Guide on vietnamese rules of procedure for recognition and enforcement of foreign awards pursuant to the new york convention of 1958

Vietnam This Country Answer reflects the state of the law as of 07 February 2018 A The Contracting State and the New York Convention Name of Contracting State (also specify jurisdiction(s), if relevant) Socialist Republic of Vietnam (Vietnam) Date of entry into force of the New York Convention 11 December 1995 (Source: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_st atus.html) Has any reservation been made under Art I(3) of the New York Convention regarding: (a) reciprocity? Yes Vietnam only considers the recognition and enforcement of arbitral awards made within the territory of another Contracting State of New York Convention With respect to arbitral awards made in the territories of non-contracting States, it will apply the Convention on the basis of reciprocity (b) commercial relationships? Yes.Vietnam has made a reservation for commercial relationship Accordingly, awards involved in non-commercial disputes, e.g matrimonial or criminal disputes, are not qualified for recognition and enforcement in Vietnam (Source: http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_st atus.html) In addition to arbitral awards made in the territory of another State, the New York Convention (Art I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them? Yes Arbitral awards made in the territory of Vietnam but rendered by foreign arbitrations shall not be considered as domestic arbitral awards under Vietnamese laws Accordingly, the said awards must be subject to recognition and enforcement procedure (Sources: Civil Procedure Code of the 2015, Art 424; The 2010 Law on Commercial Arbitration of Vietnam, Art 3, paras 11 and 12) B National sources of law What specific sources of law are applicable enforcement of foreign awards (e.g statutes, directives, other legal instruments)? (i) to recognition and regulations, codes, New York Convention on Recognition and Enforcement of foreign arbitral awards (NYC) (ii) (iii) (iv) (v) (vi) Decision no 453/QD-CTN of the President of Vietnam dated 28 July 1995 on the Accession of the Socialist Republic of Vietnam to the New York Convention Civil Procedure Code no 92/2015/QH13 of the National Assembly, which came into effect as from 01 July 2016 (CPC) Law on Commercial Arbitration no 54/2010/QH12 of the National Assembly, Art 3, paras 11 and 12 regarding the definition of foreign arbitrations and foreign arbitral awards (LCA) Law on Enforcement of Civil Judgement no 26/2008/QH12 enforced as from 01 July 2009 and was amended and supplemented by Law no 64/2014/QH13 dated 25 November 2014 of the National Assembly which came into force as from 01 July 2015 (LECJ) Resolution 01/2014/NQ-HDTP dated 20 March 2014 of the Council of Judges of the Supreme People’s Court, Article 5, para regarding determination of entitlements of courts to activities of foreign arbitrators in Vietnam (Resolution 01/2014) C Limitation periods (time limits) (a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards? Yes (b) If yes, what is the applicable limitation period (time limit) and when does it start running? An application for recognition and enforcement of an arbitral award must be filed within 03 years as from the date the award has legal effect Under LCA, the date the award has legal effect will be as from the date of its issuance (Sources: CPC, Art 451.1; LCA, Art 61.5) D National courts and court proceedings What authority or court enforcement of foreign awards? has jurisdiction over recognition and The award creditor may (i) file an application to the Ministry of Justice if the provisions of international treaty to which Vietnam is a signatory required so or (ii) directly submit to the provincial competent court of Vietnam if the relevant international treaty does not provide for or there is no relevant international treaty In the first case, after examining the application dossier, the Ministry of Justice shall transfer the case files to a provincial Court which has the jurisdiction over recognition and enforcement of foreign awards Accordingly, if the foreign arbitral awards are governed NYC, the award creditor could directly submit the application to the competent court (Sources: CPC, Art 451 and Art 454.1) What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g domicile or assets of respondent in the jurisdiction, etc.)? In order for the Ministry of Justice or competent court to accept jurisdiction over recognition and enforcement of foreign arbitral awards, the award debtor must be domiciled/headquartered or a relevant asset must exist within the territory of Vietnam (Source: CPC, Art 39.2(e)) Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings? The first decision on recognition and enforcement are obtained through inter partes proceedings Specifically, at the hearings, there shall be the participation of: (i) a hearing panel including 03 judges, (ii) a procurator representing the competent procuracy, and (iii) the award debtor and the award creditor (or the representatives thereof) However, if the award debtor (or the representative thereof) requests the court to consider the petition in their absence or the award debtor (or the representative thereof) is absent twice, the court shall still proceed the hearing to consider the application for the recognition and enforcement (Source: CPC, Art 458, paras 1, 2, and 3) 10 (a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse? Yes (b) How many levels of appeal or recourse are available against this decision? In general, two Firstly, the first instance decision may be appealed at a High People’s Court upon the appeal of a party or the protest of the procuracies Next, the decision rendered by a High People’s Court may be recoursed under cassation or retrial procedures (Sources: CPC, Art 461 and Art 462.6) 11 What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e party actually obtains possession of assets as opposed to simply freezing assets)? An award creditor could request for execution against assets in Vietnam only when the decision granting the recognition and enforcement of foreign arbitral awards takes legal effect A first-instance decision shall take effect after 15 days since its issuance if it is not appealed against That is also the earliest possible time for the award creditor to request for execution An appellate, cassation, or retrial decision shall take legal effect since its issuance (Sources: CPC, Art 427.3, Art 482.1 (d), Art 461, Art 349, and LECJ, Art 2.1 (d)) E Evidence required 12 (a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)? Unless otherwise required by international treaty that Vietnam has ratified, the applications for recognition and enforcement of foreign arbitral awards in Vietnam must be enclosed with: (i) the original or certified true copy of the foreign arbitral award; and (ii) the original or certified true copy of arbitration agreements between parties Accordingly, the “arbitration agreement” shall include an arbitration agreement incorporated in a contract or an independent arbitration agreement signed by parties or contained in an exchange of letters or telegrams However, in practice, the award creditors are often requested to further provide its business registration certificate to prove the signatory capacity of the legal representative who signed the Application Additionally, during the process of legal proceeding, the court may request the parties to provide other evidence such as the company charter of parties, business registration certificate of the award debtor, or other documents to prove the signatory capacity of the parties’ representatives and/or the proper conduct of the arbitration, for example affidavits/ legal opinion on foreign laws and written confirmations of international express couriers to prove actual service, etc (Sources: NYC, Article IV; CPC, Article 453.1) (b) Is it necessary to provide the entire document or only certain parts (e.g entire contract or only arbitration clause)? For the purpose of recognition and enforcement of foreign arbitral awards in Vietnam, it is required to provide entire foreign arbitral award and entire contract which contains the arbitration agreement (c) Are originals or duly certified copies required? The documents enclosed with the Application must be either originals or duly certified copies which are notarized, legalized and translated into Vietnamese before submitting to the Ministry of Justice or the court (Source: CPC, Article 453) (d) How many originals or duly certified copies are required? The 1958 New York Convention and CPC not provide for the quantity of set of documents to be submitted together with the Application However, in practice, the award creditors are often required to submit 01 original set of documents which is duly notarized and legalized and translated into Vietnamese language and 03 certified copies thereof (e) Does the authority or court keep the originals that are filed? The original set of documents will be kept by the court 13 (a) Is it necessary to provide a translation of the documents supplied? According to Article 453.2 of the 2015 CPC, the award creditors are required to provide the translation of the documents enclosed with the Application to submit to the court (Source: CPC, Art 453.2) (b) If yes, into what language? The required documents must be translated into Vietnamese language (Source: CPC, Art 453.2) (c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)? The Vietnamese translation must be made by a qualified translator being collaborator of a notary public office The translator shall sign every page of his/her translations before the notary public certified such translations (Sources: Law on Notarization no 53/2014/QH13 dated 26 June 2014, Art 61, came into effect as from 01 January 2015) (d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g entire award or only part setting forth the decisions; entire contract or only arbitration clause)? It is required to provide a full translation of entire foreign arbitral award and entire contract which contains the arbitration agreement Other documents may be partially translated on a case-by-case basis F Stay of enforcement 14 (a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art V(1)(e) of the New York Convention? Yes The court shall issue a decision to stay the legal proceedings for recognition and enforcement of the foreign arbitral award if the foreign arbitral award is being reconsidered by a competent agency of the country where the award is rendered Even after a decision recognizing an arbitral award is issued by the court, the enforcement of such decision could be suspended when the court receives the written notification of a competent foreign authority which is considering the request for appealing or setting aside the foreign arbitral award (Sources: CPC, Art 457.2(a) and Art 463.1) (b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g forum non conveniens)? The court could further, stay legal proceedings for consideration of the application for recognition and enforcement of the foreign arbitral awards if (i) the award debtor being individual has died or the award debtor being agency/organization has been merged, amalgamated, divided or dissolved without successor; or (ii) the award debtor being individual is lack of legal capacity but his/her lawful representatives have not been determined; The enforcement of decision recognizing and enforcing foreign arbitral award can also be suspended where the Chief Justice of the Supreme People’s Court of Vietnam or the Head of the Supreme People’s Procuracy of Vietnam issues a decision on suspension of enforcement due to cassation or retrial procedure; or an application/request for an insolvency of the award debtor is enrolled (Sources: CPC, Article 457.2 (b) and (c) and Article 463; Article 49 LECJ) (c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security? No G Confidentiality 15 (a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents? Since Vietnamese laws keep silent in respect of whether the documents filed in legal proceeding for recognition and enforcement form part of the public record, the regulations on the confidentiality of the evidence in general civil proceedings shall be applied Accordingly, all the evidence, documents filed in legal proceedings for recognition and enforcement form part of the public record There are only some cases where the evidence would be preserved confidential such as material/evidence contents related to State secrets, fine customs and practices of the nation, professional secrets, business secrets, family secrets or secrets of individuals' private lives at the legitimate requests of the involved parties Accordingly, a party may file a request to the Court for preservation of confidentiality of documents if such documents fall within one of the abovementioned circumstances (Source: CPC, Art 109.2) (b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings? The hearings on recognition and enforcement, as other court trials, are not confidential A party may submit a request for a confidential hearing only in some special cases i.e it is necessary to keep the State secrets, preserve the nation’s fine customs and practices, protect minors or to keep professional secrets, business secrets, personal secrets of the involved parties as their request (Source: CPC, Art 15.2) (c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)? The court judgments on recognition and enforcement, as general rules, are published and shall be posted on e-portal of the Court which is available at: http://dichvucong.toaan.gov.vn/ or https://congbobanan.toaan.gov.vn/ (in Vietnamese only) However, to avoid the publication of confidential information or the court judgement, the party requesting the preservation of confidentiality must prove that the publication of the court judgements would result in violation of State secrets, the nation’s fine customs and practices, professional secrets, business secrets, personal secrets, family secrets, national interests, public interests or the legitimated rights and interests of agencies, organizations and individuals (Sources: CPC, Article 269.4; Art 315.3 and Art 350.2; Resolution 03/2017/NQ-HDTP dated 16 March 2017 of the Council of Judges of the Supreme People’s People Court regarding the publication of court decision and judgement on the e-portal of the Court, Art.2, in effect as from 01 July 2017) H Other issues 16 When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards? In order to be recognized and enforced in Vietnam, a foreign arbitral award must be an arbitral decision resolving the entire dispute, terminating the arbitral procedures and being effective Thus, the possibility of recognition and enforcement of foreign interim arbitral awards is excluded Similarly, partial awards are not qualified as arbitral awards for recognition and enforcement under Vietnamese laws (Sources: CPC, Art 424.2; LCA, Art 3.10) 17 When, if ever, can a party obtain recognition and enforcement of nonmonetary relief in foreign arbitral awards (e.g order requiring a party to deliver up share certificates or other property)? A party can obtain recognition and enforcement in Vietnam of non-monetary relief in foreign arbitral awards However, in practice, such arbitral awards may be difficult for organizing coercive enforcement 18 When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards? If a foreign arbitral award rendered over a dispute exceeds the request of parties of the arbitration agreement, part of the relief granted in such a foreign award on the matter requested to be settled by the parties may be recognized and enforced by the Court in Vietnam The award creditor could also request the enforcement agency to enforce only part(s) of the relief granted in foreign awards (Sources: CPC, Art 459.1(d), LECJ, Art 7.1(a)) 19 When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art V(1)(e) of the New York Convention? Vietnamese courts not consider recognition and enforcement of foreign arbitral awards which have been set aside by the competent authority of the country in which those arbitral awards were rendered Even if the court issued a decision recognizing and enforcing a foreign arbitral award, such decision will be repealed if the court has received a notice in writing of foreign competent authorities on setting aside such an arbitral award (Source: CPC, Art 459.1 (g) and Art 463.2) 20 Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)? The submission of a request for recognition and enforcement of a foreign arbitral awards requires the payment of filing fees of VND 3,000,000.00 (approx USD 132) If a party wants to appeal the decision of the first instance court, they are required to pay an additional appeal court fee advance of VND 300,000 (around USD 13) Furthermore, when applying for execution of the court judgement on recognition and enforcement, the award creditor shall pay enforcement fee which is calculated basing on the actual amount which the award creditor will receive from the execution procedure Secondly, one of the exceptions for recognition and enforcement of foreign arbitral awards under Vietnamese laws is when the recognition and enforcement of such foreign arbitral award breaches the fundamental principles of Vietnamese laws, instead of violating public policy under Article V.2(b) NYC However, Vietnamese laws provide no official definition or guidance to interpret this ground Thus, when considering recognition, the Vietnamese Courts sometimes relies on this exception to review the merits of the disputes and the content of the arbitral awards Another common ground often raised by the award debtor to object the recognition and enforcement of foreign arbitral awards which were rendered in an ex-parte proceedings, is that it was not given proper notice of arbitration documents The award creditor is thus, often required to provide the court with evidence proving that the award debtor has actually received these notices of the arbitral tribunal e.g the receipt, minutes of delivery, etc., rather than evidence of serving, e.g the express waybill of the couriers (Sources: CPC, Art 459.2(b) and Art 459.1.c; Court cost and fee tariff attached to Resolution No 326/2016/UBTVQH14 dated 30 December 2016 of the Standing Committee of National Assembly, came into force as from 01 January 2017; Decree no 62/2015/ND-CP dated 18 July 2015 of the Government guiding for law on enforcement of civil judgments, Art 46, came into force as from 01 September 2015) Country Rapporteur: Nguyen Manh Dzung, MCIArb Other contributors: Nguyen Thi Thu Trang, Vu Thi Phuong Thao, and Nguyen Thi Mai Anh  ... referred to in Art V(1)(e) of the New York Convention? Yes The court shall issue a decision to stay the legal proceedings for recognition and enforcement of the foreign arbitral award if the foreign. .. the merits of the disputes and the content of the arbitral awards Another common ground often raised by the award debtor to object the recognition and enforcement of foreign arbitral awards which... enforcement of foreign awards which have been set aside by the competent authority referred to in Art V(1)(e) of the New York Convention? Vietnamese courts not consider recognition and enforcement of foreign