THE VIETNAMESE COURT’S JUDICIAL POWER TO SUPPORT COMMERCIAL ARBITRATION

ACADEMY OF SOCIAL SCIENCES GRADUATE ACADEMY OF SOCIAL SCIENCES NGUYEN THI THU TRANG THE VIETNAMESE COURT’S JUDICIAL POWER TO SUPPORT COMMERCIAL ARBITRATION Specialty: Business Law Code: 93.80.10.7 SUMMARY OF PHD DISSERTATION OF LAW HANOI - 2021 The work is carried out at: Graduate Academy of Social Sciences Vietnam Academy of Social Sciences SUPERVISOR Prof Dr Nguyen Thi Mo Reviewer 1: Associate Professor Dr Tang Van Nghia Reviewer 2: Associate Professor Dr Le Thi Thu Thuy Reviewer 3: Dr Nguyen Van Cuong The dissertation will be defended at the Dissertation Examination Committee at the institutional level at the Graduate Academy of Social Sciences, 477 Nguyen Trai, Thanh Xuan, Hanoi at……… ….hour…………minute, date………month……….year… See the dissertation at: - National Library of Vietnam - Library of the Graduate Academy of Social Sciences LIST OF ARTICLES RELATED TO THE DISSERTATION Nguyen Thi Thu Trang (2020), Thuc Trang Phap Luat Viet Nam Ve Tham Quyen Ho Tro Tu Phap Cua Toa An Lien Quan Den Ap Dung Bien Phap Khan Cap Tam Thoi Trong To Tung Trong Tai, Journal Of Human Resources And Social Sciences, No 1/2020 Nguyen Thi Thu Trang (2020), Cac Giai Phap Nang Cao Chat Luong Thuc Hien Tham Quyen Ho Tro Tu Phap Cua Toa An Viet Nam Doi Voi Trong Tai Thuong Mai, Journal Of Human Resources And Social Sciences, No 6/2020 Nguyen Ngoc Minh, Nguyen Thi Thu Trang & Nguyen Thi Mai Anh (2020), Enforceability of arbitral awards in Vietnam- alarming practice, The Asia-Pacific Arbitration Review 2021, Law Business Research, U.K, p.103-109 Nguyen Manh Dzung, Nguyen Thi Thu Trang (2018), International Investment Dispute Resolution in Vietnam: Opportunities and Challenges in Julien Chaisse and Luke Nottage (2018), International Investment Treaties and Arbitration Across Asia, Brill Nijhoff, p 280-302 Also being published at Vol 18, Issue 5-6, The Journal of World Investment and Trade, 2017, p 918 Ho Ngoc Hien, Nguyen Thi Thu Trang (2020) The Interpretation And Application Of The New York Convention 1958 For Recognition And Enforcement Of Foreign Arbitral Awards In Vietnam Journal of Critical Review, (5), p 2191-2197 PREFACE The significance of the research topic Commercial arbitration, as a private adjudicative body selected by the parties, is different from the Court - a public body established by the State, the commercial arbitration has limited competence under some circumstances as prescribed by law For this reason, national and international laws have recognized the Court’s judicial power to support commercial arbitration under these certain circumstances The Court’s judicial power to support commercial arbitration activities has also been recognized under Vietnamese laws, but the regulations prescribed in these various documents are divided, unspecific, and inconsistent with the New York Convention and the UNCITRAL Model Law, which creates many problems when Vietnamese Courts implement and apply provisions on judicial power to support commercial arbitration Effective implementation of the Courts’ judicial power to support commercial arbitration will promote the development of commercial arbitration in Vietnam and have positive influence on the investment environment in the country Therefore, research on this issue is clearly needed To provide more insights into this issue, the PhD candidate chose “The Vietnamese Court’s judicial power to support commercial arbitration” as the research topic of the dissertation Research purpose and tasks 2.1 Research purpose: To clarify theoretical issues about the Court’s judicial power to support commercial arbitration, analyze and evaluate the current law and practice of exercising the Court’s judicial power to support commercial arbitration, propose detailed directions and solutions to complete the law, improve the efficiency of the practice of Vietnamese Courts’ jurisdiction to give judicial assistance for commercial arbitration 2.2 Research tasks: To conduct research and explain the results to clarify theoretical issues about the Court’s judicial power to support commercial arbitration; to analyze and evaluate the current Vietnamese law provisions and practice of the Court’s judicial power to support commercial arbitration to point out inadequacies of the law and problems in the exercise of this authority; to propose directions and solutions to complete the law on Court’s judicial power to support commercial arbitration and solutions to improve the efficiency of implementation of Court’s judicial power to support commercial arbitration in the coming time Subject and scope of the research 3.1 The research subject: The research subject of the dissertation is issues in relation to the Court’s judicial power to support commercial arbitration, Vietnamese law provisions, the 1958 New York Convention, the UNCITRAL Model Law, and some other countries’ laws on commercial arbitration, to Vietnamese Court’s judicial power to support commercial arbitration, and to law provisions of other countries on Court’s judicial power to support commercial arbitration 3.1 The research scope: In terms of research content, the dissertation is limited to the analysis of provisions on the Court’s judicial power to support domestic and foreign commercial arbitration recognized in the Law on Commercial Arbitration (LCA) and the 2015 Civil Procedure Code (CPC) In terms of timeline, the dissertation is limited to research from 2003 when Ordinance on Commercial Arbitration (OCA) came into effect up to now In terms of scope, the dissertation studies provisions of Vietnamese laws, corresponding provisions of the 1958 New York Convention, the UNCITRAL Model Law, and laws of some other countries Methodology and research methodology The dissertation is presented on the basis of research on the Marxist-Leninist methodology on dialectical materialism and historical materialism, on the State and law and views of the Party and State on economic development, international integration, and judicial reform In addition, the dissertation also employs a combination of research methods, for example, analytical and synthetic methods, method of comparative law, systematic method, and case study method New contributions to the dissertation The dissertation clarified the concept of judicial power, the Court’s judicial power to support commercial arbitration and pointed out the characters and contents of the Court’s judicial power to support commercial arbitration, basic theoretical issues regarding the concept of judicial jurisdiction and Court’s judicial power to support commercial arbitration, and explained the need for Court’s judicial assistance for commercial arbitration The dissertation analyzed provisions of Vietnamese laws on Vietnamese Courts’ judicial power to support commercial arbitration in comparison with the New York Convention and the UNCITRAL Model Law and analyzed the practical application of related legal instruments Accordingly, it pointed out the inadequacies in the law provisions as well as limitations in the implementation of the Court’s judicial power to support commercial arbitration in practice The dissertation proposed specific solutions to enhance the effectiveness of Vietnamese law on the Vietnamese Court’s judicial power to support commercial arbitration and solutions to efficiently exercise Court’s judicial power to support commercial arbitration in the future Theoretical significance The research results of this dissertation contribute to clarifying theoretical and practical issues about the Vietnamese Court’s judicial power to support commercial arbitration, which is a valuable reference in researching, teaching, and studying, and could be taken as a reference when applying the LCA and the CPC The proposed recommendations in the dissertation are useful for Courts, arbitrators, lawmakers, and disputing parties in commercial arbitration Structure of the dissertation Besides the Preface, Conclusions, Table of references, and Annexes, the dissertation comprises Chapters: Chapter Literature review and theoretical basis related to the dissertation topic Chapter Theoretical issues of the Court’s judicial power to support commercial arbitration Chapter Current legal framework and practical implementation of the Court’s judicial power to support commercial arbitration Chapter Directions and solutions to improve the law and enhance the efficiency of the implementation of the Vietnamese Court’s judicial power to support commercial arbitration CHAPTER LITERATURE REVIEW AND THEORETICAL BASIS RELATED TO THE DISSERTATION TOPIC 1.1 Literature review related to the dissertation topic 1.1.1 Researches on commercial arbitration in general Researches on commercial arbitration in general include: (i) group of studies on concepts and characteristics of commercial arbitration such as “Fouchard Gaillard Goldman on International Commercial Arbitration” by E Gaillard and J Savage or “Course on Dispute Settlement” by UNCTAD, and (ii) group of studies on distinctions between domestic commercial arbitration and foreign commercial arbitration such as the New York Convention Guide of the UNCITRAL Secretariat, the Judicial Manual on Arbitration and Mediation of the Supreme People’s Court (SPC) and the IFC 1.1.2 Research on Court’s judicial power to support commercial arbitration Studies on Court’s judicial power to support commercial arbitration are grouped as follows: (i) group of studies on the Court’s judicial power to support commercial arbitration in general, (ii) group of studies on specific contents of the Court’s judicial power to support commercial arbitration before and during the arbitration proceedings; (iii) group of studies on Court’s judicial power to support commercial arbitration with respect to the enforcement of arbitral awards; and (iv) group of studies on solutions to improve the law and enhance the efficiency of the exercise of Court’s judicial power to support commercial arbitration 1.1.3 Comments on the research status related to the dissertation topic Issues that are dealt with in previous studies and inherited and further developed in this dissertation include: Regarding the general theory of commercial arbitration: Previous studies introduced theoretical basis, analyzed and clarified the definition, characteristics, and role of commercial arbitration; jurisdiction of commercial arbitration in general and jurisdiction of the arbitral tribunal when resolving the dispute as well as the scope of dispute resolution of commercial arbitration; the correlation between the Court and arbitration, and especially the basis for Court’s judicial power to support commercial arbitration; Regarding the content and scope of the Court’s judicial power to support commercial arbitration, some individual studies have basically addressed the relationship between the jurisdiction to assist and observe of the Court in general and Vietnamese Courts in particular for domestic commercial arbitration and foreign commercial arbitration; In addition, there are studies pointing out the inadequacies of the law and proposing some solutions to enhance the law on t Court’s judicial power to support commercial arbitration Issues that are left open or not completely resolved and require further research are as follows: First, some theoretical aspects regarding commercial arbitration were not fully researched and analyzed to explain the role of the Court’s judicial assistance for commercial arbitration; the Vietnamese Court’s judicial power to support domestic and foreign commercial arbitration was not identified Second, there was not any research that attempts to clarify the theoretical basis for the Vietnamese Court’s judicial power to support commercial arbitration or the need for the law on Court’s judicial power to support commercial arbitration Third, there was not any research that fully and comprehensively analyzed Vietnamese laws on judicial power to support commercial arbitration and the practical implementation of the Vietnamese Court’s judicial power to support commercial arbitration Fourth, there were no comprehensive solutions to improve Vietnamese laws on the Vietnamese Court’s judicial power to support commercial arbitration and to enhance the efficiency of the exercise of the Vietnamese Court’s judicial power to support commercial arbitration 1.2 Theoretical basis and approach of the research topic 1.2.1 Theoretical basis The dissertation is based on the following theories and legal doctrines: theory of party autonomy, theory of State Court’s jurisdiction, theory of res judicata, Marxist-Leninist theory of the State and law, and legal theory 1.2.2 Research questions What are the definition, characters, and content of the Court’s judicial power to support commercial arbitration? Why legal provisions on Court’s judicial power to support commercial First, due to the “private” nature of arbitration, arbitral decisions and awards need Court’s judicial assistance to ensure their enforcement Second, the arbitral tribunal does not have any authority over third parties not participating in the arbitration agreement, therefore in some cases, parties to the dispute or arbitral tribunal will need Court’s assistance to limit a third party’s rights Third, there are many cases where parties to the dispute need the Court’s assistance before the constitution of the arbitral tribunal Fourth, the arbitral tribunal’s power has certain restrictions under the laws where the arbitration takes place Fifth, Court is a public judicial body having functions and missions to give judicial assistance for commercial arbitration to ensure justice, legitimate rights and interests of the disputing parties Sixth, under the economy and international cooperation aspects, Court’s judicial support for domestic and foreign commercial arbitration in Vietnam will promote the commercial market, create a favorable legal environment to attract foreign investment, and contribute to strengthening coordination between Vietnam and other countries in the exercise of Court’s jurisdiction to provide judicial assistance in general 2.3 Basic contents of legal provisions on the Court’s judicial power to support commercial arbitration 2.3.1 Requests falling under the Court’s judicial power to support commercial arbitration Under the UNCITRAL Model Law, the circumstances under 13 which Courts can participate in the arbitral proceedings to assist or supervise commercial arbitration must be provided in the Model Law In some cases, it is difficult to distinguish between the judicial power to support and supervise commercial arbitration Consideration of the application purpose and how the Court exercises its jurisdiction is needed to determine when the Court is exercising its judicial power to support For example, when a state Court handles an objection to the decision on the arbitral tribunal’s jurisdiction or application for setting aside an arbitral award, it may, in some aspects, also exercise its judicial power to support commercial arbitration 2.3.2 Detailed contents of the Court’s judicial power to support commercial arbitration Court’s judicial power to support commercial arbitration before and during the arbitral proceedings includes: (i) enforcing arbitration agreement, (ii) appointing and replacing arbitrators in ad hoc arbitration, (iii) applying interim and emergency measures, (iv) collecting evidence and summoning witnesses The Court’s judicial power to support commercial arbitration after the end of the arbitral proceedings includes: (i) recognizing the presumptive enforceability of a domestic arbitral award by only considering the annulment of an arbitral award in accordance with the limited grounds under the law, allowing the arbitral tribunal to amend and supplement the arbitral award and registering ad hoc arbitral award; and (ii) recognizing and enforcing foreign arbitral awards by only refusing to recognize foreign arbitral awards in accordance with the law and allowing 14 recognition and enforcement of the foreign arbitral award in part Compared to the UNCITRAL Model Law, Vietnamese Courts have the power to assist commercial arbitration in registering ad hoc arbitral awards Conclusion of Chapter The regulation on Court’s judicial power to support commercial arbitration is utterly necessary to ensure the efficiency of the arbitral proceedings as well as the rights of the parties to the arbitration Hence, Court’s judicial power to support domestic and foreign commercial arbitration is provided under the national laws on commercial arbitration of Vietnam and other states in two basic stages which are the pre-arbitration procedure and the arbitration procedure, and the post-award procedure The legal framework for and practice of the Vietnamese Court’s judicial power to support commercial arbitration will be addressed in Chapter of the dissertation based on these particular contents CHAPTER LEGAL FRAMEWORK AND PRACTICAL IMPLEMENTATION OF THE COURT’S JUDICIAL POWER TO SUPPORT COMMERCIAL ARBITRATION 3.1 Legal framework for and practical implementation of the Court’s judicial power to support commercial arbitration before and during the arbitral proceedings 3.1.1 Regarding the Court’s judicial power to support the enforcement of arbitration agreements First, pursuant to Article LCA and Article 472.1.a CPC, the Court shall return the petition or suspend the dispute 15 resolution if the parties have an arbitration agreement The provisions of Vietnamese laws are basically consistent with the UNCITRAL Model Law and the 1958 New York Convention The shortcoming is the inconsistency between the terms used in the LCA and the CPC Second, the Court instructs the parties to refer to arbitration under Article 8.1 UNCITRAL Model Law and Article II.3 New York Convention However, the LCA does not provide for this authority This is an inadequacy of Vietnamese law and leads to conflicting Court practices in Vietnam Third, under Article 44 LCA and Article 10 Resolution 01/2014, the Court handles claims regarding the decision on the jurisdiction of the arbitral tribunal Pursuant to Article 5.5 Resolution 01/2014, Vietnamese Courts also have judicial power to support foreign commercial arbitration by handling claims regarding the foreign arbitral tribunal’s decision on its jurisdiction or the validity of the arbitration agreement when the seat of arbitration is in Vietnam However, the absence of provisions allowing the other party to present its opinion in relation to the claims of the petitioner is unreasonable Likewise, the fact that only one judge is authorized to accept or refuse the claim on the arbitral tribunal’s jurisdiction and the validity of the arbitration agreement at his or her own discretion while the Court’s decision in this matter is unappealable or re-examined under the cassation procedure is one of the shortcomings of current Vietnamese arbitration law 3.1.2 Regarding the Court’s judicial power to support the appointment and replacement of arbitrators in ad hoc arbitration 16 This jurisdiction is provided for under Article 5.5 Resolution 01/2014, Articles 41 and 42 LCA Nevertheless, there is no guidance on the procedure and criteria for appointing arbitrators From the application of the said provision in practice in Vietnam, dispute resolution by ad hoc arbitration is not yet common in Vietnam As a result, there is no official report of the number of cases the Court assists in appointing or replacing arbitrators in ad hoc arbitration 3.1.3 Regarding the Court’s judicial power to support the application, modification or cancellation of interim and emergency measures First, regarding Court’s judicial power to support the application, modification or cancellation of interim and emergency measures, Vietnamese Courts have the authority to apply, modify, or repeal interim and emergency measures to assist domestic and foreign commercial arbitration having its seat in Vietnam The right to request the Court to apply interim and emergency measures arise after the claim has been submitted to commercial arbitration Second, the Court can apply 11 measures prescribed at Article 49.2 LCA and Article 114 CPC upon the request of the parties to the arbitration Third, the lack of provisions on the conditions under which the Court applies interim and emergency measures to support commercial arbitration results in the subjective, arbitrary application of interim and emergency measures of some Courts 3.1.4 Regarding the Court’s judicial power to support the collection of evidence and summon of witnesses Regarding the jurisdiction to collect evidence, although 17 Article 46 LCA basically conforms with the UNCITRAL Model Law, Vietnamese law sets out stricter conditions for the Vietnamese Courts to exercise the judicial power to support commercial arbitration in collecting evidence compared to the Model Law Regarding the jurisdiction to summon witnesses prescribed at Article 47, the current law has not dealt with how the Court could continue to support the arbitral tribunal or how to impose sanctions in case the witness is still absent despite being summoned without a legitimate reason The LCA has not given guidance on how the Court determines the necessity of the witness in disputes resolved by commercial arbitration As for the scope of application, under Article 5.5 Resolution 01/2014, the Court’s judicial power to support the collection of evidence and summon of witnesses is extended to both domestic and foreign arbitration As for the practical implementation, in general, the number of requests for judicial support of commercial arbitration in collecting evidence and summoning witnesses in Vietnam is still low, but they have been rising in recent years The SPC currently does not have a review or detailed statistics on the results of enrolment and resolution of each specific type of case involving domestic and foreign commercial arbitration 3.2 Legal framework for and practical implementation of the Court’s judicial power to support commercial arbitration in enforcing arbitral awards 3.2.1 Recognition of the presumptive enforceability of domestic arbitral awards 18 Vietnamese Court’s judicial power to support commercial arbitration in recognizing the presumptive enforceability of domestic arbitral awards is demonstrated in the following contents: First, the Court only considers the annulment of an arbitral award pursuant to the grounds under Article 68 LCA In principle, the grounds for setting aside an arbitral award under Vietnamese law are compatible with the grounds prescribed in Article 34.2 UNCITRAL Model Law However, in practice, the proportion of annulled domestic arbitral awards is still high One of the reasons for this phenomenon is the lack of (i) clear and detailed interpretation of the violation of basic principles of Vietnamese laws and (ii) clear provision on whether the decision to annul an arbitral award can be reviewed under cassation procedure Second, the Court allows the arbitral tribunal to correct, interpret, and supplement the arbitral award under Article 71.7 LCA Although this provision is compatible with the UNCITRAL Model Law and arbitration laws of many countries, it is hardly applied in Vietnam Third, the Court supports the registration of ad hoc arbitral awards to facilitate the enforcement of arbitral awards However, in reality, it is considered as a requisite for an ad hoc arbitral award to be enforced, and the time limit for registering the arbitral award is 01 year is unreasonable 3.2.2 Recognition and enforcement of foreign arbitral awards in Vietnam Vietnamese Court’s judicial power to support the recognition of the presumptive enforceability of foreign arbitral 19 awards is demonstrated in the following contents: First, Vietnamese Courts will automatically recognize and enforce foreign arbitral awards except for 09 cases prescribed in Article 459 CPC The exercise of this judicial power to support the enforcement of foreign arbitral awards in Vietnam in practice shows that the number of foreign arbitral awards have been recognized and enforced in Vietnam is not high because (i) the criteria for consideration of a foreign arbitral award for recognition and enforcement in Vietnam are inconsistent with the spirits of the New York Convention; (ii) the grounds to refuse recognition and enforcement under Article 459 CPC are not compatible with the grounds under the New York Convention and the UNCITRAL Model Law; (iii) some Vietnamese Courts still review the substantive issues resolved by the foreign arbitral tribunal; (iv) some Vietnamese Courts still make mistakes when considering the burden of proof of the parties; (v) provisions on the appellate mechanism for decisions on recognition and enforcement of arbitral awards of first-instance Courts under the 2005 CPC are not truly effective Second, Vietnamese Courts could recognize and enforce a foreign arbitral award in part under Article 459.1.d CPC However, in Vietnam, the Courts have not applied effectively and flexibly this provision to support the enforcement of foreign arbitral awards Conclusion of Chapter The provisions of Vietnamese law on the Court’s judicial power to support domestic and foreign commercial arbitration are basically consistent with the UNCITRAL Model Law and the 20 1958 New York Convention Especially the amendments and supplements in the LCA and the CPC are more complete and supportive of the enforceability of arbitration agreements and arbitral awards compared to the OCA and 2005 CPC Notwithstanding, there are still shortcomings reflected by the lack of detailed guidance of unclear provisions or the inconsistency with international law Consequently, Courts are confused or have unified and unconvincing solutions when exercising their judicial power to support commercial arbitration CHAPTER DIRECTIONS AND SOLUTIONS TO IMPROVE THE LAW AND ENHANCE THE EFFICIENCY OF THE EXERCISE OF THE VIETNAMESE COURT’S JUDICIAL POWER TO SUPPORT COMMERCIAL ARBITRATION 4.1 Directions to improve the law on the Vietnamese Court’s judicial power to support commercial arbitration First, improving the Vietnamese legal framework on Court’s judicial power to support commercial arbitration in accordance with the New York Convention and the UNCITRAL Model Law in parallel with the practice in Vietnam Second, strengthening the mechanism for Court to exercise its judicial power to support commercial arbitration In particular, it is necessary to establish an internal coordination and monitoring mechanism within the Court system, between Vietnamese authorities being the Courts and the Ministry of Justice, and a flexible and extensive international cooperation mechanism with other countries 21 Third, encouraging the development of resources, changing Court’s perspectives, and promoting the role of Courts in giving judicial assistance for commercial arbitration, helping the Courts to realize that commercial arbitration and the Court are partners in a system to ensure justice and not rivals to facilitate arbitration proceedings to become more effective 4.2 Solutions to improve the law on Court’s judicial power to support commercial arbitration Based on the analysis of the legal framework and evaluation of the practical implementation of the Court’s judicial power to support commercial arbitration in Chapter 3, the author proposes specific solutions to improve the law in this regard as follows: 4.2.1 Eliminate the inconsistencies in the use of words and terms in the LCA and the CPC 4.2.2 Amending the definition of “foreign arbitration” 4.2.3 Supplement provisions on the Court’s judicial power to support the enforcement of arbitration agreement 4.2.4 Supplement provisions guiding the exercise of Court’s Court’s judicial power to support the appointment of arbitrators in ad hoc arbitration, collection of evidence and summon of witnesses 4.2.5 Supplement provisions guiding the Court’s Court’s judicial power to support the application of interim and emergency measures to support commercial arbitration 4.2.6 Promulgate detailed guidance on Court’s judicial power to support foreign commercial arbitration having its seat in Vietnam 4.2.7 Complete provisions on the Court’s judicial power to 22 support the enforcement of domestic arbitral awards 4.2.8 Promulgate documents guiding the application and interpretation of provisions in relation to the recognition and enforcement of foreign arbitral awards 4.3 Solutions to enhance efficiency in the exercise of the Vietnamese Court’s judicial power to support commercial arbitration 4.3.1 Group of solutions regarding the mechanism for exercising the Vietnamese Court’s judicial power to support commercial arbitration: Strengthen the coordination between the Ministry of Justice and the Courts in resolving requests pertaining to judicial support for commercial arbitration Strengthen the coordination between the Ministry of Justice, Vietnamese Courts, and representative agencies of Vietnam in foreign countries Establish an effective monitoring mechanism for handling requests pertaining to judicial support for commercial arbitration at local Courts Strengthen the cooperation between Vietnam and other countries on exercising Court’s judicial power to support commercial arbitration 4.3.2 Group of solutions regarding the development of resources in judicial assistance for commercial arbitration: Enhance judges’ ability and change the Court’s perspective in handling requests about judicial support for commercial arbitration Encourage the investment in resources in terms of facilities 23 and technology for Courts and commercial arbitration in Vietnam Conclusion of Chapter The author proposed three directions and three groups of specific solutions regarding the improvement of the law and the mechanism for exercising the Court’s judicial power to support commercial arbitration as well as the development of resources in judicial support for domestic and foreign commercial arbitration Once Vietnamese law is consistent with the development of international law and Vietnamese Courts actively support commercial arbitration, in the near future, commercial arbitration will have the opportunity to develop rapidly and become a dispute resolution method preferred by domestic and foreign enterprises 24 CONCLUSION In parallel with globalization, arbitration has been playing a crucial role in international commerce and investment From the economic perspective, the policy to encourage the use of arbitration stems from a common perception which is to ensure that commercial adjudication is truly one of the important factors of the market and its effectiveness is an expression of the attractiveness of the market In countries having a developed economy, dispute resolution by arbitration and other alternative dispute resolutions such as negotiation, commercial mediation in general and the Court’s judicial power to support domestic and foreign commercial arbitration in particular are amplified Through the dissertation research, the author found that the Court’s judicial power to support commercial arbitration includes the jurisdiction to assist and supervise In many cases, it is difficult to clearly distinguish between the jurisdiction to assist and the jurisdiction to supervise; instead, it must be determined by how the Court applies it in practice on a case by case basis Today the relationship between the Court and arbitration is improved in a mutually supportive way Laws and practices of the Court’s judicial power to support commercial arbitration in many countries are also amended gradually to support both domestic and international arbitration at the maximum Moreover, Courts can still assist arbitration when exercising their judicial power to supervise arbitration to ensure law application and justice In Vietnam, arbitration law and the 2015 CPC, in principle, recognize basic principles of the UNCITRAL Model Law and the 25 New York Convention on Court’s judicial power to support commercial arbitration and even have progressive provisions supporting the enforceability of arbitration agreement Nevertheless, there are some provisions that are not compatible with these two legislations, and especially there is a discrimination between domestic commercial arbitration and foreign commercial arbitration On the other hand, Vietnamese Courts have not had proper awareness of this matter and still hold that most of the jurisdiction over commercial arbitration under the LCA and the CPC is to supervise arbitration activities In other words, Vietnamese Courts have not really welcomed and considered commercial arbitration as a friendly means of dispute resolution that can replace Courts, and they still tend to protect domestic enterprises These are the main reasons why the quality of the exercise of the Vietnamese Court’s judicial power to support domestic and foreign commercial arbitration is not high, causing investors and enterprises’ concerns in Vietnamese Courts and the business environment in Vietnam Although Vietnam Government can support commercial arbitration by completing the legal framework and providing other direct assistance regarding investment in resources, facilities, etc., Courts must maintain an active role and prove that they are willing to support arbitration, facilitate the arbitral proceedings and enforce arbitral awards This can only be done when Courts change their mindset on the jurisdiction to provide judicial assistance for commercial arbitration and the relationship between Courts and arbitration In the context of deep international integration, disputes 26 resolved by arbitration will undoubtedly increase in number and value, which will also lead to an increase in the demand for judicial support for commercial arbitration Based on the research results, the author believes that it is necessary to continue to conduct more in-depth research on each specific content of the Court’s judicial power to support commercial arbitration addressed in this dissertation; research on the possibility that Vietnam would ratify the UNCITRAL Model Law, research on possible legal consequences if Vietnamese Courts not promptly change their mindset and application of legal provisions towards the arbitration-friendly approach The experiences drawn from the study of international law and national laws of countries with developed arbitration as well as the practice of those countries in this regard will help Vietnam have the right directions and policies to improve the law and enhance the quality of Vietnamese Courts’ practice in relation to commercial arbitration and the development of arbitration in Vietnam 27 ... characteristics of the Court’s judicial power to support commercial arbitration 2.1.1 Definition of Court’s judicial power to support commercial arbitration Court’s judicial power to support commercial arbitration. .. law on the Vietnamese Court’s judicial power to support commercial arbitration and enhance the efficiency of the exercise of the Vietnamese Court’s judicial power to support commercial arbitration? ... solutions to improve Vietnamese laws on the Vietnamese Court’s judicial power to support commercial arbitration and to enhance the efficiency of the exercise of the Vietnamese Court’s judicial power to