11/24/2010 International Commercial Arbitration The Award and its challenge Nguyen Manh Dzung, MCIArb LLM in International & Comparative Dispute Resolution (QMUL) Managing Partner of Dzungsrt & Associates Vice President of Pacific International Arbitration Center (PIAC) Hanoi- 24/11/2010 Notion of Award - Distinctions “Award” should be distinguished from decisions of the tribunal: • Decision - result of any conclusion or resolution reached after consideration (not all are awards) • Award - a decision affecting the rights between the parties and which is generally capable of being enforced Award – distinctions • Procedural Orders ≠ Awards - Procedural Orders – make arrangements for the proceedings (e.g., place of hearings, timetable) but not settle a dispute May put an end to proceedings (without award) – Article 32 Model Law - Award – settles dispute • “Procedural orders” may be classified as awards 11/24/2010 Arbitration awards and decisions under Law on commercial arbitration in 2010 Arbitral decision means a decision of the arbitration tribunal during the dispute resolution process 10 Arbitral award means the decision of the arbitration tribunal resolving the entire dispute and terminating the arbitration proceedings Types of Awards I • Final • Partial • Interim • Award on agreed terms • Default award • Additional award Making the Award - Time Limits • Rarely set in laws - but see Brazil Art 23 - six months from commencement; Italy Art 820 - 180 days from appointment - Can be extended by state courts or consent between parties/arbitrators • Arbitration rules - Stockholm Art 33, ICC Art 24 – six months from Terms of Reference - CIETAC Art 56 – three months; WIPO Art 63 - nine months from formation of tribunal - Can be extended by tribunal 11/24/2010 Making the Award - Quorum • Most laws opt for majority decisions • Casting vote by chairman - On procedural matters only - UNCITRAL Article 31(2); Making the Award - Dissenting and concurrent opinions • Dissent - arbitrator disagrees with the result and reasoning of the award • Concurring opinion - arbitrator agrees with result but disagrees with reasoning • If minority opinion is included in the award, arbitrators should draft them in a way as to provide grounds for challenge Making of Award - Notification and Deposit • Some countries require awards to be deposited with the court - e.g., Belgium, Article 1702(2); France, NCPC Article 1477; Italy, CCP Article 825; Japan, CCP Article 799(2)) - Normally, upon a fee • Notification - essential for correction, notification, challenge of award - Communication by recorded delivery(!) 11/24/2010 Registration of Ad hoc Awards • Registration is not compulsory requirement for all awards; • Time Limit for Registration is one year; • Registration Procedure is supposed to be simple! • Time Limit for the Court to register the award is 15 days Form Requirements of Award • Requirements vary in laws and rules • Model law (Art 31) – award must: - Be in writing and signed (signature of all arbitrators not necessary); - Be reasoned; - Include date and place (of arbitration, not place where signed); - Be delivered to each party • Breach of formality will not invalidate award Content of Award • Tells a story • Submissions of parties and evidence • Basis for jurisdiction • Issues to be determined • Relief sought • Reasons • Award on the merits, decisions on damages, costs, interest 11/24/2010 Costs • Decisions on costs • Arbitration costs arbitrators, expenses connected with hearings (venue, translator), experts, administrative fees of institution - fixed or ad valorem (proportional) • Trend: losing party pays costs • Legal costs a separate issue Recognition and Enforcement of Foreign Arbitral Awards • Domestic vs foreign awards • Recognition vs Enforcement vs execution • New York Convention 1958 • Other multilateral conventions - Geneva 1927, Moscow 1972,Panama 1975, Amman 1987 - Washington 1965 • Bilateral Conventions • National law/common law NYC- Scope of application • Also deals with arbitration agreements • Recognition differs from enforcement • Revolutionary – did away with double exequatur • Two reservations (Art I(3)) - Reciprocity reservation, almost 2/3rds - Commercial reservation, about 40 states • Contracting states – >140 (Syria to UAE) 11/24/2010 NYC - “foreign” award • Articles I and III • “Foreign” and “non-domestic” award i.e awards made in the territory of another (contracting) state • Alternatively awards which are not deemed domestic in the enforcement state • Possibly, also a-national awards Domestic vs foreign awards Domestic awards: • Law on Commercial Arbitration in 2010 • Law on the Enforcement of Civil Judgments in 2008 Foreign awards: • New York Convention 1958 • Civil Procedural Code of Vietnam • Law on the Enforcement of Civil Judgments in 2008 NYC - minimum formal conditions Art IV Article IV - Authenticated original award or duly certified copy (if necessary, translations) and - original or copy of the arbitration agreement (if necessary, translations) 11/24/2010 NYC - grounds for refusing recognition and enforcement Art V(1) (a) Incapacity or invalid arbitration agreement (b) No proper notice or otherwise unable to present its case (c) Excess of authority (d) Composition of tribunal or procedure not in accordance with agreement of the parties (e) Award not yet binding NYC - Grounds for refusing recognition and enforcement Art V(2) (a) Subject matter not capable of settlement by arbitration (b) Public policy of enforcing state More favourable treaty or local law • E.g If local law does not necessarily refuse enforcement if award has been set aside at place of arbitration (esp France) • Award may also be enforced as breach of an obligation (to comply with the award) 11/24/2010 Washington Convention awards No grounds for refusing enforcement (except state immunity) The Enforcement of foreign awards in Vietnam • Application to the Ministry of Justice of Vietnam • • • • (MOJ); MOJ delivers the file to the Competent Court; The competent court enroll the file and set up a council of three judges; The council may decide to recognise or refuse foreign awards The State Enforcement Agency enforces recognised awards Execution • Award to be enforced as if it were a judgment • Garnishee orders (bank accounts/payments) • Attachment and sale • For States, immunity against execution may apply 11/24/2010 The enforcement of arbitration awards in Vietnam • Arbitration award must be marked as “For Implementing" • Time Limit : years • Application filed with provincial enforcement agency • Head of the enforcement agency issues a decision • Notify to enforcement debtor • Enforcement creditor is under obligation to investigate the financial capacity of the debtor • The enforcement Public Policy and Enforcement of Arbitral Awards • Issues • Whose public policy? - domestic? - international? • What is public policy? - substantive - procedural Thank you for your kind attention! Dzungsrt & Associates Unit 901, HAREC Building No 4A Lang Ha Str, Ba Đinh Dist, Ha Noi city Tel (84-4) 3772 6970 / Fax (84-4) 3772 6971 Email dzung.nguyen@dzungsrt.com Web www.dzungsrt.com Pacific International Arbitration Center– PIAC No 11A Phan Ke Binh str, District 1, Ho Chi Minh City Tel (84-8) 3911 8048/ Fax (84-8) 3911 8049 Email dzung.nguyen@piac.com.vn Web www.piac.com.vn – www.piac.vn ... terminating the arbitration proceedings Types of Awards I • Final • Partial • Interim • Award on agreed terms • Default award • Additional award Making the Award - Time Limits • Rarely set in laws -... Arbitration awards and decisions under Law on commercial arbitration in 2010 Arbitral decision means a decision of the arbitration tribunal during the dispute resolution process 10 Arbitral award means... 11/24/2010 NYC - “foreign” award • Articles I and III • “Foreign” and “non-domestic” award i.e awards made in the territory of another (contracting) state • Alternatively awards which are not deemed