JUDICIAL MANUAL ON ARBITRATION AND MEDIATION Vietnam Supreme People’s Court FOREWORD The recognition and enforcement of foreign arbitral awards before 2015 have made significant achievements to protect legitimate rights and interests of award creditors However, due to the lack of consistent and uniform understanding of domestic legal regulations and New York Convention 1958, the procedures for recognition and enforcement of foreign arbitral awards have not been consistent at Courts to gain absolute trust of investors With the Civil Procedural Code promulgated in 2015, various former law issues have been overcome and the consistency between Vietnamese legislative and regulatory framework and regulations of New York Convention 1958 which Vietnam officially joined in 1995 has been ensured The roles of the courts in promoting Alternative Dispute Resolution (ADR) measures were more clearly provided for in the new Code, covering arbitration and mediation It was provided in more details in the Code about the Court’s support of arbitration proceedings during the arbitration process and the Court’s recognition of out-of-Court mediated settlement agreements so that such agreements can be enforceable as Court judgments or decisions The Manual has been jointly developed by international and national experts within the scope of operation between the Supreme People’s Court and International Finance Corporation (IFC) to provide reference information for Judges and to ensure consistency in the application of the law to resolve requests for recognition and enforcement of foreign arbitral awards, for setting aside arbitral awards, for the support of arbitration operations, and for recognition of mediated settlement agreements, etc when applying new regulations in the Civil Procedural Code 2015 The Manual is the result of the cooperation of international experts with rich experience in enforcing New York Convention and national experts with abundant experience in resolving arbitration-related civil matters to ensure that information has been looked at from different perspectives and to assist readers to have a more complete view of relevant legal regulations The Supreme People’s Court would like to express our sincere thanks to International Finance Corporation for their active technical support for this engagement; and to IFC experts and working team, Judges, and Judicial staff who have spent a lot of efforts and dedication in the drafting and completing of this Manual We hope that this Manual will serve as a practical desk guide for the Judges to better understand the legal regulations and properly adopt them to efficiently resolve the arbitration and mediation-related matters within jurisdiction of the People’s Courts Nguyen Thuy Hien Deputy Chief Judge Vietnam Supreme People’s Court CONTRIBUTING AUTHORS I/ VIETNAM SUPPREME PEOPLE’S COURT Nguyễn Thúy Hiền, Deputy Chief Judge, Vietnam Supreme People’s Court (SPC), Head of the Drafting Committee Nguyễn Trí Tuệ, Deputy Chief Judge, SPC, Deputy Head of the Drafting Committee Nguyễn Văn Tiến, Judge, SPC Phan Gia Quí, Former Chief Judge, Hochiminh City Commercial Court Lê Tự, Judge, Higher Court in Da Nang Nguyễn Thanh Mận, Deputy Director, Court Academy Nguyễn Đình Tiến, Deputy Chief Judge, Hanoi Commercial Court Chu Trung Dũng, Deputy Director General, International Corporation Department, SPC Bùi Thị Dung Huyền, Deputy Director General, Cassation Department III, SPC 10 Trần Ngọc Thành, Manager, General Affairs, International Corporation Department, SPC 11 Tạ Đình Tuyên, Assistant to Deputy Chief Judge, SPC II/ IFC Nina Mocheva, Senior Financial Sector Specialist, Editor Phạm Liên Anh, Senior Private Sector Development Specialist Jane Willems, Associate Professor of Law, University of International Business & Economics, School of Law, Beijing, IFC’s Senior Consultant, Editor Nguyễn Mạnh Dzũng, IFC’s Senior National Consultant, Editor Phạm Thị Thanh Huyền, Financial Sector Specialist TABLE OF CONTENTS LIST OF ABBREVIATIONS INTRODUCTION PURPOSE OF THE MANUAL OBJECTIVE OF THE MANUAL CHAPTER I 11 LEGAL FRAMEWORK GOVERNING ARBITRATION AND MEDIATION 11 1.1 DOMESTIC LEGAL FRAMEWORK AND SOURCES OF LAW APPLICABLE TO ARBITRATION 11 1.2 CONFLICT OF LAWS AND INTERNATIONAL ARBITRATION 11 1.3 INTERNATIONAL INSTRUMENTS 12 1.3.1 THE LEGAL FRAMEWORK FOR THE ENFORCEMENT OF NEW YORK CONVENTION AWARDS 12 1.3.2 THE LEGAL FRAMEWORK APPLICABLE TO THE RECOGNITION AND ENFORCEMENT OF NON-NYC AWARDS 14 1.4 DOMESTIC LEGAL FRAMEWORK AND SOURCES OF LAW APPLICABLE TO MEDIATION 14 CHAPTER II 15 BASIC CONCEPTS 15 2.1 ARBITRATION AND OTHER FORMS OF ADR 15 2.2 DOMESTIC AND FOREIGN COMMERCIAL ARBITRATION 16 2.3 INTERNATIONAL INVESTMENT ARBITRATION 18 2.4 INSTITUTIONAL AND AD-HOC ARBITRATION 18 2.5 OVERVIEW OF THE ARBITRATION PROCESS 19 2.5.1 KEY CHARACTERISTICS OF THE ARBITRATION AGREEMENT 19 2.5.2 APPLICABLE LAW TO THE ARBITRATION AGREEMENT 19 2.5.3 EFFECT OF THE ARBITRATION AGREEMENT: THE ARBITRATION AGREEMENT AND THE COURTS 20 2.5.4 ARBITRATION PROCEEDINGS 20 2.5.5 ARBITRAL AWARDS 21 2.6 OVERVIEW OF THE MEDIATION PROCESS 22 2.6.1 KEY CHARACTERISTICS OF THE MEDIATION AGREEMENT 22 2.6.2 MEDIATION PROCEEDINGS 22 2.6.3 MEDIATED SETTLEMENT AGREEMENTS 23 CHAPTER III 25 ROLE OF VIETNAMESE COURTS IN DOMESTIC COMMERCIAL ARBITRATION AND FOREIGN COMMERCIAL ARBITRATION SEATED IN VIETNAM 25 3.1 COURTS’ COMPETENCE OVER ARBITRATION OPERATIONS 25 3.1.1 DETERMINATION OF JURISDICTION BETWEEN COURT AND COMMERCIAL ARBITRATION 28 3.1.2 DETERMINATION OF COURT WITH JURISDICTION OVER ARBITRATION ACTIVITY 31 3.2 THE PREVIOUS TITLE OF “BEFORE ARBITRATION PROCEEDINGS” IS NOT CORRECT BECAUSE THE CONTENTS BELOW REFLECTS THE FACT THAT ARBITRATION PROCEEDINGS HAS STARTED THUS, THE TITLE SHOULD BE “CONSIDERATION OF THE ARBITRAL TRIBUNAL’S COMPETENCE” 34 3.2.1 VALIDITY OF AN ARBITRATION AGREEMENT 34 3.2.2 APPOINTMENT AND REPLACEMENT OF AN AD-HOC ARBITRATOR 41 3.2.3 REVIEW BY THE COURT OF ARBITRAL TRIBUNAL’S DECISION THAT AN ARBITRATION AGREEMENT EXISTS, IS VOID OR IS INCAPABLE OF BEING PERFORMED OR THAT THE DISPUTE IS NOT ARBITRABLE 44 3.3 COURT SUPPORT OF ARBITRATION PROCEEDINGS 45 3.3.1 COURT’S ASSISTANCE IN THE COLLECTION OF EVIDENCE 45 3.3.2 COURT ASSISTANCE IN THE SUMMON OF WITNESSES 46 3.3.3 COURT-ORDERED INTERIM MEASURES 47 3.4 REGISTRATION AND ANNULMENT OF ARBITRAL AWARDS 54 3.4.1 REGISTRATION OF AD-HOC ARBITRAL AWARDS 54 3.4.2 ANNULMENT OF ARBITRAL AWARDS 56 CHAPTER IV 69 RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 69 4.1 WHAT IS RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 69 4.1.1 DEFINING “RECOGNITION AND ENFORCEMENT” 69 4.1.2 DEFINING “ARBITRAL AWARD” 69 4.1.3 DEFINING A “FOREIGN” ARBITRAL AWARD 70 4.2 PROCEDURE FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 71 4.2.1 APPLICATION FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS 71 4.2.2 TREATMENT OF THE APPLICATION 73 4.3 COURT DECISION ON THE ENFORCEMENT OF FOREIGN AWARDS 77 4.3.1 ENFORCEMENT OF FOREIGN AWARDS: THE INTERPRETATION OF THE NYC 77 4.3.2 ANALYSIS OF THE SPECIFIC GROUNDS FOR NON-ENFORCEMENT OF FOREIGN AWARDS AVAILABLE TO THE PARTY RESISTING ENFORCEMENT (ART 459(1) CPC; ART V(1) NYC) 79 4.3.3 GROUNDS AVAILABLE TO THE COURT TO REFUSE THE ENFORCEMENT (ART V(2) NYC) 90 4.3.4 SERVICE OF THE COURT DECISION ON THE ENFORCEMENT OF FOREIGN AWARDS 93 4.4 APPEAL AGAINST THE COURT DECISION ON THE ENFORCEMENT OF FOREIGN AWARDS 94 4.4.1 PREPARATION FOR CONSIDERING THE APPEAL 94 4.5 CASSATION OR REOPENING PROCEDURES 97 CHAPTER V 98 RECOGNITION OF SUCCESSFUL OUT-OF-COURT MEDIATION RESULTS IN COMMERCE 98 GLOSSARY 103 LIST OF APPENDIX 104 ... COMMERCIAL ARBITRATION AND FOREIGN COMMERCIAL ARBITRATION SEATED IN VIETNAM 25 3.1 COURTS’ COMPETENCE OVER ARBITRATION OPERATIONS 25 3.1.1 DETERMINATION OF JURISDICTION BETWEEN COURT AND COMMERCIAL ARBITRATION. .. OF THE ARBITRATION AGREEMENT 19 2.5.2 APPLICABLE LAW TO THE ARBITRATION AGREEMENT 19 2.5.3 EFFECT OF THE ARBITRATION AGREEMENT: THE ARBITRATION AGREEMENT AND THE COURTS 20 2.5.4 ARBITRATION PROCEEDINGS... ADR 15 2.2 DOMESTIC AND FOREIGN COMMERCIAL ARBITRATION 16 2.3 INTERNATIONAL INVESTMENT ARBITRATION 18 2.4 INSTITUTIONAL AND AD-HOC ARBITRATION 18 2.5 OVERVIEW OF THE ARBITRATION PROCESS 19 2.5.1