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Interim measures in vietnamese commercial arbitration

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MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** MANAGING BOARD OF SPECIAL TRAINING PROGRAMS PHAN VO KHANH VY INTERIM MEASURES IN VIETNAMESE COMMERCIAL ARBITRATION BACHELOR THESIS Commercial Law Faculty Academic year: 2013 - 2017 HO CHI MINH CITY 2017 MINISTRY OF EDUCATION AND TRAINING HO CHI MINH CITY UNIVERSITY OF LAW -*** MANAGING BOARD OF SPECIAL TRAINING PROGRAMS PHAN VO KHANH VY INTERIM MEASURES IN VIETNAMESE COMMERCIAL ARBITRATION BACHELOR THESIS Commercial Law Faculty Academic year: 2013 - 2017 Supervisor: Dr TRAN THANG LONG Student: PHAN VO KHANH VY Student ID: 1353401010091 Class: CLC38B HO CHI MINH CITY 2017 DECLARATION I hereby declare that the thesis “Interim measures in Vietnamese commercial arbitration” is my own study under the guidance of Dr Tran Thang Long (Deputy Head of Legal English Division, Ho Chi Minh City University of Law) All of the information other than my idea to be used or quoted has been acknowledged by means of complete references I shall bear full responsibility for this declaration 18th July, 2017 Phan Vo Khanh Vy LIST OF ABRREVIATIONS The following table describes the significance of various abbreviations used throughout the thesis Abbreviation CPC Meaning Civil Procedure Code 2015 (Law no 92/2015/QH13) dated 25/11/2015 Decree 63 Decree no 63/2011/ND-CP dated 28/4/2011 of the Government regarding the application of Law on Commercial Arbitration 2010 LCA Law on Commercial Arbitration 54/2010/QH12) dated 17/06/2010 LECJ Law on Enforcement of Civil Judgment (Law no 26/2008/QH12) dated 14/11/2008, amended by Law no 64/2014/QH13 dated 25/11/2014 LSCP Law on State Compensation 2010 Liability (Law (Law 10/2017/QH14) dated 20/6/2017, takes effect on 01/7/2018 Resolution 01 Resolution no 01/2014/NQ-HDTP dated 20/3/2014 Resolution 02 Resolution no 02/2005/NQ-HDTP dated 27/4/2005 no no INTRODUCTION CHAPTER 1: THEORATICAL ISSUES OF INTERIM MEASURES 1.1 Concept of interim measures 1.1.1 The concept of interim measures in international commercial arbitration 1.1.2 The concept of interim measures in Vietnamese commercial arbitration 14 1.2 Functions of Interim Measures 18 1.2.1 Common functions of interim measures under international commercial arbitration 18 1.2.2 Function of interim measures under Vietnamese commercial arbitration 22 Conclusion of Chapter 23 CHAPTER 2: INTERIM MEASURES UNDER THE VIETNAMESE LAW 25 2.1 The principle of concurrent jurisdiction 25 2.2 Power to apply interim measures 26 2.2.1 Power of arbitral tribunal to apply interim measures 27 2.2.2 Power of the court to apply interim measures 30 2.3 List of applicable interim measures 31 2.4 Conditions to apply interim measures 38 2.4.1 Interim measures can be applied only at the request of a party 38 2.4.2 Interim measures can be applied only if the party proves the necessity of applying interim measures 38 2.4.3 Interim measures can be applied only if the requesting party provides security in order to compensate losses incurred by the applied party in the course of being applied interim measures 39 2.5 Procedures to apply, modify and terminate interim measures 41 2.5.1 Procedures to apply interim measures 41 2.5.2 Procedures to modify and terminate interim measures 42 2.6 Damages 43 2.7 Power to enforce interim measures 45 Conclusion of Chapter 46 CONCLUSION 47 BIBLIOGRAPHY INTRODUCTION The rationale of the thesis Commercially speaking, conducting business with traders bears some risks, one of them is the possibility of having disagreement — dispute arising from or out of these The parties can settle the issues by either adjudicative processes such as litigation or arbitration, or consensual processes such as mediation or conciliation Along with the development of the world economy, dispute resolutions as tools to aid the parties in resolving disagreement, especially arbitration, have also undergone many changes Arbitration is preferred for the enforceability of awards, the possibility to avoid specific legal systems and national courts, the flexibility and confidentiality.1 Commercial arbitration appeals to the disputed parties and has become one of the most-sought dispute resolutions, yet as developed as it is, arbitration still has many drawbacks — “lack of effective sanctions during the arbitral process” and “lack of speed” are named among the worse features of arbitration in a recent survey — needs a strengthening legal regime than the current procedures Arbitration has many tools to keep parties from potential damages and to protect the proceedings; one of them is interim measures — a temporary relief to protect the parties’ right until the final award is rendered Historically, national legislatives usually not grant arbitration the power to carry out some procedural order, including interim measures order However, as the international trade developed, international legal system, legal procedures for commerce also grow The nation states have to come forward and provide means for the willing parties to opt out of the judicial system and adopt their own dispute resolution forum Many countries such as Switzerland, Korea, Hong Kong have modified their national arbitration laws to expressly recognize that White&Case, University of Queen Mary (2005), 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, p Ibid Marianne Roth (2012), “Interim Measures”, 2012 Journal Dispute Resolution, pp 425-435; Magaret L Moses (2008), The Principle and Practice of International Commercial Arbitration, p 100; Chartered Institute of Arbitrators (2015), International Practice Guidelines: Application for Interim Measures, p.1; Gary B Born (2011), International Arbitration: Cases and Materials, Chapter 10 courts and arbitrators possess concurrent jurisdiction to grant interim measures.4 Following this trend of development in legal regime for commercial arbitration, Vietnam legislative also made an immense change by introducing the first Vietnamese commercial arbitration regulation — the Ordinance on Commercial Arbitration 2003 (OCA) However, under the OCA, only the competent courts are enable to grant interim measures, arbitral tribunals did not have this power As an effort to uniform with international legal standard and to promote the competitive business environment, in 2010, the National Assembly of Vietnam has adopted the Law on Commercial Arbitration 2010 (LCA) Different from the OCA, the LCA has enhanced the efficiency of arbitral procedure by granting arbitrators the power to apply interim measures Being able to apply interim measures helps arbitrators in their rulings, especially the enforcement of an arbitral award Interim measures are also effective tools to aid the tribunal in analyzing evidences in order to reach plausible findings However, since the promulgation of the LCA in 2010 (came into effect in 2011), the application of interim measures in arbitral proceeding ordered by arbitrator is by far less popular than the court-ordered ones The fact that the applicant preferred court-ordered than arbitral tribunal-ordered interim measures suggests that there may be some shortcomings on the application procedures, which then hold back the arbitral tribunal to efficiently issue provisional order The issues vary from the power to apply interim measures to the applicable measures in commercial arbitration Therefore, it is fitting to conduct further research on the defect of law and making proposal to enhance and strengthen Vietnam legal regime regarding interim measures in arbitral procedures The above reckoning urges the choice of “Interim measures in Vietnamese commercial arbitration” (hereinafter known as “thesis”) as bachelor thesis topic to have better understanding on current regulations of Vietnam regarding interim measures in commercial arbitration Furthermore, the thesis aims to find out the gaps between current legislation and practices, in order to demonstrate the need to Article 374.1 Swiss Code of civil procedure; Article 183.1 Private International Law Act; Article 18 Arbitration Act of Korea; Article 32 KCAB International Arbitration Rules; Section 35 Hong Kong Cap 609 Arbitration Ordinance adopt international legal standard regarding interim measures in commercial arbitration Literature reviews 2.1 Former studies from scholars outside of Ho Chi Minh City University of Law There are various researches on Vietnam arbitral procedures, some of them provided legal study on interim measures provisions, including: (1) “Interim measures in arbitral procedures” by Pham Duy Nghia, Journal of Legislative Study, 23/2010 pp 77-84 This research analyzes the definition of interim measures, the power to issue interim order, the necessity of interim measures and provision of security to request for interim measures This research gives general idea and points out certain defects regarding the above-mentioned issues, yet since it was conducted in 2010, it has not provided practical view on those issues (2) “Vietnam Legislation on Commercial Arbitration” by Do Van Dai, Tran Hoang Hai, National Politics Publisher, 2011, pp 260-290 The authors thoroughly analyze the Vietnamese legal regime on interim measures However, this work was conducted in 2010 and has yet to provided practical view on the application of the LCA (3) “The authority to apply interim measures of arbitrator in some national legislation and Vietnam” by Tran Hoang Hai, State and Law Journal, 8(292) 2012, pp 56-65 This research focuses deeply on the issue of jurisdiction of arbitrator in applying interim measures in some national legislation and Vietnam, yet it has not provided deep research on other aspect of interim measures (4) “Perfecting legislation on application of interim measures in commercial dispute resolution in Vietnam” by Nguyen Thi Thu Thuy, State and Law Journal, 11/2014, pp 59-64 The author provides general analysis on the definition and necessity, concludes on the ex parte nature of interim measures The author also points out the shortcoming of ex parte measures, and proposes some changes on this matter (5) “The authority to apply interim measures in arbitral procedures” by measures in Vietnamese commercial arbitration, the author proposes taking the first approach, revising Articles 48 and 49 of the LCA and adopting the wording of Article 17 of the MAL This is a bold approach as it grants the tribunal full discretion, yet, in the context of a fast developing economy, the author finds this approach necessary and appropriate to the Vietnamese commercial arbitration Regarding the issue of applicable measures of the court, because before Resolution 01, there is no problem on applying measures not stipulated in the LCA, the author suggests revising Resolution 01 there is no reason to limit the applicable court-ordered measures 2.4 Conditions to apply interim measures Under the LCA, as guided in Resolution 01, the author finds that there are four requirements that a party must satisfy in order to request for interim measures, regardless of forum 2.4.1 Interim measures can be applied only at the request of a party Under Articles 49.1 and 53.1 of the LCA, the arbitral tribunal and the court can only apply interim reliefs if there is a request from a party in dispute This requirement differentiates the arbitral procedure and civil procedure In civil cases, an interim measure can be applied as requested by the party or at the court’s discretion in accordance to Article 135 of the CPC Articles 48.1 and 53.1 of the LCA stipulate that “the parties in dispute” are entitled to request to the tribunal or the court to apply interim measures Article 3.3 of the LCA interprets the term “parties in dispute” (or, interchangeably, disputed party, for the sake of translation) as “Vietnamese or foreign individuals, bodies or organizations which participate in arbitration proceedings in the capacity of claimants or respondents” 2.4.2 Interim measures can be applied only if the party proves the necessity of applying interim measures Article 50.2 of the LCA requires the party to satisfy the necessity when requesting for interim measures in both forums Interim measures usually restrict the civil rights’ of the party being applied against, for example, the measure of prohibiting a party from selling their asset has restricted one’s civil right to selfdetermination of their own asset Thus, when a party filed a request for interim measure, it is prerequisite to provide their reasoning on why the tribunal or the 38 court must grant their request.119 Necessity serves as a basis for the context of the case and the purpose to apply such measure against a party.120 The LCA gives no further explanation on “necessity”, thus, the tribunal and the court has room of discretion as analyzed in Chapter Hence, the court or tribunal may be wary of applying interim measures, ultimately decline the request On this matter, the MAL lays down a whole Article 17A for the conditions to request for interim measures For example, if the requested measure are under Article 17.2(a) of the MAL then under Article 17A.1, the requesting party has to demonstrate to the tribunal that there is (i) the necessity of irreparable harm and; and (ii) a reasonable possibility of the applicant’s success on the merits of the case 121 By providing the conditions for granting interim measures comprehensively in Article 17A of the MAL, along with the list of documents in Article 50 of the LCA, the requirements will become more comprehensive for the party and the tribunal to follow Thus, the author opines that legislator may consider on conducting deep research and adopting this approach of the MAL in the future 2.4.3 Interim measures can be applied only if the requesting party provides security in order to compensate losses incurred by the applied party in the course of being applied interim measures Under Articles 49.4 and 50.3 of the LCA requires the party to provide security when requesting for interim measures whether they request the court or the tribunal The tribunals can order the requesting party to provide security in case they not conform to this requirement.122 However, the author opines that this provision remains vague on the determination of the amount of security Article 50.3 of the LCA and Article 136 of the CPC123 requires the security of a value corresponding to the amount of the loss, which could be sustained as a result of inappropriate application of interim relief, in order to protect the interest of the 119 Nguyen Thi Thu Thuy (2016), supra (95), p 62 Ibid 121 Howard M Holtzmann, Joseph E Neuhaus, et al (2015), supra (60), pp 169-170 122 Luong Thanh Quang (2012), supra (54), p 69 123 When requesting the court for interim measures, under Article 12.4 Resolution 01, the issue of how to determine the amount and how to monitor that amount shall follow CPC 120 39 party against whom interim relief is sought There are two issues stemmed from this provision: (i) how to determine an amount of loss which a part may incurred; (ii) what can be considered as inappropriate application of interim measures Firstly, regarding the tribunal-ordered measures, the LCA requires the value of security must be an amount corresponding with the amount of loss may be incurred Vietnamese commercial arbitration does not provide any further explanation for a tribunal and a court on how to determine such amount Thus, it is subject to the tribunal’s discretion to decide on this matter Moreover, the tribunal has to decide on the amount of security in very little time, there is risk of error in deciding on amount of security The author finds that the tribunal may be wary to determine security amount, and may decline the party’s request Whereas, if the tribunal accept the request then the obligation of security remains a challenge if the measure may not cause any actual loss but the requesting party is still obliged to provide security Additionally, in commercial arbitration meaning the parties are usually business entities Hence, putting an amount of security in a freeze account may interrupt the flows of the disputed parties’ assets, sometimes causing more loss than protecting their right Turning to how to determine on the amount of security, both the LCA and CPC stipulated the amount of security and the CPC has yet to have any guidance on interim measure Hence, the thesis shall analyze the guidance to the previous CPC to make clear on what the authority may approach on how to decide on the amount of interim measures Article 120.1 of the previous CPC requires the amount of security the requesting party provides must be equivalent to the duty of the party being applied against, which can be understood that the security must be equivalent to the value of property the measure applied on However, Article 8.3(a) of the Resolution 02/2005/NQ-HDTP (Resolution 02) interprets the amount of security as equivalent to the amount of actual loss the party being applied interim measures against may incurred.124 Moreover, under Article 8.3(c) of the Resolution 02, there are measures that are not required for security such as 124 The previous CPC requires security as the same amount if a party has to redeem the other in case of wrongful application of interim measures Article 8.3(a) of Resolution 02 in Vietnamese is "Nghĩa vụ tài sản" nghĩa vụ phải bồi thường thiệt hại thực tế xảy cho người bị áp dụng BPKCTT cho người thứ ba việc yêu cầu áp dụng PKCTT không gây 40 the attachment of the disputed property and the property is under the owner’s care Since this approach of actual loss in Resolution 02 is now adopted in the current CPC, the author opines that other situations regarding the application of interim measures provided in Resolution 02 must also be introduced, as soon as possible, in a new guidance to support the current CPC on this matter Secondly, Article 50.3 of the LCA and Article 136 of the CPC stipulate that the amount of loss be incurred by wrongly applying interim measures Hence, there is another issue is that what may considered as wrongly applied interim measures? Whether the phrase “wrongly apply” here means that the tribunal applies measures different from the requested measure or the tribunal applies a requested measure not set out in Article 49.2? The law does not provide a clear approach in this regard and as the issue is closely connected to the responsibility of the tribunal and the court in applying interim measures, it shall be further analyzed in section 2.6 Conclusively, current applicable regulation remains ambiguous on the standard for the tribunal or the court to determine the amount of security This may lead to two consequences, first, the tribunal may be varied on order interim measure and may decline to order interim measures Alternatively, if they decide to apply interim measures then with no clear guidance like the court and within a short period, the tribunal may risk making error in deciding on the security The author suggests urgently (i) provide guidance for determination of security under the LCA; and (ii) introduce new guidance on applying the current CPC regarding the determination of security 2.5 Procedures to apply, modify and terminate interim measures 2.5.1 Procedures to apply interim measures Article 53.4 of the LCA provides that the procedure for the court to order interim reliefs in commercial arbitration shall follow CPC.125 To clarify this issue, Article 12.4 of the Resolution 01 provides that the court shall follow the procedures under Articles 48, 49, 50 and 52 the LCA, and finally the CPC Under Articles 50.4 and 53.2 of the LCA and Article 133.2 of the CPC, the tribunal and the court 125 Do Van Dai, Tran Hoang Hai (2011), supra (85), p 284 41 must follows the procedure set out in the LCA The tribunal and the court must consider and issue a decision on interim relief, within three (3) business days from the date of receipt of an application, after the applicant has provided the security prescribed in Article 50.3 of the LCA In the CPC, there is also the case of emergency under Article 111.2 of the CPC where the court must issue interim order within forty-eight hours from the date of receipt of the application 2.5.2 Procedures to modify and terminate interim measures Firstly, regarding the applicable procedure in case of tribunal-ordered measures, under Article 51.1 of the LCA, the parties in disputes have the right to request the tribunal to modify and terminate interim measures during the course of rendering a dispute Under Article 51.2 of the LCA, the modification procedures are similar to the application one as analyzed in section 2.5.1 Nevertheless, under Article 51.3 of the LCA, there are only three grounds where the tribunal may terminate the applied interim measure 126 Therefore, the law grants the tribunal broader discretion when modifying a measure then terminating one In case of termination, under Article 51.4 of the LCA the tribunal shall return the security to the requesting party unless the requesting party is liable for the wrongful request that causes loss incurred by the party being applied against Secondly, regarding the applicable procedure in case of court-ordered interim measures, under Article 53.3 of the LCA, the parties have the right to request the court to modify or terminate the interim measures The procedure to consider the request to modify or suspend is also the procedure to apply interim measure under Article 53.2 of the LCA Article 53.4 of the LCA and Article 12.4 of the Resolution 01 refers the basis to modify and terminate court-ordered measures to Articles 137 and 133 of the CPC as “when the application of interim measures became inappropriate and needs modification” If party requests to modify the applied measure, they must prove the necessity of the modified interim measures and provide additional security for the additional measures.127 Under Article 138 of the CPC, there are many grounds to suspend a court-ordered interim measure 126 (i) the requesting party request for termination; (ii) the party being applied has turned in their property or there is someone who has fulfilled their duty to the requesting party; and (iii) the duty owing to the requesting party is terminated by law 127 Tuong Duy Luong (2017), supra (114), p 260 42 The court may return the security to the requesting party unless the requesting party is liable for the wrongful request that causes loss incurred by the party being applied against 2.6 Damages In this section, the thesis shall analyze two issues: (i) the responsibility to compensate of the tribunal; and (ii) the responsibility to compensate of the court if there is wrongful application of interim measures in commercial arbitration Firstly, unlike under Article 140 CPC where a party can file petition to the court for the application, modification or suspension of interim measure, the party cannot file a petition to the tribunal Under Articles 49.5 and 52 of the LCA, the tribunal must compensate the party incurred damages caused by applying a measure that is different from or exceeds the requested one However, there may be the case where the tribunal applies the interim measure not within the period under LCA and caused the requesting party to incurred loss This ground should be included as a basis for compensation like under Article 113.3 of the current CPC Additionally, regarding the responsibility of a tribunal, there is an issue stemmed from the wording of the LCA as already raised in section 2.4.3 The issue is that who shall bear the responsibility to compensate if the tribunal applied an interim measure as requested by the party, but the requested measure is not stipulated under Article 49.2 of the LCA, and this measure caused damage to the party? The LCA and Resolution 01 has not yet approach this issue The interpretation of Article 49.5 of the LCA remains debatable as recently there is the following case that highlighted this issue In VSH, the tribunal accepted the request of the contractors, the applied measure was argued to be different from applicable measures under Article 49.2 of the LCA VSH also claimed they incurred loss from this “wrongful” application of interim measure and requested the court to force the arbitrators involved in the case to compensate them, in a different, civil case The first issue is whether the tribunal is liable for a measure applied just as requested by a party if the applied measure is not referred to in the LCA The second one is whether the responsibility is on the whole tribunal or just the arbitrators who agreed to apply 43 this measure (noted that in VSH, there is one arbitrator who did not agree to apply the measure requested by the contractors) In reality, there is no follow-up public information regarding the case for damages between VSH and the arbitrators Thus, these issues remain unanswered and demands for amendments of the current legislation Secondly, under Article 140 of the CPC, the parties may file petition to the court regarding the application, modification or suspension of interim measure Under Article 113.3 of the CPC, the involved parties (parties under Article 68 of the CPC) incurred loss from the wrongful application of interim measures by the court as listed under Article 133.2 of the CPC may claim for compensation under the Law on State Compensation Liability 2017 (LSCP) 128 According to Article 19 of the LSCP, the States has the responsibility to compensate if the application of the interim measure is different from or exceeds the requested measures, or if the application was not within the period set out under the LCA or the CPC without reasonable ground The basis to claim for damages under Article 113.2 of the CPC has been revised from the previous regulation to include the case of late application of interim measure The requesting party must provide security as a precedent requirement; hence, a measure applied not on a timely manner according to Article 53.2 of the LCA may cause enormous loss to the requesting party The delay may result in (i) the successful dissipating of assets or (ii) the requesting party suffering from the cost of their security Therefore, the revised grounds under Article 133.2 of the CPC have successfully filled this gap Besides the wrongful application of interim measure, the wrongful modifications, suspension of interim measures may also cause loss to the applied party, but has to be set out under the CPC as a basis for compensation The Shiseido case is an example where the court issued a series of allegedly wrongful modification of interim orders regarding the measures of “assets freeze” 129 In this case, the applied parties argued that there was no ground to justify the three modifications of interim measure that had caused loss to the applied party.130 Article 113 of the 128 Law on State Compensation Liability (Law no 10/2017/QH14) dated 20/06/2017, takes effect on 01/07/2018 129 Luong Thanh Quang (2012), supra (46), p 77 and fn 137 130 Ibid., p 80 44 CPC only covers the case of wrongful application, therefore the author opines to include the basis of wrongful modification and suspension by including these cases in Article 113 of the CPC in order to enhance the efficiency of interim measures in commercial arbitration 131 Conclusively, the author opines to (i) include late application of interim measure as a basis of compensation of a tribunal; (ii) clarify the responsibility of the arbitrator in a tribunal in case he/she did not agree to apply the wrongful measure; and (iii) consider adding the responsibility of the court to compensate in case of wrongful modification, termination of interim measures 2.7 Power to enforce interim measures The enforcement of interim measure remains uncertain and shall be analyzed in this section The LCA only provide the effect of arbitration award under Article 61.5 of the LCA, but not provide any regulation on the affect of an interim order of a tribunal 132 Under Article 50.5 the LCA, Article 26 Decree 63/2011/ND-CP (Decree 63), the enforcement of tribunal-ordered interim measures shall conform with the procedure to enforce a court-ordered interim measures under the Law on Enforcement of Civil Judgments (LECJ) 133 According to Article 2.1(e) of the LECJ, an order issued by a tribunal may be enforced if the order has already become effective However, the LCA and Resolution 01 not provide any regulation on the effect of an interim order of a tribunal The enforcement authority cannot determine on whether the interim order has come into effect, thus there is no legal basis under the LECJ to enforce the tribunal-ordered interim measures The application, modification and termination of court-ordered interim measures, however, takes effect immediately after issued under Article 139 of the CPC Therefore, under Article 2.2(b) of the LECJ, the court-ordered interim measures shall be enforced immediately after its issuance The advantage of enforcement of court-ordered interim measures is one of the main reasons why the parties hardly ever request a tribunal for interim 131 Ibid Ibid., p 65 133 Law on Enforcement of Civil Judgment (Law no 26/2008/QH12) dated 14/11/2008, amended by 64/2014/QH13 dated 25/11/2014 132 45 measures Therefore, the author proposes to urgently revise and include a provision on the effective date of the tribunal-ordered interim measures in the current LCA Conclusion of Chapter Chapter has provided an analysis on interim measures applied by the arbitral tribunal and the court in Vietnamese commercial arbitration The thesis has analyzed the power of the tribunal and the court to order interim measures, as well as the applicable measures applicable, the conditions to grant an interim order, the procedures to apply, modify and suspend an order of interim measures and lastly, the enforcement of interim measures applied by the arbitral tribunal or the court Chapter also provides case study to find out the defects of law and goes over some regulations of the MAL in order to propose some new approaches, ultimately perfecting the legislation regarding interim measures in Vietnamese commercial arbitration Firstly, the author also proposes to consider adopting the emergency arbitrator legal regime to fill the gap regarding the power of the arbitral tribunal, as well as provide a principle on how the tribunal agrees to a request of interim measure Secondly, the author opines to revise Articles 48 and 49 of the LCA and take the approach of the MAL regarding the applicable measures of the tribunal, to revise Article 12 of the Resolution 01, excluding the provision contradicting with Article 48.1 of the LCA Thirdly, the approach of laying down a separated article on the requirements to request should be taken into account Fourthly, the author suggests providing guidance for the arbitral tribunal to determine the security under LCA and a guidance to support the current CPC on the same matter Fifthly, the author opines to (i) include late application of interim measure as a basis of compensation of a tribunal; (ii) clarify the responsibility of the arbitrator in a tribunal in case he/she did not agree to apply the wrongful measure; and (iii) consider adding the responsibility of the court to compensate in case of wrongful modification, termination of interim measures Finally, the author proposes to include the effective date of arbitral order in the LCA 46 CONCLUSION This thesis intends to contribute to perfecting the legal regime regarding interim measure in Vietnamese commercial arbitration, especially when Vietnam plans to develop national economy, increase oversea trading Besides the limit and error that the thesis may encounter, it has successfully concluded on the following issues Firstly, the thesis has examined the concept of interim measures under international and Vietnamese commercial arbitration, along with providing knowledge of the same matter under the MAL The thesis also lay down some cases where the authority applied interim measure basing on the purposes of the party to demonstrate the approach of the MAL, ultimately, propose some changes on the concept under Vietnamese commercial arbitration Secondly, the thesis goes over the remaining issues on other aspect of interim measures in Vietnamese commercial arbitration This includes analyzing (i) the power to apply tribunal-ordered and court-ordered interim measures, (ii) the applicable measures, (iii) the conditions to apply, (iv) the procedures to apply, modify and suspend an interim measures, as well as (vi) the cost and damages when wrongfully apply a measure, and (vii) the enforcement of interim measures by the tribunal and the court Finally, the thesis provides some case studies to highlight the remaining defect of the current legislation The thesis also gives some brief researches on the approach of the MAL on some issues to provide some proposals in order to perfect the current legislation on commercial arbitration The proposal including revising Articles 48, 49 and 50 of the LCA to provide a general definition of interim measures, along with its functions and a separated, comprehensive article on the requirements to request interim measures 47 BIBLIOGRAPHY A Legal Documents Vietnamese Legal Documents 1.1 Civil Procedures Code 2004 (Law no 24/2004/QH11) dated 15/6/2004, amended in 2011 by Law no 65/2011/QH12 dated 29/3/2011 1.2 Civil Procedures Code 2015 (Law no 92/2015/QH13) dated 25/11/2015 1.3 Law on Commercial Arbitration 2010 (Law no 54/2010/QH12) dated 17/6/2010 1.4 Law on Enforcement of Civil Judgments 2008 (Law no 26/2008/QH12) dated 14/11/2008, amended in 2014 by Law no 64/2014/QH13 dated 25/11/2014 1.5 Law on Enforcement of Civil Judgment (Law no 26/2008/QH12) dated 14/11/2008, amended in 2014 by Law no 64/2014/QH13 dated 25/11/2014 1.6 Law on State Compensation Liability (Law no 10/2017/QH14) dated 20/6/2017 1.7 Decree 63/2011/ND-CP dated 28 April 2011 of the Government regarding the application of Law on Commercial Arbitration 2010 1.8 Resolution 01/2014/NQ-HDTP dated 20 March 2014 of Council of Judges of the Supreme People’s Court regarding the application of Law on Commercial Arbitration 2010 1.9 Resolution 02/2005/NQ-HDTP dated 27/04/2005 of the Supreme People's Court on the application of Chapter VIII “Emergency Interim Measures” of Civil Procedure Code 2004, amended in 2011 1.10 Joint Circular 01/2012/TTLT-TANDTC-VKSNDTC-BTP dated 18 September 2012 of the Supreme People's Court, the Supreme People's Procuracy and the Ministry of Justice regarding the responsibility to compensate in civil procedures, administrative procedures Foreign Legal Documents 2.1 Arbitration Act 1996 of England 2.2 Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce 2017 2.3 Argentine Code Of Civil And Commercial Procedure i 2.4 Australian Centre for International Commercial Arbitration, Arbitration Rules 2016 2.5 British Columbia International Commercial Arbitration Act in Canada (Last amended on January 1, 2015) 2.6 China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules 2015 2.7 Dutch Civil Procedural Law 2015 Book 2.8 German Arbitration Law 1998 2.9 Hong Kong Cap 609 Arbitration Ordinance 2.10 Rules of Arbitration of International Chamber of Commerce 2017 2.11 Russian Federation Law on Commercial Arbitration 2.12 Russian Federation Law on International Commercial Arbitration 2.13 Singapore International Arbitration Act 2.14 Swiss Private International Law of 1987 2.15 Swiss Private International Law of 1987 2.16 UNCITRAL Arbitration Rules 2010 2.17 UNCTRAL Model Law on International Commercial Arbitration 1985 with amendments as adopted in 2006 B Reference materials In Vietnamese 1.1 Tưởng Duy Lượng (2017), Bình luận Bộ luật tố tụng dân sự, Luật trọng tài thương mại, Nhà xuất Tư Pháp 1.2 Đỗ Văn Đại, Trần Hoàng Hải (2011), Pháp luật Việt Nam Trọng tài thương mại Thực tiễn xét xử, Nhà xuất Chính trị Quốc gia 1.3 Nguyễn Thị Thu Thủy (2016), “Thẩm quyền áp dụng biện pháp khẩn cấp tạm thời tố tụng trọng tài”, Tạp chí Nhà nước pháp luật, Số 8/2016 tr.25-30 1.4 Trần Hoàng Hải (2012), “Thẩm quyền áp dụng biện pháp khẩn cấp tạm thời Trọng tìa pháp luật số nước Việt Nam”, Tạp chí Nhà nước Pháp luật, số 8/2012, tr.56-65 1.5 Phạm Duy Nghĩa (2010), “Biện pháp khẩn cấp tạm thời tố tụng trọng tài”, Tạp chí Nghiên cứu lập pháp, số 23(184), 2010, tr.77-79, 84 1.6 Nguyễn Thị Thu Thủy (2014), “Hoàn thiên pháp luât thủ tục áp dụng biện pháp khẩn cấp tạm thời giải tranh chấp thương ii mại Việt Nam nay”, Tạp chí Nhà nước Pháp luật, số 11/2014, tr.59-64 1.7 Lương Thanh Quang (2012), Biện pháp khẩn cấp tạm thời tố tụng trọng tài Việt Nam, Luận văn thạc sỹ, Trường Đại học Luật Thành phố Hồ Chí Minh 1.8 Trường Đại học luật Hà Nội (2008), Giáo trình Luật tố tụng dân Việt Nam, Nhà xuất Hồng Đức 1.9 Trường Đại học Luật Thành phố Hồ Chí Minh (2012), Giáo trình Luật Tố tụng dân Việt Nam, Nhà xuất Công an Nhân dân 1.10 Báo cáo số 320/BC-UBTVQH12, 12/5/2010 UBTVQH giải trình, tiếp thu chỉnh lý Dự thảo Luật Trọng tài thương mại 1.11 Tờ trình số 10/TTr-HLGVN Hội Luật gia Việt Nam 01/9/2009 Dự án Luật Trọng tài thương mại Reference materials in English 2.1 Alan Redfern (2004), Law and Practice of International Commercial Arbitration, Sweet & Maxwell 2.2 Association for International Arbitration (2007), Interim Measures in International Commercial Arbitration, Maklu 2.3 Chartered Institute of Arbitrators (2015), International Practice Guidelines: Application for Interim Measures 2.4 Gary B Born (2011), International Arbitration: Cases and Materials, Wolters Kluwer Law & Business 2.5 Grégoire Marchac (1999), “Note & Comment: Interim Measures in International Commercial Arbitration Under the ICC, AAA, LCIA and UNCITRAL Rules”, American Review of International Arbitration, no 123, pp 123-139 2.6 Howard M Holtzmann†, Joseph E Neuhaus, Edda Kristjánsdóttir, Thomas W Walsh (2015), A Guide to the 2006 Amendments to the UNCITRAL Model Law on International Commercial Arbitration: Legislative History and Commentary, Kluwer Law International 2.7 Lee Ann Tucker (2011), “Interim Measures under Revised UNCITRAL Arbitration Rules: Comparison to Model Law Reflects both Greater Flexibility and Remaining Uncertainty”, International Arbitration Brief 1, no.2 (2011), pp 15-23 iii 2.8 Magaret L Moses (2008), The Principle and Practice of International Commercial Arbitration, Cambridge University Press 2.9 Marianne Roth , “Interim measures”, Journal of Dispute Resolution, Volume 2012, Issue 2, pp 425-435 2.10 Michael D Goldhaber (2013), “The Rise of Arbitral Power over Domestic Courts”, Stanford Journal Of Complex Litigation, Vol1:2, pp 374-416 2.11 Mika Savola (2016), Croatia Arbitration Yearbook Vol 23, pp 73-97 2.12 Sandeep Adhipathi (2003), Interim Measures in International Commercial Arbitration: Past, Present and Future LLM Theses and Essays Paper 2.13 Secretariat of the ICC (2012), Secretariat's Guide to ICC Arbitration, 2.14 Thomas, Webster, & Buhler, M (2014), Handbook of ICC Arbitration: Commentary, Precedents, Materials, Sweet & Maxwell 2.15 U.N Secretary-General (2000), U.N DOC A/CN.9/WG.II/WP.108, Possible Uniform Rules on Certain Issues Concerning Settlement of Commercial Disputes 2.16 UNCITRAL (2012), Digest of case law of UNCITRAL Model Law on International Commercial Arbitration 1985 with amendments as adopted in 2006 2.17 UNCITRAL (2016), UNCITRAL Secretariat Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) 2.18 Walter G Semple (1993), “The UNCITRAL Model Law and provisional measures in International Arbitration Law”, International Business Law Journal, No 6, pp 765-781 2.19 White&Case, University of Queen Mary (2005), 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration 2.20 Yu Prytyka (2011), “Interim measures in International Commercial Arbitration”, Law of Ukraine, No.2, pp 148-157 Reference Websites iv 3.1 Thảo Nguyên, “Thủy Lộc phản pháo câu chuyện quản lý”, website Người đưa tin địa http://www.nguoiduatin.vn/ky-3-thuy-locphan-phao-va-cau-chuyen-quan-ly-a32787.html 3.2 Nigel Rawding QC, Elizabeth Snodgrass, “Commercial arbitration of England and Wales”, http://globalarbitrationreview.com/jurisdiction/1003135/england-&wales 3.3 Thảo Nguyên, “Chuyện hy hữu: DN Nhật Bản phong tỏa DN Việt Nam”, website Người đưa tin địa http://www.nguoiduatin.vn/chuyen-hy-huu-dn-nhat-ban-phong-toa-dnviet-nam-a32431.html Cases 4.1 UNCITRAL, PCA Case No 2009-23, Chevron Corp v Republic of Ecuador, UNCITRAL Arbitration, PCA Case No 2009-23 (16/02/2012) 4.2 Singapore: High Court, [2015] SGHC 311, Five Ocean Corporation v Cingler Ship Pte Ltd (PT Commodities and Energy Resources, intervener) (04/12/2015) 4.3 Decision no 08/2012/QD-BPKCTT dated 20/01/2012, 10/2012/QDBPKCTT dated 01/02/2012, 21/2012/QD-BPKCTT dated 17/02/2012, 43/2013/QD-BPKCTT dated 09/01/2013 of People’s Court of Ho Chi Minh City [Shiseido Cosmetic Ltd v Thuy Loc Commercial and Construction Ltd] 4.4 Decision no 03/2012/QD-BPKCTT dated 11/7/2012 of People’s Court of Hainoi [COTEC Construction JSC v Minh Viet Investment JSC] 4.5 Decision no 498/VIAC dated 27/5/2016 [Vinh Son — Song Hinh hydro power JSC v Contractors] v ... of interim measures in Vietnamese commercial arbitration 14 1.2 Functions of Interim Measures 18 1.2.1 Common functions of interim measures under international commercial arbitration. .. Regarding the scholar’s definition of interim measures in commercial arbitration, Luong Thanh Quang in his master thesis 55 providing his own definition, as follows: Interim measures in commercial. .. analyzed the concept of interim measures in international commercial arbitration and in Vietnamese commercial arbitration In order to fill the gap in Vietnamese commercial arbitration, the thesis
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