Nowadays, a lot of disputes appear in social relations. The law always gives priority to encouraging negotiation between parties. However, many reasons may result in cases where the two parties cannot negotiate but need to seek arbitration to resolve. There are domestic disputes and no foreign elements, but there are also disputes with foreign elements because many countries invest in Vietnam due to the growing economy. In this article; LSX legal firm will give you an insight into: “Can you use foreign law to settle arbitration disputes in Vietnam?”
Legal ground
- Law on Commercial Arbitration 2010
Identification of courts which have competence over arbitral activities
In case the parties have agreed to select a specific court, the competent court is the selected court.
In case the parties have no agreement to select a court, the court’s competence determined as follows:
- Firstly, for the designation of arbitrators to form an ad hoc arbitration council; the competent court is the court in the place in which the defendant resides if the defendant is an individual or the place in which the defendant has its head office if the defendant is an institution. If there are many defendants; the competent court is the court in the place in which one of these defendants resides or has its head office.
- If the defendant resides or has its head office in a foreign country; the competent court is the court in the place in which the plaintiff resides or has its head office;
- Secondly, for the change of an arbitrator of an ad hoc arbitration council; the competent court is the court in the place in which the arbitration council settles the dispute:
- Thirdly, for a request to settle a complaint about the arbitration council’s decision that the arbitration agreement was invalid or unrealizable or about the arbitration council’s jurisdiction; the competent court is the court in the place in which the arbitration council issued such a decision;
- Fourthly, for a request for the court to collect evidence; the competent court is the court in the place in which exists evidence to be collected;
- Fifthly, for a request for the court to apply interim urgent measures, the competent court is the court in the place in which such measures need to be applied;
- Sixthly, for summoning a witness, the competent court is the court in the place in which the witness resides;
- Lastly, for a request to cancel an arbitral award or register an ad hoc arbitral award; the competent court is the court in the place in which the arbitration council pronounced such arbitral award.
Courts with competence over arbitral activities specified in Clauses 1 and 2 of Article 7 of the Law on Commercial Arbitration are people’s courts of provinces or centrally run cities.
Sending of notices and order of sending notices
According to Article 12 of the Law on Commercial Arbitration 2010:
Unless otherwise agreed by the parties or provided by the arbitration center’s rules of proceedings, the mode and order of sending notices in arbitral proceedings arc specified as follows:
- Each party’s written explanations, correspondence papers, and other documents shall be sent to the arbitration center or arbitration council in sufficient copies so that every member of the arbitration council and the other party has one copy, and one copy is preserved at the arbitration center;
- Notices and documents to be sent by the arbitration center or arbitration council to the parties shall be sent to the addresses or to their representatives at the correct addresses notified by the parties;
- The notices and documents may be sent by the arbitration center or arbitration council directly, in registered or ordinary mails, by fax. telex, telegram, email, or other modes which acknowledge such sending;
- Notices and documents sent by the arbitration center or arbitration council will be regarded as having been received on the date the parties or their representatives receive them or if such notices and documents have been sent under Clause 2 of this Article:
- The time limit for receiving notices and documents shall be counted from the date following the date such notices and documents are regarded as having been received. If the following date falls on a holiday or day off under regulations of the country or territory in which the notices and documents have been received. this time limit shall be counted from the subsequent first working day. If the last day of this time limit falls on a holiday or day off under regulations of such country or territory, the time of expiration is the end of the subsequent first working day.
Can you use foreign law to settle arbitration disputes in Vietnam?
Applicable laws for dispute settlement under Vietnamese legislation:
- For a dispute involving no foreign element, the arbitration council shall apply Vietnamese law for settling the dispute.
- For a dispute involving foreign elements, the arbitration council shall apply the law selected by the parties. If the parties have no agreement on the applicable law, the arbitration council shall decide to apply a law it sees the most appropriate.
- When the Vietnamese law or law selected by the parties contains no specific provisions concerning the dispute, the arbitration council may apply international practices for settling the dispute, provided such application or consequence of such application does not contravene the fundamental principles of Vietnamese law.
Legal service of LSX Legal Firm
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Related questions
Firstly, disputes arise in the domains falling beyond the arbitration’s jurisdiction defined in Article 2 of this Law.
Secondly, the arbitration agreement maker has no competence defined by law.
Thirdly, the arbitration agreement maker has no civil act capacity under the Civil Code.
Fourthly, the form of the arbitration agreement is incompliant with Article 16 of the Law on Commercial Arbitration.
Fifthly, a party deceived, intimidated, or compelled in the course of making the arbitration agreement and requests a declaration that such arbitration agreement not valid.
Lastly, the arbitration agreement breaches prohibitions specified by law.
Any modification, extension, cancellation, invalidation or nonperformance of the contract will not invalidate the arbitration agreement.
Firstly, accept or refuse to settle disputes.
Secondly, independent in dispute settlement.
Thirdly, refuse to provide dispute-related information.
Fourthly, enjoy remuneration.
Fifthly, keep secret the circumstances of disputes they settle, unless they have to provide information to competent state agencies under law.
Also, ensure impartial, fast, and prompt settlement of disputes.
Lastly, adhere to the rules of professional ethics.
Contact LSX
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