Vietnam - Baker and McKenzie International Arbitration Yearbook 2014-2015
Originally from Baker and McKenzie International Arbitration Yearbook 2014-2015
A. LEGISLATION, TRENDS AND TENDENCIES
In Vietnam, both domestic and international arbitration proceedings are governed by the Law on Commercial Arbitration (“LCA”).3 The recognition and enforcement of foreign arbitral awards remains subject to the relevant provisions of the Civil Procedure Code (“CPC”).4
On March 20, 2014, the Supreme People’s Court provided guidance for the implementation of several articles of the LCA in its Resolution No. 01/2014/NQ-HDTP (the “Resolution”). In particular, the Resolution specifies: (i) under what circumstances jurisdiction over a dispute lies with a court rather than an arbitration tribunal; (ii) when the terms of an arbitration agreement render it invalid or incapable of being performed under Vietnamese law; and (iii) under what circumstances a waiver of the right to challenge a breach of an arbitration agreement or Vietnamese arbitration laws will be enforceable. The Resolution clarifies that an arbitration agreement is “incapable of being performed” if, among other reasons, it: (i) stipulates the use of arbitration rules from a different center than the one that will hear the arbitration; and (ii) the charter of the center hearing the arbitration does not permit using the arbitration rules of other arbitration centers; and (iii) the parties to the dispute do not agree to use the arbitration rules of the center hearing their dispute.5 Under the Resolution, the Supreme People’s Court seems to have given for the first time some limited guidance on what constitute fundamental principles of Vietnamese law. Specifically, the Resolution provides that an arbitral award is deemed contrary to fundamental principles of Vietnamese law where it breaches a fundamental principle of conduct that applies broadly to the drafting and implementing of Vietnamese law.6 The Resolution also refers to certain principles contained in the Civil Code, the Commercial Law and the LCA, such as the principles of freedom of contract and arbitrator impartiality, as examples of fundamental principles of Vietnamese law.