International Commercial Arbitration Nguyen Manh Dzung, MCIArb Managing Partner - Dzungsrt & Associates Vice President - Pacific International Arbitration Center (PIAC) Hà N i - 28/10/2009 www.piac.com.vn 1 Privacy and Confidentiality Universally private: (Art 38.3 of Ordinance on commercial arbitration 2003) 1.1 fact of arbitration – secret 1.2 facts in arbitration – secret 1.3 hearings of arbitration – secret 1.4 exclude inappropriate persons 1.5 privacy undertakings Arbitrators and secrecy www.piac.com.vn Privacy and Confidentiality Parties and secrecy Witnesses and secrecy Professional representatives and secrecy Confidentiality www.piac.com.vn Legal Representation • Vietnam Article 39- Attendance of dispute-settling meetings “The involved parties may directly attend or authorize their representatives to attend dispute-settling meetings They may invite witnesses and lawyers to protect their rights and legitimate interests” • Liberal (modern) approach Uncitral Rules (Article 4) – ICC Rules (Article 21.4) • Changes in Malaysia, Singapore and Japan www.piac.com.vn Costs • Arbitration Costs – arbitrators' fees, expenses connected with the hearings (eg hiring venue, translators' fees), fees and expenses of any experts appointed by the tribunal and the administrative expenses of the arbitration institution, if the arbitration is an institutional one • Legal Costs – cost for legal representation in the arbitral proceedings as well as the expenses of the legal teams for preparing the case and advising the parties • Security for Costs (Article 22 of the Ordinance on commercial arbitration in 2003) www.piac.com.vn Place of Conduct Independent of seat Inspections Collection of evidence Meetings Hearings www.piac.com.vn Place of Conduct “Notwithstanding the provisions of paragraph (1) of this Article, the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of goods, other property or documents.” (Art 20(2) UNCITRAL Model Law Article 23 of the Ordinance?) www.piac.com.vn Meetings Distinguish: 1.1 meetings and hearings 1.2 meetings between: * arbitrators interse arbitrators and witnesses arbitrators and parties First Meeting on Directions Subsequent procedural meetings www.piac.com.vn Hearings Presentation of: 1.1 evidence 1.2 arguments: facts and law Advance notice of hearings: 2.1 New York Convention 2.2 UNCITRAL Model Law 2.3 Ordinance on Commercial Arbitration 2003 (Art.38.2 30 days notice in advance) www.piac.com.vn Hearings “Recognition and enforcement of the Award may be refused….(b)…[if] the party against whom the Award is invoked was not given proper notice of…the arbitration proceedings or was otherwise unable to present his case.” (Art V:1(b) New York Convention 1958) www.piac.com.vn 10 Hearings “The parties shall be given sufficient notice of any hearings and of any meeting of the arbitral tribunal for the purposes of inspection of goods, other property or documents.” (Art 24(2) UNICTRAL Model Law 1985) www.piac.com.vn 11 Hearings “The tribunal shall- (a) act fairly as between the parties, giving each party a reasonable opportunity of putting his case and dealing with that of his opponent, and (b) adopt procedures suitable to the circumstances of the particular case…so as to provide a fair means for the resolution of the matters falling to be determined.” (s 33 English Arbitration Act 1996) www.piac.com.vn 12 Hearings “Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted on the basis of documents and other materials.” (Art 24(1) UNCITRAL Model Law) www.piac.com.vn 13 Hearings Article 40.2 of the Ordinance on Commercial Arbitration in 2003 “2.The Arbitration Tribunals may base themselves on the dossiers to settle disputes without the presence of the involved parties if it is so requested by the involved parties.” www.piac.com.vn 14 Voting Sole arbitrator – sole decision-making power Two arbitrators – risk of split decision Two arbitrators and: 3.1 chairman 3.2 umpire Party autonomy With chairman – “all or a majority” (Article 42 of the Ordinance) With umpire – failure of arbitrators to agree, umpire replaces the arbitral tribunal (s 21 of EAA) Absence of chairman or umpire – “all or a majority” (s 22 of EAA) www.piac.com.vn 15 Evidence - Main Characteristics • Determination of disputed issues of fact and disputed issues of opinion • Foreign Law? • Multiplicity of sources and lack of uniformity • Common v civil law procedures • Allocation of tasks between courts and tribunals www.piac.com.vn 16 General Principles Evidence • Party autonomy • Applicable law issues – Are all issues covered by the “lex arbitri”? • Evidentiary means and burden of proof • Methods of presenting evidence • Probative value www.piac.com.vn 17 Evidentiary means • • • • • Documents Witnesses Expert evidence Site or subject matter inspections Hearings www.piac.com.vn 18 Expert Evidence -Tribunal appointed • Party appointed • Opinion experts – Quality – Damages • Law experts www.piac.com.vn 19 Exclusion of evidence • • • • • Lack of relevance privilege Commercial or technical confidentiality political sensitivity compelling consideration of fairness or equality • Article IBA Rules www.piac.com.vn 20 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 www.piac.com.vn 21 Types of Awards • • • • • • Final ! Partial ? Interim ? Award on agreed terms ? Default award? Additional award? www.piac.com.vn 22 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 www.piac.com.vn 23 Thank you for your attention ! Dzungsrt & Associates Suite 901, HAREC building, 4A Lang H str, Ba ðình Dist, Ha Noi Tel (4) 3772 6970 / Fax (4) 3772 6971 Email dzung.nguyen@dzungsrt.com Web www.dzungsrt.com Pacific International Arbitration Center – PIAC 11A, Phan Ke Binh Str, Dist 1, Ho Chi Minh City Tel (8) 3911 8048/ Fax (8) 3911 8049 Email dzung.nguyen@piac.com.vn Web www.piac.com.vn – www.piac.vn www.piac.com.vn 24 ... the arbitration is an institutional one • Legal Costs – cost for legal representation in the arbitral proceedings as well as the expenses of the legal teams for preparing the case and advising... agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for oral argument, or whether the proceedings shall be conducted... 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