Dispute Settlemts - Arbitration

COMMERCIAL DISPUTE
SETTLEMENTS
- Arbitration
LLM. Bui Doan Danh Thao

Aims
• What is commercial arbitration?
1
• How many forms of commercial arbitration are
2 there?
• Why should you choose/not choose commercial
3 arbitration?
• When will your dispute be settled by commercial
arbitration according to the law on commercial
4
arbitration 2010?
• How will your dispute be settled by commercial
5
arbitration 2010?
• How will a commercial arbitration award be
6 enforced?
What is commercial arbitration?
What is commercial arbitration?
Commercial arbitration is a flexible

adjudicative method of commercial dispute
settlement agreed by involved parties, in
which a neutral third party will judge and
apply facts and law to arrive at a decision
binding to the parties.
Features of commercial arbitration
Arbitration Litigation
An Adjudicative method performed by a neutral
Nature
third party
Principles to
Apply facts and law
reach an award
Binding on disputants
Awards Can be
Final
appealed
Based on the
Jurisdiction Agreements between disputants
law
Can choose rules, language, time Comply with
Procedures
and place to settle disputes law
Principles of
Confidential Public
adjudication
Aims
1
2 there?
3 arbitration?
4
arbitration 2010?
5
arbitration 2010?
6 enforced?
How many forms of commercial
arbitration are there?
Ad hoc Arbitration
Arbitration Committee
• Centre
• Individuals
• Institution
• Association
Ex: Arbitration committee
What are the differences between Ad-hoc
and committee arbitration?
Ad-hoc arbitration Arbitration committies
Established for a specific Organisations permitted to

case establish by authorities
Does not have a permanent Has a permanent transational

transactional office and office and simple
organisational structure organisational structure
No rules Has their own rules
Free to choose arbitrators Must choose arbitrators from

the list
Aims
1
2 there?
3 arbitration?
4
arbitration 2010?
5
arbitration 2010?
6 enforced?
Why should you choose/not choose
commercial arbitration?
Advantages Disadvantages
Flexible proceedings No enforcement body
Confidential process
Can choose any arbitration
around the world
Can choose the best arbitrators
Discover evidence
Awards are final
Maintain business relationship

between parties
Aims
1
2 there?
3 arbitration?
4
arbitration 2010?
5
arbitration 2010?
6 enforced?
When will your dispute be settled by
Valid arbitration agreements

When will an arbitration agreement be
valid? (Article 18 of the law on commercial arbitration 2010)
Form • Comply with the law
Subject • Have capacity to enter into the agreement
Will • Willingly enter into the agreement
• Not in violation of prohibitory provisions of

Contents law
Scope of • Fall within arbitration’s competence

disputes
Form of arbitration agreements
A clause in a contract OR A separate agreement
In writing
either before or after
disputes arise
Ex: An arbitration clause in a contract
Ex: A separate agreement
How to draft an effective arbitration
agreement
Ad hoc arbitration
or Arbitration
committee
Place of Number of
arbitration arbitrators
Language of Rules of
arbitration Arbitration
A sample arbitration committee
agreement by VIAC
“Any dispute arising out of or in relation with this contract
shall be resolved by arbitration at the Vietnam International
Arbitration Centre (VIAC) in accordance with its Rules of
Arbitration”.
a) the number of arbitrators shall be [one or three].
b) the place of arbitration shall be [city and/or country].
c) the governing law of the contract [is/shall be] the
substantive law of [ ].
d) the language to be used in the arbitral proceedings shall be
[ ].
A sample ad hoc arbitration agreement
“Any dispute, controversy or claim arising out of or relating

to this contract, or the breach, termination or invalidity
thereof, shall be settled by arbitration in accordance with
[Arbitration Rules].”
a) The appointing authority shall be… (name of institution or
person);
b) The number of arbitrators shall be… (one or three);
c) The place of arbitration shall be… (town and country);
d) The language to be used in the arbitral proceedings shall
be…

Contents law

disputes
Which disputes can commercial arbitration
settle? (Article 2 of the law on commercial arbitration 2010)
Competence
Commercial disputes
Disputes in which at least one party

is involved in commercial activities
Other disputes provided by law


Contents law

disputes
Will the validity of an arbitration agreement
be affected in the case of invalid contracts?
Arbitration agreements are still independently

valid in the case of invalid contracts.
Can the dispute be taken to court if arbitration
has jurisdiction to settle the dispute?
can not be taken to court except in the case of

a dispute between a goods or service provider
and consumers
Aims
1
2 there?
3 arbitration?
4
arbitration 2010?
5
arbitration 2010?
6 enforced?
Principles of dispute settlement by
arbitration (Article 4, the law on commercial arbitration 2010)
The parties’
agreement must be
respected
Arbitrators must be
Arbitral awards are independent, objective,
final impartial and will
observe law
Dispute settlement will

Disputing parties are
be conducted in private
equal in their rights
unless otherwise agreed
and obligations
by the parties
How will the disputes be settled by
According to the Law on commercial arbitration 2010, a dispute will
settled by a commercial arbitration through the following steps:
The defendant
The plaintiff submits
submit Establish an
a petition and arbitration tribunal
its self-defence
enclosed documents
statement
Arbitration Reach an
Conciliation
hearing arbitration award
What should be included in a petition?
(Article 30.2, the law on commercial arbitration 2010)
1. Date of its making;
2. Names and addresses of the parties; names and addresses of

witnesses, if any;
3. Summary of the circumstances of the dispute;
4. Grounds and evidence for initiating the lawsuit, if any;
5. Specific requirements of the plaintiff and the value of the

dispute;
6. Name and address of the person whom the plaintiff selects as

arbitrator or requests to be designated as arbitrator.
What should be enclosed with a petition?
An original arbitration Original or a copy of

agreement related documents
Who will a petition be submitted to?
Arbitration Arbitration Ad hoc

form committee arbitration
Who should Arbitration

The defendant
submit to committee
When can a plaintiff submit a petition to
arbitration ? (Article 33, the law on commercial arbitration 2010)
Within 2 years from from the time of

infringement of lawful rights and
interests
Can a submitted petition be withdrawn, modified
or supplemented? (Article 37, the law on commercial arbitration 2010)
A submitted petition can be:

- Withdrawn before the arbitration tribunal make an
award, and
- Modified or supplemented before the final arbitration
hearing finishes
How will the dispute be settled by commercial
arbitration?
According to the Law on commercial arbitration 2010, a dispute will be
The defendants
submit Establish an
its self-defence
enclosed documents
statement
Conciliation
When must defendants send their self-
defence statement? (Article 35, the law on commercial arbitration 2010)
Within 30 days after receiving a petition and enclosed documents

unless otherwise agreed by the parties or provided by the
arbitration rule
What will be included in a self defence
statement? (Article 35, the law on commercial arbitration 2010)
1. Date of making
2. Name and address of the defendant
3. Grounds and evidence (if any) for self-defence
4. Name and address of the person whom the defendant

selects as arbitrator or requests to be designated as
arbitrator
Who will a self-defence statement be
submitted to? (Article 35, the law on commercial arbitration 2010)
Arbitration Arbitration Ad hoc

form committee arbitration
Who should Arbitration The plaintiff and the

submit to committee selected arbitrator
Can the defendant counter-claim?
(Article 36, the law on commercial arbitration 2010)
The defendant can counter-claim the plaintiff on matters related

to their dispute
Note: the counter-claim must be submitted with a self-defence statement

According to the Law on commercial arbitration 2010, a dispute will be
The defendant
submit Establish an
its self-defence
enclosed documents
statement
Conciliation
Who can establish an arbitration tribunal?
(Article 40 and 41, the law on commercial arbitration 2010)
Arbitration committee Ad hoc arbitration
- The parties - The parties
or or
Who establish
an arbitration - The chairman of the - The competent
tribunal arbitration committee court if no
if no agreement is made agreement is made
between the parties between the parties
How many arbitrators are there in an arbitration tribunal? (Article
39, the law on commercial arbitration 2010)
The parties will agree on the number of arbitrators in an arbitration

tribunal
No agreement between the parties: the number will be three arbitrators

Who can be arbitrators?
Individuals who meet all the following requirements can be an arbitrator:
Having full civil act capacity
Having a university bachelor's degree and at least 5 years

experience in the trained discipline; or being an expert who has
high professional qualifications and much practical experience
Not working as a judge, procurator, investigator,

enforcement officer or civil servant at a peoples court,
procuracy, investigative or judgement enforcement agencies
Not being an accused, defendant, or person who is serving

criminal sentences or having their criminal record not yet
remitted
What can the arbitration tribunal do to
settle disputes?
Verify matters of the dispute
Collect evidence related to the dispute
Summon witnesses
Apply interim urgent measures

arbitration?
The defendant
submit Establish an
its self-defence
enclosed documents
statement
Conciliation
When will conciliation be conducted?
When the parties request

What will happen if the conciliation is
successful? (Article 58, the law on commercial arbitration 2010)
The arbitration tribunal will issue a decision to

recognise the agreement made by the parties
 Final and as valid as an arbitral award

arbitration?
The defendant
submit Establish an
its self-defence
enclosed documents
statement
Conciliation
Where and when will an arbitration
hearing be opened?
Place and time to open an arbitration hearing will be decided by

the parties or the arbitration tribunal if no agreement between
the parties
Which languages can be used in
arbitration hearings (Article 10, the law on commercial arbitration 2010)
Disputes Language to settle disputes
Not involved in foreign elements Vietnamese
Language chosen by the parties

Involved in foreign elements or
or by the arbitration tribunal if
having at least one party who is a
no agreement exists between
foreign-invested enterprise
parties
Can a party be absent in the arbitration
hearing? (Article 56, the law on commercial arbitration 2010)
The plaintiff The defendant

Absent or leaving the hearing Absent or leaving the hearing
without permission from the without permission from the
tribunal tribunal
Withdraw the petition

 The hearing will proceed if the defendant The hearing will proceed
requests or has a counter claim
Can the arbitration tribunal settle a
dispute without presence of the parties?
The arbitration tribunal can settle a dispute without presence of the

parties if requested by the parties
In which case will the dispute settlement
be terminated? (Article 59, the law on commercial arbitration 2010)
The disputers die or cease to exist without passing over
their rights and obligations to others
The plaintiff withdraws or is regarded as having
withdrawn their petition unless otherwise requested by
the defendant
The parties agree to terminate
The disputes do not fall in jurisdiction of the arbitration

based upon the court’s decision
No, invalid or unrealisable arbitration agreements based

upon the court’s decision
The defendant
submit Establish an
its self-defence
enclosed documents
statement
Conciliation
Principles of applicable laws to settle
disputes (Article 14, the law on commercial arbitration 2010)
Disputes Applicable law
Not involved in foreign elements Vietnamese law
- The law selected by the parties

Or
Involved in foreign elements - The most appropriate law if no
agreement exists between
parties
Not regulated by specific rules International practices/customs

Principles of issuance of awards
An arbitral award will be issued base on majority vote or the opinion of

the chairman of the arbitration tribunal if the majority vote can not
be obtained
Can arbitral awards be modified or
amended? (Article 63, the law on commercial arbitration 2010)
Arbitral awards can be modified or amended in the following cases:
1. Having spelling mistakes

2. Having incorrectly calculated data
Can arbitral awards be cancelled by the
court? (Article 68, the law on commercial arbitration 2010)
Arbitral awards can be cancelled by the court based upon a
request of one party in the following cases:
No arbitration Composition of the

agreement arbitration tribunal or The dispute does not
the procedure is fall in jurisdiction of
Or
incompliant with the the arbitration
An invalid arbitration parties’ agreement or tribunal
agreement the law
The awards are

Evidence which the
Arbitrators are not contrary to the
tribunal considers to
objective and fundamental
reach the award is
impartial principles of
counterfeit
Vietnamese law
Aims
1
2 there?
3 arbitration?
4
arbitration 2010?
5
arbitration 2010?
6 enforced?
How will a commercial arbitration award be
enforced? (Article 65 and 66, the law on commercial arbitration 2010)
Arbitral awards will be performed willingly by

the parties
What will happen if one party doesn’t
comply with the award?
The party in whose favour the arbitral award is rendered can

request the competent civil judgement
enforcement/execution agency to enforce the award
Summary: Commercial arbitration
Arbitrators, the process,

Disputes will be settled by language, time and place
adjudication of a neutral will be decided by the
third parties disputers
A dispute
settlement method
The award will bind on the

disputers and be performed Arbitral awards will be
willingly or be enforced by made based upon law
a state power agency if non
compliance
THE END

Dispute Settlemts - Arbitration

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Dispute Settlemts - Arbitration

Uploaded by

Copyright:

Available Formats

COMMERCIAL DISPUTE

LLM. Bui Doan Danh Thao

Commercial arbitration is a flexible

Established for a specific Organisations permitted to

Does not have a permanent Has a permanent transational

No rules Has their own rules

Free to choose arbitrators Must choose arbitrators from

Awards are final

Maintain business relationship

Valid arbitration agreements

Subject • Have capacity to enter into the agreement

Will • Willingly enter into the agreement

• Not in violation of prohibitory provisions of

Scope of • Fall within arbitration’s competence

A clause in a contract OR A separate agreement

“Any dispute, controversy or claim arising out of or relating

Subject • Have capacity to enter into the agreement

Will • Willingly enter into the agreement

• Not in violation of prohibitory provisions of

Scope of • Fall within arbitration’s competence

Disputes in which at least one party

Other disputes provided by law

Subject • Have capacity to enter into the agreement

Will • Willingly enter into the agreement

• Not in violation of prohibitory provisions of

Scope of • Fall within arbitration’s competence

Arbitration agreements are still independently

can not be taken to court except in the case of

Dispute settlement will

1. Date of its making;

2. Names and addresses of the parties; names and addresses of

3. Summary of the circumstances of the dispute;

4. Grounds and evidence for initiating the lawsuit, if any;

5. Specific requirements of the plaintiff and the value of the

6. Name and address of the person whom the plaintiff selects as

An original arbitration Original or a copy of

Arbitration Arbitration Ad hoc

Who should Arbitration

Within 2 years from from the time of

A submitted petition can be:

Within 30 days after receiving a petition and enclosed documents

2. Name and address of the defendant

3. Grounds and evidence (if any) for self-defence

4. Name and address of the person whom the defendant

Arbitration Arbitration Ad hoc

Who should Arbitration The plaintiff and the

The defendant can counter-claim the plaintiff on matters related

Note: the counter-claim must be submitted with a self-defence statement

Arbitration committee Ad hoc arbitration

- The parties - The parties

The parties will agree on the number of arbitrators in an arbitration

No agreement between the parties: the number will be three arbitrators

Individuals who meet all the following requirements can be an arbitrator:

Having full civil act capacity

Having a university bachelor's degree and at least 5 years

Not working as a judge, procurator, investigator,

Not being an accused, defendant, or person who is serving

Verify matters of the dispute

Collect evidence related to the dispute

Apply interim urgent measures

When the parties request

The arbitration tribunal will issue a decision to

 Final and as valid as an arbitral award