JUDICIAL MANUAL ON ARBITRATION AND MEDIATION, vietnam supreme peoples court

THE SUPREME PEOPLE’S COURT VIETNAM JUDICIAL MANUAL ON ARBITRATION AND MEDIATION THE SUPREME PEOPLE’S COURT VIETNAM JUDICIAL MANUAL ON ARBITRATION AND MEDIATION Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation 324 Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards implementing the Convention was immaterial because procedural laws, such as the Arbitration Act, had immediate effect under Brazilian law.1383 Second, with few exceptions,1384 courts have applied the Convention when an arbitral award had been rendered in a State which had not yet acceded to the Convention For instance, the English House of Lords applied the 1975 Arbitration Act implementing the New York Convention to an arbitral award rendered in Kuwait prior to Kuwait’s accession to the Convention Without referring to article XII, the House of Lords held that the relevant time to assess whether a State was a “contracting state” was the time of enforcement, and not the time the award was made.1385 Similarly, a German court applied the New York Convention to enforce an arbitral award rendered in London one month prior to the United Kingdom’s accession to the Convention The Court held that the Convention, having a procedural character, applies retroactively.1386 Courts have also applied the Convention when an award was rendered before the State in which enforcement is sought had acceded to the Convention In the United States, for instance, the Court of Appeals for the Second Circuit held that the Convention should apply retroactively to an arbitral award rendered in Japan on 18 September 1970, even though the Convention only came into force in the United States on 20 December 1970.1387 10 In the same vein, certain courts have applied the Convention retroactively in accordance with their national legislation implementing the Convention For instance, the Canadian Federal Court applied the Convention with respect to an award rendered one year prior to Canada’s accession pursuant to section 4(2) of the United Nations Foreign Arbitral Awards Convention Act, which provides that the Convention is to apply to “arbitral awards and arbitration agreements whether made before or after the coming into force of this Act”.1388 1383Spie Enertrans S.A v Inepar S.A Industria e Construcoes, Superior Court of Justice, Brazil, October 2007, SEC 831 1384See Société Nationale pour la Recherche, le transport et la Commercialisation des Hydrocarbures (Sonatrach) v Ford, Bacon and Davis Inc., Court of First Instance of Brussels, Belgium, December 1988, XV Y.B Com Arb 370 (1990) See also Murmansk State Steamship Line v Kano Oil Millers Ltd., Supreme Court, Nigeria, 11 December 1974, VII Y.B Com Arb 349 (1982); Commoditex S.A v Alexandria Commercial Co., Court of Justice of Geneva, Switzerland, 12 May 1967, I Y.B Com Arb 199 (1976) 1385Sir Frederic Snow & Partners and Others (United Kingdom) v Minister Public Works of the Government of Kuwait, House of Lords, England and Wales, March 1984, X Y.B Com Arb 508 (1985) 1386German (F.R.) buyer v English seller, Hanseatisches Oberlandesgericht [OLG] Hamburg, Germany, 27 July 1978, IV Y.B Com Arb 266 (1979) See also German party v Austrian party, Oberster Gerichtshof, Austria, 17 November 1965, I Y.B Com Arb 182 (1976) 1387Copal Co Ltd v Fotochrome Inc., District Court, Eastern District of New York, United States of America, June 1974 and Copal Co Ltd v Fotochrome Inc., Court of Appeals, Second Circuit, United States of America, 29 May 1975, I Y.B Com Arb 202 (1976) 1388Compania Maritima Villa Nova S.A v Northern Sales Co., Federal Court of Appeal, Canada, 20 November 1991 Article XIII Any Contracting State may denounce this Convention by a written notification to the Secretary-General of the United Nations Denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General Any State which has made a declaration or notification under article X may, at any time thereafter, by notification to the Secretary-General of the United Nations, declare that this Convention shall cease to extend to the territory concerned one year after the date of the receipt of the notification by the Secretary-General This Convention shall continue to be applicable to arbitral awards in respect of which recognition or enforcement proceedings have been instituted before the denunciation takes effect Travaux préparatoires The travaux préparatoires on article XIII as adopted in 1958 are contained in the following documents: Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and comments by Governments and Organizations: • Report of the Committee on the Enforcement of International Arbitral Awards: E/2704 • Comments by Governments and Organizations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: E/2822; E/2822/Add.1 United Nations Conference on International Commercial Arbitration: • Amendments to the Draft Convention Submitted by Governmental Delegations: E/CONF.26/L.57 325 326 Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards • Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as Provisionally Approved by the Drafting Committee: E/CONF 26/L.61; E/CONF.26/8; E/CONF.26/8/Rev.1 Summary records • Summary Records of the Twentieth and Twenty-fourth Meetings of the United Nations Conference on International Commercial Arbitration: E/CONF.26/SR20; E/CONF.26/SR.24 • Summary Record of the Fourth Meeting of the Committee on the Enforcement of International Arbitral Awards: E/AC.42/SR.4 (Available on the Internet at http:// www.uncitral.org) (For the travaux préparatoires, case law and bibliographical references, see also on the Internet http://www.newyorkconvention1958.org) Analysis A Contracting State may denounce the Convention in accordance with the provisions of article XIII To date, no Contracting State has withdrawn from or denounced the Convention Article XIV A Contracting State shall not be entitled to avail itself of the present Convention against other Contracting States except to the extent that it is itself bound to apply the Convention Travaux préparatoires The travaux préparatoires on article XIV as adopted in 1958 are contained in the following documents: Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and comments by Governments and Organizations: • Report of the Committee on the Enforcement of International Arbitral Awards: E/2704 • Comments by Governments and Organizations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: E/2822; E/2822/Add.1; E/2822/Add.4 United Nations Conference on International Commercial Arbitration: • Amendments to the Draft Convention Submitted by Governmental Delegations: E/CONF.26/4; E/CONF.26/L.56; E/CONF.26/L.57 • Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as Provisionally Approved by the Drafting Committee: E/CONF.26/8; E/CONF.26/8/Rev.1 Summary records: • Summary Records of the Twentieth, Twenty-first and Twenty-fourth Meetings of the United Nations Conference on International Commercial Arbitration: E/CONF.26/SR20; E/CONF.26/SR21; E/CONF.26/SR.24 327 328 Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Available on the Internet at http://www.uncitral.org) (For the travaux préparatoires, case law and bibliographical references, see also on the Internet http://www.newyorkconvention1958.org) Analysis Pursuant to article XIV, a Contracting State may only require another Contracting State to apply the Convention to the extent that it is itself bound by it Article XIV is a general reciprocity clause that applies to obligations between Contracting States under all provisions of the Convention This distinguishes article XIV of the Convention from article I  (3), which contains a specific reciprocity provision that may be invoked by private parties in the context of enforcement proceedings.1389 As reflected in the travaux préparatoires, article XIV was originally drafted in almost identical wording as a second paragraph of the then article X addressing the rights and duties of federal or non-unitary contracting states (now article XI).1390 As drafted at the time, this proposed reciprocity provision did not meet unanimous approval, as some delegations wished to clarify that it would only apply to federal states.1391 It was not until the United Nations Conference on International Commercial Arbitration convened for the preparation and adoption of the Convention that the representative for Norway proposed an amendment for a general reciprocity clause that would stand as a separate article.1392 A majority of the delegates accepted this amendment on the very last day of the Conference Parties opposing enforcement of an arbitration agreement or an arbitral award have rarely invoked article XIV and its reciprocity requirement Based on available 1389 Albert Jan van den Berg, Consolidated Commentary Cases Reported in Volumes XXII (1997) - XXVII (2002), XXVIII Y.B Com Arb 699 (2003), para 914 See also Patricia Nacimiento, Article XIV, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 541, 544 (H Kronke, P Nacimiento et al eds., 2010) 1390 Travaux préparatoires, Report of the Committee on the Enforcement of International Arbitral Awards, E/2704, E/AC.42/4/Rev.1, pp 15-16, and E/2704, E/AC.42/4/Rev.1, Annex, p 1391See, e.g., the comments by Yugoslavia on article X, Travaux préparatoires, Comments by Governments on the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards, E/2822/Add.6, Annex, pp 2-3 1392Travaux préparatoires, Consideration of the draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Item of the Agenda), Norway: proposed amendment to the draft Convention, E.CONF.26/L.28; Travaux préparatoires, United Nations Conference on International Commercial Arbitration, Summary Records of the Twenty-Fourth Summary Meeting, E/CONF.26/SR.24, pp 6-7 Article XIV 329 case law at the time of this Guide, enforcement of an arbitral award has never been denied on the basis of article XIV.1393 One example of an unsuccessful attempt to rely on article XIV’s reciprocity requirement is found in Fertilizer Corporation of India v IDI Management Inc., a decision from the United States District Court for the Southern District of Ohio An arbitral award was rendered in India against a United States corporation, which argued before the Court that it should not be enforced in the United States on grounds that India would not have enforced the award had it been rendered in the United States in its favour, and that therefore, “the reciprocity between India and the United States as required by the Convention [article XIV] was absent”.1394 The contesting party further argued that article XIV requires courts to determine the extent to which India applies the Convention and whether India treats awards rendered in India in favour of Indian parties in a similar manner The Court rejected this argument and enforced the award, finding that the Convention’s reciprocity requirement was satisfied in that case It noted that article XIV gave “states a defensive right to take advantage of another state’s reservations with regard to territorial, federal or other provisions” The Court added that, in any event, it was satisfied that Indian courts were not engaged in a “devious policy to subvert the Convention by denying non-Indians their just awards” In another case, the United States Court of Appeals for the Fifth Circuit emphasized the importance of respecting the reciprocity undertaking in article XIV The Court reasoned that the rights of United States citizens under the Convention in other countries depend on the extent to which the United States “implements the Convention within its own borders”.1395 Leading commentators have confirmed that article XIV does not allow a Contracting State which has not made any reservation, to deny enforcement of an award rendered in another Contracting State which has made reservations Conversely, a State which formulated a reservation under article I  (3) would not be permitted 1393See, e.g., Union of India, and others v Lief Hoegh & Co and others, High Court of Gujarat, India, May 1982, AIR 1983 Guj 34; Audi NSU Auto Union A.G v Overseas Motors, Inc., District Court, Eastern District of Michigan, Southern Division, United States of America, August 1976, II Y.B Com Arb 252 (1977); M.A Industries Inc v Maritime Battery Ltd., New Brunswick Court of Queen’s Bench, Canada, 19 August 1991, XVIII Y.B Com Arb 354 (1993); Odin Shipping Co (Pte) Ltd v Aguas Industriales de Tarragona, Supreme Court, Spain, October 1983, XI Y.B Com Arb 528 (1986) See also with respect to the recognition and enforcement of an arbitration agreement: McDermott International v Lloyds Underwriters of London, Court of Appeals, Fifth Circuit, United States of America, 14 February 1992, 91-841, XVIII Y.B Com Arb 472 (1993); Ken Acosta (United States), et al v Master Maintenance and Construction Inc., et al., Court of Appeals, Fifth Circuit, United States of America, June 2006, 05-30126 1394Fertilizer Corporation of India v IDI Management Inc., District Court, Southern District of Ohio, Western Division, United States of America, June 1981, C-1-79-570 1395Beiser v Weyler, Court of Appeals, Fifth Circuit, United States of America, 19 March 2002, 01-20152 330 Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to invoke the Convention against another Contracting State which had ratified the Convention without making any reservation.1396 1396See Angela Kolbl, Commentary on Article XIV, in New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 10 June 1958—Commentary 529, 531 (R Wolff ed., 2012); Patricia Nacimiento, Article XIV, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 541, 544 (H Kronke, P Nacimiento et al eds., 2010) Article XV The Secretary-General of the United Nations shall notify the States contemplated in article VIII of the following: (a) Signatures and ratifications in accordance with article VIII; (b) Accessions in accordance with article IX; (c) Declarations and notifications under articles I, X and XI; (d) The date upon which this Convention enters into force in accordance with article XII; (e) Denunciations and notifications in accordance with article XIII Travaux préparatoires The travaux préparatoires on article XV as adopted in 1958 are contained in the following documents: Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and comments by Governments and Organizations: • Report of the Committee on the Enforcement of International Arbitral Awards: E/2704 • Comments by Governments and Organizations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: E/2822; E/2822/Add.1 United Nations Conference on International Commercial Arbitration: • Amendments to the Draft Convention Submitted by Governmental Delegations: E/CONF.26/L.57; E/CONF.26/L.61 331 332 Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards • Drafting Committee: E/CONF.26/8; E/CONF.26/8/Rev.1 Summary records: • Summary Records of the Twenty-first and Twenty-fourth Meetings of the United Nations Conference on International Commercial Arbitration: E/CONF.26/SR21; E/CONF.26/SR.24 (Available on the Internet at http:// www.uncitral.org) (For the travaux préparatoires, case law and bibliographical references, see also on the Internet http://www.newyorkconvention1958.org) Analysis Article XV contains a list of notifications to be made by the Secretary-General of the United Nations as depositary for the Convention This article is consistent with the actions to be undertaken by depositaries under international treaties Article XVI This Convention, of which the Chinese, English, French, Russian and Spanish texts shall be equally authentic, shall be deposited in the archives of the United Nations The Secretary-General of the United Nations shall transmit a certified copy of this Convention to the States contemplated in article VIII Travaux préparatoires The travaux préparatoires on article XVI as adopted in 1958 are contained in the following documents: Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards and comments by Governments and Organizations: • Report of the Committee on the Enforcement of International Arbitral Awards: E/2704 • Comments by Governments and Organizations on the Draft Convention on the Recognition and Enforcement of Foreign Arbitral Awards: E/2822; E/2822/Add.1 United Nations Conference on International Commercial Arbitration: • Amendments to the Draft Convention Submitted by Governmental Delegations: E/CONF.26/L.57; E/CONF.26/L.61 • Text of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards as Provisionally Approved by the Drafting Committee: E/CONF.26/8; E/CONF.26/8/Rev.1 333 334 Guide on the Convention on the Recognition and Enforcement of Foreign Arbitral Awards Summary records: Summary Record of the Twenty-first Meeting of the United Nations Conference on International Commercial Arbitration: E/CONF.26/SR21 (Available on the Internet at http://www.uncitral.org) (For the travaux préparatoires, case law and bibliographical references, see also on the Internet http://www.newyorkconvention1958.org) Analysis Article XVI provides that Chinese, English, French, Russian and Spanish—the official languages of the United Nations at the time of the preparation of the Convention—are the authentic languages of the Convention and are to be considered equally authoritative The Convention does not include provision on how to address situations of diverging language versions Although some commentators have identified potential differences between the authentic versions of the Convention,1397 none of the reported cases have discussed the matter of divergent language versions In case an ambiguity would exist in one of the authentic language versions of the Convention, courts could normally apply the rules of interpretation provided in the Vienna Convention on the Law of Treaties of 1969 Pursuant to Articles 31 and 32 of the Vienna Convention, “[a] treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose” and “[r]ecourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31” In Kahn Lucas Lancaster Inc v Lark International Ltd., the United States Court of Appeals for the Second Circuit relied on the versions of the Convention listed in article XVI to assist it in interpreting the meaning of article II (2) In addition to its textual analysis of the English-language version, the Court reviewed article II  (2) in each of the four other languages deemed to be authentic (i.e., Chinese, 1397See, e.g., Dorothee Schramm, Elliott Geisinger et al., Article XVI, in Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention 555, 556 (H Kronke, P Nacimiento et al eds., 2010) Article XVI 335 French, Russian and Spanish).1398 The Court concluded that like the English version, the French, Spanish and Chinese versions of article II (2) suggest that regardless of whether an agreement to arbitrate is found in an arbitration clause in a contract or as a separate arbitration agreement, it must be signed by the parties or contained in an exchange of letters The Court stated that it was “reluctant to allow the seemingly contradictory Russian language version to dictate a different result This is particularly so in light of the stated purposes of the Convention, one of which is to ‘unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries.’ ” The Court’s interpretation of article II  (2) was confirmed by the drafting and legislative history of this provision 1398Kahn Lucas Lancaster Inc v Lark International Ltd., Court of Appeals, Second Circuit, United States of America, 29 July 1999, 97-9436, XXIV Y.B Com Arb 900 (1999) On this issue, see the chapter of the Guide on article II In partnership with: ... Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and. ..THE SUPREME PEOPLE’S COURT VIETNAM JUDICIAL MANUAL ON ARBITRATION AND MEDIATION Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration. .. Mediation 10 Judicial Manual on Arbitration and Mediation Judicial Manual on Arbitration and Mediation 11 Judicial Manual on Arbitration and Mediation 13 14 Judicial Manual on Arbitration and Mediation