Vietnam law has general regulations on arbitration agreements and arbitrator. Let’s find out this issue with Lawyer X through the following situation: “Dear Lawyer! I know in some circumstances, even though in contract there are articles about using arbitration if disputes arise, parties still wonder if the arbitration agreements valid or not. So I want to ask what are Forms of arbitration agreement in Vietnam? What are Consumer right to select dispute settlement modes? What are criteria of arbitrators and arbitration center in Vietnam? Thanks for answering my questions!”
Legal grounds
2010 Vietnam Law on Commercial arbitration
Forms of arbitration agreement
– An arbitration agreement may be made in the form of an arbitral clause in a contract or in the form of a separate agreement.
– An arbitration agreement must be in writing. The following forms of agreement may also be regarded as written form:
+ Agreement made through communication between the parties by telegram, fax, telex, email or other forms provided for by law;
+ Agreement made through exchange of written information between the parties;
+ Agreement recorded in writing by a lawyer, notary public or competent institution at the request of the parties:
+ In their transactions, the parties make reference to a document such as a contract, document, company charter or other similar documents which contains an arbitration agreement;
+ Agreement made through exchange of petitions and self-defense statements which reflect the existence of an agreement proposed by a party and not denied by the other party.
Consumer right to select dispute settlement modes
For disputes between goods or service providers and customers, though an arbitral clause has been included in general conditions on goods and service provision drafted by goods or service providers, consumers may select arbitration or a court to settle these disputes. Goods or service providers may initiate lawsuits at arbitration only if so consented by consumers.
Invalid arbitration agreements
– Disputes arise in the domains falling beyond the arbitration’s jurisdiction defined in Article 2 of this Law.
– The arbitration agreement maker has no competence defined by law.
– The arbitration agreement maker has no civil act capacity under the Civil Code.
– The form of the arbitration agreement is incompliant with Article 16 of this Law.
– A party is deceived, intimidated or compelled in the course of making the arbitration agreement and requests a declaration that such arbitration agreement is invalid.
– The arbitration agreement breaches prohibitions specified by law.
Independence of arbitration agreement
An arbitration agreement is entirely independent from the contract. Any modification, extension, cancellation, invalidation or nonperformance of the contract will not invalidate the arbitration agreement.
What are criteria of arbitrators
– A person who satisfies all the following criteria may act as arbitrator:
+ Having the full civil act capacity under the Civil Code;
+ Possessing a university degree and having at least 5 years* work experience in the trained discipline:
+ In special cases, an expert who has high professional qualifications and much practical experience, though not satisfying the requirement specified at Point b of this Clause, may also be selected as arbitrator.
– Persons who satisfy all the conditions specified in Clause 1 of this Article but fall into either of the following cases may not act as arbitrators:
+ Incumbent judges, procurators, investigators, enforcement officers or civil servants of peoples courts, peoples procuracies, investigative agencies or judgment enforcement agencies:
+ The accused, defendants, persons serving criminal sentences or having served the sentences but having their criminal records not yet remitted.
– Arbitration centers may set criteria for their arbitrators which are higher than those specified in Clause 1 of this Article.
Rights and obligations of arbitrators
– To accept or refuse to settle disputes.
– To be independent in dispute settlement.
– To refuse to provide dispute-related information.
– To enjoy remuneration.
– To keep secret the circumstances of disputes they settle, unless they have to provide information to competent state agencies under law.
– To ensure impartial, fast and prompt settlement of disputes.
– To adhere to the rules of professional ethics.
Regulations on The arbitration association
The arbitration association is a socio-professional organization of arbitrators and arbitration centers nationwide. The establishment and operation of the arbitration association comply with the law on professional associations
Functions of arbitration centers
Arbitration centers have the function to organize and coordinate the settlement of disputes by institutional arbitration and assist arbitrators in administrative, office and other affairs during arbitral proceedings.
Conditions and procedures for the establishment of arbitration centers
– An arbitration center may be established when at least 5 founding members being Vietnamese citizens who satisfy all the criteria of arbitrators specified in Article 20 of this Law request such establishment and this center is granted an establishment license by the Minister of Justice.
– A dossier of request for establishment of an arbitration center comprises:
+ A written request;
+ Draft charter of the arbitration center, made according to a form issued by the Ministry of Justice:
+ List of founding members and enclosed papers evidencing their eligibility under Article 20 of this Law.
– Within 30 days after receiving a complete and valid dossier, the Minister of Justice shall grant an arbitration center establishment license and approve the arbitration center’s charter. In case of refusal, h+she shall issue a written reply clearly stating the reason.
Registration of the operation of arbitration centers
Within 30 days after receiving its establishment license, an arbitration center shall register its operation at the provincial-level Justice Department of the locality in which it has its head office. Past this time limit, if the arbitration center fails to register its operation, its license will no longer be valid.
The provincial-level Justice Department shall grant an operation registration paper for an arbitration center within 15 days after receiving a written request for registration.
Announcement of the establishment of arbitration centers
– Within 30 days after obtaining its operation registration paper, an arbitration center shall publish in 3 consecutive issues of a central daily or a local daily of the locality in which it registers its operation the following principal details:
+ Name and address of its head office;
+ Its operations;
+ Serial number of the operation registration paper, issuer and date of issuance;
+ Time of commencing its operation.
– An arbitration center shall post up at its head office the details specified in Clause 1 of this Article and the list of its arbitrators.
Legal entity status and structure of arbitration centers
– Arbitration centers have the legal entity status and their own seals and bank accounts.
– Arbitration centers operate for not-for-profit purposes.
– Arbitration centers may set up their branches and representative offices at home and abroad.
– An arbitration center has the Executive Board and Secretariat. The structure and apparatus of an arbitration center shall be prescribed in its charter.
The Executive Board of an arbitration center is composed of the chairman, vice chairman (chairmen) and may also include a secretary general appointed by the chairman. The chairman is an arbitrator.
– An arbitration center has a list of arbitrators.
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Frequently asked questions
A complaint shall be enclosed with copies of the petition, arbitration agreement and arbitration council’s decision. Enclosed papers in a foreign language shall be translated into Vietnamese and their translations be legally certified.
A request for a court to apply interim urgent measures shall not be regarded as rejection to the arbitration agreement or waiver of the right to dispute settlement by arbitration.
When the defendant assumes that the dispute falls beyond the jurisdiction of arbitration, or there is no arbitration agreement, or the arbitration agreement is invalid or unrealizable, the defendant shall clearly indicate such in the self-defense statement.
Conclusion: So the above is Regulations on arbitration agreements and arbitrators in Vietnam . Hopefully with this article can help you in life, please always follow and read our good articles on the website: lsxlawfirm.com
