Baker McKenzie International Arbitration Yearbook 2023-2024 – Vietnam

A.         LEGISLATION AND RULES

A.1       Legislation

Arbitration procedures in Vietnam continue to be governed mainly by Civil Procedure Code No. 92/2015/QH13 (CPC), Law on Commercial Arbitration No. 54/2010/QH12 (LCA) and Resolution No. 01/2014/NQ-HDTP issued by the Supreme Court of Vietnam, which provides further guidance on the implementation of certain provisions of the LCA.

The LCA is generally based on the UNCITRAL Model Law. However, there are some provisions that differ from the model law. These include the principles in settling disputes, state administration of arbitration, required registration of ad hoc arbitration awards with national courts, minimum qualifications of arbitrators, the right to settle and the right to request mediation by an arbitral tribunal, and setting aside an arbitral award for violating fundamental principles of Vietnamese law.

Compared with Ordinance No. 08/2003/PL-UBTVQH11 on Commercial Arbitration, which ceased to have effect as of 1 January 2011, the LCA includes many notable developments, such as the following:

• The ability to refer to arbitration even if only one of the parties is engaged in commercial activities
• The option to appoint foreign arbitrators in Vietnam
• The ability to apply for interim measures to protect the legitimate interests of the parties

Moreover, the CPC (Part 7), which came into effect on 1 July 2016, provides certain amendments regarding procedures for the recognition and enforcement of foreign arbitral awards. The amendments have been praised for being more effective and in line with the New York Convention.

In 2023, the Vietnam Lawyers Association (VLA) made a proposal for the development of a draft law on supplementations and amendments to the LCA (“Proposal“). The Proposal, as released for public comment in October 2023, contains the following key proposed supplementations and amendments to the LCA:

• Expansion of the scope of arbitrable disputes: The Proposal suggests that disputes in all fields may be referred to arbitration, as long as the laws of such fields do not prohibit or restrict dispute resolution by arbitration.  
• New circumstances in which a party may lose the right to object: Under the current LCA, a party may lose the right to object to a violation of the LCA or the arbitration agreement if it fails to raise its objection during the arbitration proceeding. The Proposal adds that a party may lose the right to object if it chooses not to take part in the arbitration proceeding.
• Amendment of the statute of limitations for commencing an arbitration: The Proposal suggests that the provision on statute of limitations under the current LCA (i.e., two years) should either be removed or replaced with a reference to substantive laws (e.g., reference to the statute of limitations being three years as stipulated under the Civil Code).
• New mechanism for emergency arbitration: This is not available under the current LCA.
• New provisions on the arbitrators’ limitation/exemption from liability for damages in deciding on temporary emergency measures: This pertains to injunctive relief.
• Amendments to the list of grounds for setting aside arbitral awards: The Proposal suggests the following, among other things:
  1. Serious violations of arbitration proceedings may lead to setting aside an award, as opposed to the broader grounds under Article 68.2.b of the current LCA, which stipulates that an arbitral award may be set aside if the composition of the tribunal or the arbitration procedure is not compliant with the parties’ agreement or the LCA
  2. The fact that the evidence upon which the tribunal relied to issue the award is counterfeit will no longer be a ground for setting aside arbitral awards
  3. The ground for setting aside arbitral awards under Article 68.2.dd, i.e., that the arbitral award may be set aside if it is contrary to fundamental principles of Vietnamese law, may be amended by adopting the term “public policy” under the UNCITRAL Model Law
• New mechanism to review the court’s decision on setting aside an arbitral award:To reduce the number of arbitral awards being set aside, the Proposal suggests that the courts’ decisions on setting aside an arbitral award be subject to cassation procedure at relevant courts. Alternatively, the Proposal suggests that local courts report to and obtain approval from the Supreme Court before accepting a request for setting aside arbitral awards.
• Change of authorities having jurisdiction to enforce the award: The civil judgment enforcement authorities where the award debtor is located or has assets (instead of the civil judgment enforcement authorities where the arbitral tribunal made the award under the current LCA) will have jurisdiction to enforce arbitral awards.

The VLA proposed that the draft law on supplementations and amendments to the LCA be presented to the National Assembly in May 2024 for review and be adopted by the National Assembly in October 2024. As of the date of this publication, the draft law has not yet been included in the lawmaking agenda for 2024, so it remains to be seen whether the proposed timeline will be approved and implemented.

A.2       Institutions, rules and infrastructure

Under the LCA, arbitration centers may be established in various localities in accordance with government regulations. The LCA sets out the conditions and procedures for the establishment of arbitration centers, their duties and powers, as well as the causes for termination of their operations. The LCA also removed the requirement that an arbitrator be a Vietnamese citizen. As such, foreign citizens can be appointed as arbitrators in Vietnam if they meet all the requirements under Vietnamese law.

Moreover, Vietnamese law allows foreign arbitration centers to operate in Vietnam through a branch or representative office after satisfying the required conditions and undergoing the correct registration procedures. However, the arbitration awards issued by the local representative office or branch of a foreign arbitration center are considered foreign arbitration awards and, thus, have to go through the process of recognition by the competent court before enforcement can be made in Vietnam. Previously, the Korean Commercial Arbitration Board was the first and only foreign arbitral institution to open an office in Vietnam. In November 2022, the Permanent Court of Arbitration opened a representative office in Hanoi, Vietnam.

As of January 2024, there are 43 local arbitration institutions in Vietnam currently registered with the Ministry of Justice, 29 of which have fewer than 10 arbitrators.^[1] The Vietnam International Arbitration Center (VIAC) at the Vietnam Chamber of Commerce and Industry remains the most well-known domestic arbitration institution. This is likely because compared with other domestic arbitration institutions, VIAC has a longer history of development with high-profile arbitrators (including many foreign arbitrators) who have expertise in contract law and can resolve commercial disputes in the English language, making arbitration more accessible for transactions involving a foreign party.

VIAC operates based on the LCA and VIAC’s Rules of Arbitration issued on 1 March 2017. The VIAC Rules of Arbitration 2017 have three significant developments, which are the following:

• Single arbitration for multiple contracts
• Consolidation of claims
• Expedited arbitral procedure, bringing such rules generally in line with international practice

According to VIAC’s latest annual report for 2022,^[2] there was an 8.15% increase in the number of new cases it received (292 cases), compared with 270 cases in 2021. The sale of goods remains the most heavily disputed area (37.5% of VIAC caseload in 2022). Construction and finance – banking have risen to become the second and third most common fields for dispute, respectively, accounting for 17.1% and 10.4% of VIAC caseload in 2022. Entities from China, Singapore, Japan, South Korea and the United States remain the top clients bringing their disputes to VIAC for settlement.

B.         CASES

B.1       Hanoi Court set aside an arbitral award for being contrary to fundamental Vietnamese laws on arbitration

Per Decision No. 12/2023/QD-PQTT dated 4 July 2023,^[3] the People’s Court of Hanoi set aside an award made by the tribunal under VIAC Rules.

In this case, the claimant (a foreign purchaser) sued the respondents (the seller and the guarantor) to exercise the put option in the share purchase transaction. The claimant’s request for arbitration was signed by an authorized representative, who was in turn sub-authorized by a member of the board of directors according to the claimant’s board of directors resolution (“Claimant BOD Resolution“). At the filing date of the request for arbitration, the Claimant BOD Resolution had not yet been legalized. The legalized copy was only submitted to the tribunal in the later stage of the arbitration. The tribunal found in favor of the claimant.

The respondents then filed requests to set aside the arbitral award. Among other arguments, the respondents argued that the fact that VIAC received the request for arbitration and the tribunal handled the case without legalized documents was contrary to law. The respondents also challenged that the Claimant BOD Resolution was forged, as there is evidence showing that all the members of the claimant’s board of directors could not have signed the Claimant BOD Resolution on the same date.

The tribunal, in its award, opined that the legalization requirements are mandatory for court proceedings only, and arbitration laws do not require that documents be legalized. The court disagreed. The court ruled that the CPC sets out the basic principles of Vietnamese laws in legal proceedings, which can supplement arbitration laws. The CPC provides for legalization requirements. Hence, VIAC made serious procedural errors in accepting unlegalized documents at the beginning of the arbitration. The court also ruled that the tribunal did not make an objective assessment upon accepting the jointly signed Claimant BOD Resolution and disregarded the respondents’ request for expert verification of the signatures of the members of the claimant’s board of directors. The court ultimately found that the tribunal acted contrary to the fundamental principles of arbitration under Art.4.2 of the LCA, which states that “arbitrators must be independent, objective, and impartial and shall observe law,” and set aside the award.

B.2       HCMC Court set aside an arbitral award for being contrary to fundamental principles of freedom of contract and equality under Vietnamese law

On 20 June 2023, the People’s Court of Ho Chi Minh City issued Decision No. 982/2023/QD-PQTT to set aside a VIAC award over a dispute arising out of a tender package for interior completion works.^[4]

In this case, the employer terminated the contract and filed a request for arbitration against the contractor, claiming a return of the advance payment and late-payment interest. The tribunal largely upheld the employer’s claims.

The contractor requested that the court set aside the award, arguing that there were several procedural and substantive errors. One of these is that the employer did not try to settle the case via the appointed third-party consultant first, which, according to the contractor, was a mandatory pre-condition for initiating the arbitration.

The court decided that there were indeed disagreements between the parties on the value of works completed by the contractor, and the contract provides that the consultant would be solely responsible for the determination and confirmation of the progress and quality of the contractor’s work. However, the court took the view that the tribunal had relied on the information and documents provided by the employer, which had not been confirmed by the consultant. Thus, the court ruled that the tribunal’s award was contrary to the parties’ contract and violated the principles of freedom of contract and equality between the parties and set aside such an award.

B.3       Refusal of recognition and enforcement of a SIAC award by the People’s High Court in Hanoi due to the exclusive jurisdiction of Vietnamese courts over immovable assets in Vietnam

By Judgment No. 09/2023/HS-PT dated 17 January 2023, the People’s High Court in Hanoi refused the recognition and enforcement of an award from SIAC on the grounds of arbitral procedural errors, wrong application of laws and exclusive jurisdiction of Vietnamese courts over immovable assets in Vietnam.^[5]

This case arises out of a share purchase agreement (SPA) between the claimant (Korean purchasers) and the respondent (a Vietnamese seller) for the purchase of majority shares in a Vietnamese target company. After the deal was completed, the senior managers of the target company were convicted of criminal liability for involvement in a high-profile illegal online gambling ring. The target company itself, as the related party in the criminal case, was also ordered to turn in illicit profits. The purchasers filed an arbitration before SIAC for compensation due to breaches of various representations and warranties, and the SIAC tribunal ruled in favor of the purchasers.

The respondent made various objections to the claimants’ request to enforce the SIAC award. The objections included the following:

• Even though the respondent requested the Supreme Court to open cassation procedures over the relevant judgment over the criminal case, the tribunal failed to adjourn the hearing to wait for a response from the Supreme Court. This failure by the tribunal violated the principle of equality of the parties, as it denied the respondent’s right to present its case and was contrary to fundamental principles of Vietnamese law.
• The tribunal made a procedural error by failing to notify the respondent’s expert of the hearing.
• The claims of misrepresentation are noncontractual claims. The SPA only provides that the laws governing the contract is Singaporean law but did not include noncontractual matters. The tribunal’s application of Singaporean law to resolve noncontractual claims is thus erroneous, and Vietnamese laws must be applicable to such issues.
• The claimant’s use of physical curtains as background is contrary to the hearing protocol.

The People’s Court of Hanoi, at a first instance proceeding, refused to recognize and enforce the SIAC award. The People’s High Court in Hanoi, as the appeal court, affirmed the lower court’s decision and upheld the above objections from the respondent. Notably, the People’s High Court in Hanoi (likely on its own and without arguments raised by the respondent, as no similar arguments from the respondent were recorded in the appeal judgment) ruled that if the SIAC award is recognized, then enforcement would be against both movable and immovable assets in Vietnam. Such enforcement would not be in line with the principle under Article 470 of the CPC that the Vietnamese court has exclusive jurisdiction over disputes relating to immovable assets in Vietnam.

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[1] For a list of arbitration institutions, see: https://bttp.moj.gov.vn/qt/Pages/trong-tai-tm.aspx, last accessed on 10 January 2024.

[2] https://www.viac.vn/images/Resources/Annual-Reports/2022/VIAC_Annual-report-2023_230822.pdf.

[3] https://congbobanan.toaan.gov.vn/2ta1225914t1cvn/chi-tiet-ban-an.

[4] https://congbobanan.toaan.gov.vn/2ta1274671t1cvn/chi-tiet-ban-an.

[5] https://congbobanan.toaan.gov.vn/2ta1176341t1cvn/chi-tiet-ban-an.