with
the law provisions on execution of civil judgments.
6. Within three working days
after receiving the decisions on the application of interim urgent measures,
the chairmen of the Procuracies of the same level shall be entitled to protest
and the respondents shall be entitled to request the chief judges of the courts
which have issued such decisions to consider and change, cancel or keep such
measures. Within three working days after receiving the protests of the
Procuracies or the requests of the respondents, the chief judges of the courts
must have decisions and issue replies thereon to the Procuracies or the respondents.
Article
35.- Alteration or cancellation of interim urgent measures
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Within three working days after
receiving the written requests for alteration or cancellation of interim urgent
measures, the chief judges of the provincial courts which have decided on the
application of the interim urgent measures shall assign one judge to consider
and decide on the alteration or cancellation of the applied interim urgent
measures. Such decisions must be immediately sent to the Arbitration Councils,
the disputing parties and the Procuracies of the same level.
In case of cancellation of
interim urgent measures, the judge must consider and decide to allow the
requesters of the application of such measures to receive back the security
money specified in Clause 3, Article 34 of this Ordinance, except for the case
specified in Article 36 of this Ordinance.
Article
36.- Responsibilities of the requesters of the application of interim
urgent measures
The requesters of the
application of interim urgent measures shall bear responsibility for their
requests.
In cases where the requesters of
the application of interim urgent measures are wrong and cause damage to the
other party or a third party, they must pay compensations therefor.
Article
37.- Conciliation
1. During the process of
arbitral proceedings, the involved parties may conciliate on their own. In case
of successful conciliation, the Arbitration Councils shall, at the involved
parties’ requests, stop the proceedings.
2. The involved parties may
request the Arbitration Councils to act as conciliator. In case of successful conciliation,
the involved parties may request the Arbitration Councils to make records on
and issue decisions recognizing the successful conciliation. The successful
conciliation records must be signed by the involved parties as well as
arbitrators. The Arbitration Councils’ decisions recognizing the successful
conciliation shall be final ones and implemented under the provisions of
Article 57 of this Ordinance.
Article
38.- Meetings to settle disputes
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2. Summons shall be sent to the
involved parties to attend a dispute-settling meeting no later than 30 days
before the opening date of the meeting, unless otherwise agreed upon by the
involved parties.
3. Dispute-settling meetings
shall not be conducted publicly. If it is so consented by the involved parties,
the Arbitration Councils may permit other persons to attend the meetings.
Article
39.- Attendance of dispute-settling meetings
The involved parties may
directly attend or authorize their representatives to attend dispute-settling
meetings. They may invite witnesses and lawyers to protect their rights and
legitimate interests.
Article
40.- Absence of the involved parties
1. If the claimants, though
having been summoned to attend dispute-settling meetings, fail to attend the
meetings without plausible reasons or leave the meetings without the
Arbitration Councils’ consent, they shall be deemed as having withdrawn their
claims. In this case, the Arbitration Councils shall continue settling the
disputes if the respondents so request or lodge counter-claims under the
provisions of Article 29 of this Ordinance.
If the respondents, though
having been summoned to attend dispute-settling meetings, fail to attend the
meetings without plausible reasons or leave the meetings without the
Arbitration Councils’ consent, the Arbitration Councils shall continue settling
the disputes on the basis of available documents and evidences.
2. The Arbitration Councils may
base themselves on the dossiers to settle disputes without the presence of the
involved parties if it is so requested by the involved parties.
Article
41.- Postponement of dispute-settling meetings
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2. The Arbitration Councils must
postpone the dispute-settling meetings if they deem that there are not enough
grounds for settling disputes.
Article
42.- Principles for issuing arbitral awards
The Arbitration Councils’
arbitral awards shall be made on the majority principle, except where disputes
are settled by the sole arbitrator. The minority opinions shall be recorded in
the meetings’ minutes.
Article
43.- Minutes of dispute-settling meetings
1. The minutes of
dispute-settling meetings shall be made by the Arbitration Councils and signed
by their chairmen.
2. The involved parties may see
the minutes’ contents, ask for amendments and/or supplements thereto. If the
Arbitration Councils reject the requests for amendments and/or supplements,
they must record such in the minutes.
Article
44.- Arbitral awards
1. An arbitral award must
contain the following principal contents:
a/ The date and place of
issuance of the arbitral award; for disputes settled by the Arbitration
Centers, the arbitral awards must contain the names of the Arbitration Centers;
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c/ The full names of arbitrators
or the sole arbitrator;
d/ Summary of the claim and
disputed issues;
e/ Bases for issuing the
arbitral award;
f/ Decision on the dispute;
decision on the arbitration charge and other expenses;
g/ The time limit for
enforcement of the arbitral award;
h/ Signatures of the arbitrators
or the sole arbitrator.
2. In cases where an arbitrator
refuses to sign the arbitral award, the chairman of the Arbitration Council
must record such in the arbitral award, clearly stating the reason therefor.
3. The involved parties may
request the Arbitration Councils not to include the disputed matters, bases of
decisions on the disputes into the arbitral awards.
4. The arbitral awards come into
force as from the date of their announcement.
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1. The arbitral awards may be
announced right at the final meetings or afterwards but no later than 60 days
after the end of the final meeting. The full texts of the arbitral awards must be
sent to the involved parties right after the date of their announcement.
2. At the involved parties’
requests, the Arbitration Centers or Arbitration Councils set up by the
involved parties shall issue to the requesting parties copies of the arbitral
awards.
Article
46.- Correction of arbitral awards
1. Within 15 days after
receiving the arbitral awards, any involved party may request the Arbitration
Council to correct computing, typing, printing or other technical errors.
Within 30 days after receiving such request, the Arbitration Council shall
correct errors and notify the other party thereof.
2. Correction decisions shall
constitute part of the arbitral awards and must be signed by the Arbitration
Councils.
Article
47.- Stoppage of dispute settlement
The Arbitration Councils shall
stop the dispute settlement in the following cases:
1. The claimants withdraw their
claims or are deemed as having withdrawn their claims under the provisions of
Clause 1, Article 40 of this Ordinance, unless the respondents request the
Arbitration Councils to continue settling the disputes;
2. The involved parties agree
upon the termination of the dispute settlement.
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1. For disputes the settlement
of which is organized by the Arbitration Centers, arbitration dossiers,
arbitral awards and/or conciliation written records shall be archived at the
Arbitration Centers
2. For disputes settled at the
Arbitration Councils set up by the involved parties, within 15 days after the
arbitral awards or conciliation records are announced, the Arbitration Councils
must send the arbitral awards or conciliation records together with the dispute
settlement dossiers to the provincial-level courts of the localities where they
have issued the arbitral awards or made the conciliation records, for archival.
Article
49.- Settlement of disputes involving foreign elements by arbitration
1. Under the agreement of the
involved parties, the disputes involving foreign elements may be settled at the
Arbitration Councils organized by the Arbitration Centers or at the Arbitration
Councils set up by the involved parties under the provisions of this Ordinance.
2. The Arbitration Councils
organized by the Arbitration Centers or set up by the involved parties may
apply other proceeding rules, if it is so agreed upon by the involved parties.
3. Arbitrators selected by the
involved parties or appointed by courts may be those on or not on the lists of
arbitrators of Vietnam’s Arbitration Centers or foreign arbitrators according
to their countries’ law provisions on arbitration.
4. Where one party or all
parties involved request foreign courts to appoint arbitrators, the courts
competent to appoint arbitrators shall be those determined under the law
provisions of such foreign countries.
5. The involved parties may
agree on selecting laws under the provisions of Clause 2, Article 7 of this
Ordinance and/or international commercial practices for settling their
disputes.
6. The involved parties may
agree on the places for settling their disputes, either in Vietnam or in a
foreign country; if they fail to reach such agreement, the Arbitration Councils
shall decide on such places but must ensure convenience for the involved
parties in the settlement.
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Chapter VI
CANCELLATION OF ARBITRAL
AWARDS, ENFORCEMENT OF ARBITRAL AWARDS
Article
50.- The right to request the cancellation of arbitral awards
Within 30 days after receiving
an arbitral award, if any party disagrees with such award, it may lodge a
written request at the provincial-level court of the locality where the
Arbitration Council issues such award, for cancellation thereof.
Where due to a force majeure event,
such a written request is filed late, the duration when the force majeure event
occurs shall not be included in the time limit for requesting the cancellation
of arbitral awards.
Article
51.- Written requests for the cancellation of arbitral awards
1. A written request for the
cancellation of an arbitral award must contain the following principal
contents:
a/ The date on which the written
request is made;
b/ The name and address of the requester
of the cancellation of the arbitral award;
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2. A written request must be
enclosed with the following papers:
a/ The original or a duly
notarized copy of the arbitral award;
b/ The original or a duly
notarized copy of the arbitration agreement.
3. If papers enclosed with the
written requests are in foreign languages, they must be translated into
Vietnamese and their Vietnamese translations be duly notarized.
Article
52.- Handling of dossiers
1. After receiving the full
papers specified in Article 51 of this Ordinance, the courts shall immediately
notify the requesters to pay a fee.
The courts shall handle the
dossiers as from the date the requesters pay the fee.
2. The courts may request the
request filers to further explain matters still unclear in their written
requests for the cancellation of the arbitral awards.
Article
53.- Courts considering written requests for the cancellation of arbitral
awards
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2. Within 30 days from the date
of handling the dossiers, the chief judges of the courts shall appoint a Trial
Council composed of three judges, one of whom shall act as chief judge, and
must open court sessions to consider the written requests for the cancellation
of the arbitral awards.
The courts must transfer the dossiers
to the Procuracies of the same level within seven working days before opening
court sessions.
3. A court session shall be held
in the presence of the involved parties and their lawyers (if any), and
prosecutors of the Procuracies of the same level. If any of the parties asks
the court to consider the request in his/her absentia, or, though having been
summoned properly, is absent without plausible reasons or leaves the court
session without the Trial Council’s consent, the Trial Council shall still continue
considering the written request for the cancellation of the arbitral award.
4. While considering the written
requests, the Trial Councils shall not review the disputes’ contents but only
check the papers under the provisions of Article 51 of this Ordinance, compare
the arbitral awards with the provisions of Article 54 of this Ordinance in
order to make decisions.
5. After examining the written
requests and enclosed papers, evidences (if any), hearing the opinions of the
summoned people and the prosecutors, the Trial Councils shall deliberate and
make decision by majority.
The Trial Councils may issue
decisions to cancel or not to cancel the arbitral awards, or stop considering
the written requests, if the requesters for the cancellation of the arbitral
awards withdraw their written requests or are absent without plausible reasons
though having been properly summoned, or leave the court sessions without the
Trial Councils’ consent.
Within 15 days after making
decisions, the courts must send copies of their decisions to the involved
parties, the Arbitration Centers or Arbitration Councils set up by the involved
parties and the Procuracies of the same level.
6. If the Trial Councils cancel
the arbitral awards, unless otherwise agreed upon, the involved parties may
bring their disputes to court for settlement.
7. If the Trial Councils do not
cancel the arbitral awards, such arbitral awards shall be enforced under the
provisions of Article 57 of this Ordinance.
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The courts shall issue decisions
to cancel the arbitral awards if the requesters are able to prove that the
Arbitration Councils have issued such arbitral awards in one of the following
cases:
1. There is no arbitration
agreement;
2. The arbitration agreement is
invalid under the provisions of Article 10 of this Ordinance;
3. The Arbitration Council’s
composition and/or arbitral proceedings fail to comply with the involved
parties’ agreements under the provisions of this Ordinance.
4. The dispute does not fall
under the jurisdiction of the Arbitration Council; if part of the arbitral
award does not fall under the jurisdiction of the Arbitration Council, such
part shall be cancelled;
5. The requester is able to
prove that during the process of settling the dispute an arbitrator(s) has
breached the arbitrators’ obligations specified in Clause 2, Article 13 of this
Ordinance.
6. The arbitral award runs
counter to the public interests of the Socialist Republic of Vietnam.
Article
55.- Appeals and protests against court decisions
1. Within 15 days after the
Courts issue decisions under the provisions of Article 53 of this Ordinance,
the involved parties may lodge their appeals. the Procuracies of the same level
or the Supreme People’s Court may issue protests against such decisions. The
time limit for protests of the Procuracies of the same level and protests of
the Supreme People’s Court is 15 days and 30 days respectively, counting from
the date the Courts issue decisions.
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2. If any party is absent at the
first-instance court session, the time limit for appeals specified in Clause 1
of this Article shall be counted from the date the copy of the decision is
handed to the absentee; if an appeal is made late due to a force majeure event,
the time limit shall be counted from the date such force majeure event no
longer exists.
Within 15 days after receiving
the protest decisions or written appeals and the appeal fee payment from the
appellants, the courts which have issued the decisions must transfer the
dossiers to the Supreme People’s Court.
Article
56.- Consideration of appeals and protests
1. Within 30 days after
receiving the dossiers of appeals or protest decisions, the Supreme People’s
Court must open court sessions to consider and make decision. If it is
necessary to ask the appellants or protestors to explain their appeals’ or
protests’ contents, the time limit for opening such court sessions may be
prolonged but must not exceed 60 days after the date of receipt of the appeal
or protest dossiers.
The Court must transfer dossiers
to the Procuracy of the same level within 7 working days before opening court
sessions.
2. A Council for consideration
of appeals and/or protests shall be composed of three judges, with one of whom
acting as chief judge under the appointment by the Supreme People’s Court.
A court session shall be held in
the presence of the disputing parties, their lawyers (if any), and prosecutors
of the Procuracy of the same level.
If the non-appellant party
requests the Court to try in its absentia ,or is absent though having been
summoned properly, without plausible reasons, or leaves the court session
without the Trial Council’s consent, the Trial Council shall still hold the trial.
After examining the written
appeals and/or protest decisions, enclosed documents and evidences (if any),
and hearing the opinions of the summoned parties and the prosecutors, the Trial
Councils shall deliberate and make decisions by majority.
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The Supreme People’s Court’s
decisions are final ones and have implementation effect.
Article
57.- Enforcement of arbitral awards
1. Past 30 days from the end of
the time limit for enforcement of the arbitral awards, if any party fails to
execute such award voluntarily or requests the cancellation thereof under the
provisions of Article 50 of this Ordinance, the party in favor of whom the
arbitral award is enforced may make a written request to the provincial-level
judgment-executing agency of the locality where the party which is bound to
execute the arbitral award is headquartered, resides or has its property, to
enforce the arbitral award.
2. If one of the parties
requests a court to cancel the arbitral award, the arbitral award shall be
enforced as from the date the court’s decision not to cancel the arbitral award
takes effect.
3. The order, procedures and
time limit for enforcement of arbitral awards shall comply with the law
provisions on execution of civil judgments.
Article
58.- Court fees related to arbitration
Fees for requesting the courts
to appoint arbitrators, apply interim urgent measures, requesting the cancellation
of arbitral awards and appeals against court decisions and other fees shall be
stipulated by the Government.
Chapter VII
STATE MANAGEMENT OVER
ARBITRATION
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1. Promulgating legal documents
on arbitration.
2. Guiding the implementation of
legal documents on arbitration.
3. Granting and withdrawing
establishment licenses and operation registration papers of Arbitration
Centers.
4. Organizing and guiding the
training, fostering and building of a contingent of arbitrators; undertaking
international cooperation in the field of arbitration.
5. Supervising and settling
complaints, denunciations, and handling violations of the arbitration
legislation.
Article
60.- State management bodies in charge of arbitration
1. The Government shall perform
the unified State management over arbitration.
2. The Ministry of Justice shall
be responsible to the Government for performing the State management over
arbitration.
3. The Ministry of Justice shall
coordinate with Vietnam Lawyers’ Association in performing the State management
over arbitration.
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IMPLEMENTATION PROVISIONS
Article
61.- Application of the Ordinance to arbitration organizations set up
before the effective date of this Ordinance
1. The Arbitration Centers set
up before the effective date of this Ordinance are not required to carry out
re-establishment procedures. They must amend and supplement their charters and
arbitral proceeding rules to make them compliant with this Ordinance within 12
months from the effective date of this Ordinance. Past this time limit, if
failing to amend and supplement their charters and arbitral proceeding rules,
they must terminate their operation.
2. The arbitration agreements
signed before the effective date of this Ordinance shall comply with the law
provisions effective at the time they are signed.
3. Arbitral awards of the
Arbitration Centers set up and operating under the Government’s Decree No.
116/CP of September 5, 1994, arbitral awards of Vietnam International
Arbitration Center set up and operating under the Prime Minister’s Decision No.
204/TTg of April 28, 1993 and Decision No. 114/TTg of February 16, 1996, if not
yet enforced, shall be enforced under the provisions of Articles 6 and 57 of
this Ordinance.
Article
62.- Implementation effect
1. This Ordinance shall take
effect as from July 1, 2003.
2. The following legal documents
are no longer effective as from July 1, 2003:
a/ The Government’s Decree No.
116/CP of September 5, 1994 on organization and operation of Economic
Arbitration;
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c/ The Prime Minister’s Decision
No. 114/TTg of February 16, 1996 on expanding Vietnam International Arbitration
Center’s scope of jurisdiction to settle disputes.
Article
63.- Implementation provision
The Government, the Supreme
People’s Court and the Supreme People’s Procuracy shall, within the scope of
their respective tasks and powers, detail and guide the implementation of this
Ordinance.
ON
BEHALF OF THE NATIONAL ASSEMBLY STANDING COMMITTEE
CHAIRMAN
Nguyen Van An