(Tiểu luận FTU) RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN VIETNAM

FOREIGN TRADE UNIVERSITY FACULTY OF ENGLISH FOR SPECIFIC PURPOSES -*** - RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN VIETNAM Class: TAN432(1-1920).2_LT Lecturer: Phan Kim Thoa (MA.) Group No.10 Members Student ID Nguyễn Thị Thái Bảo 1611120018 Trần Anh Khoa 1711110347 Hoàng Anh Phương 1611110464 Nguyễn Thị Thảo 1615510104 Đào Quỳnh Trang 1711110705 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com Hanoi, December 24th, 2019 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com CONTENT ABSTRACT I Introduction 1.1 What is an arbitral award? 1.2 Recognition and enforcement of foreign arbitral awards 1.3 Referral by a court to arbitration II General principles for the recognition and enforcement of foreign arbitral awards in Vietnam III Procedures for recognition and enforcement in Vietnam of foreign arbitral awards 3.1 Documents 3.2 Procedures for considering petitions for recognition and enforcement in Vietnam of foreign arbitral awards IV The Weak Enforcement of Foreign Awards in Vietnam 10 4.1 An Overview of the Enforcement of Foreign Awards 10 4.2 The Weak Enforcement of Foreign Awards in Vietnam 10 4.3 Grounds for refusal of recognition and enforcement under New York Convention 11 4.4 Grounds for refusal of recognition and enforcement in Vietnam 14 4.5 Cases in Vietnam 14 4.5.1 Energo Novus and Vinatex (1998) 15 4.5.2 Tyco Services Singapore and Leighton Contractors Vietnam (2003) 16 V Actions 16 5.1 Actions of Arbitral awards under Vietnam Law 16 5.2 Some notes for foreign arbitral awards in Vietnam 18 REFERENCES 20 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com ABSTRACT The choice of arbitration as a means of dispute resolution has many benefits for individuals, because of its unique procedural characteristics and time savings However, it also presents downsides amongst which the enforcement of an arbitration decision, especially when the decision has not been issued by an arbitration center of Vietnam In this research paper, we will try to understand how to execute arbitration awards in Vietnam, under various circumstances LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com I Introduction 1.1 What is an arbitral award? Source: US Legal An arbitral award or arbitration award refers to a decision made by an arbitration tribunal in an arbitration proceeding An arbitral award is analogous to a judgment in a court of law An arbitral award can be of a non-monetary nature where the entire claimant's claims fail and no money needs to be paid by either party An arbitration award can be made for payment of a sum of money, declaration upon any matter to be determined in the arbitration proceedings, injunctive relief, specific performance of a contract and for rectification, setting aside or cancellation of a deed or other document Foreign arbitration means an arbitration formed under a foreign law on arbitration and selected as agreed by the parties to settle a dispute outside or within the Vietnamese territory Foreign arbitral award means an award pronounced by a foreign arbitration outside or within the Vietnamese territory which is selected as agreed by the parties to settle their disputes Source: Vietnam Law on Commercial Arbitration 1.2 Recognition and enforcement of foreign arbitral awards  The first action is the recognition and enforcement of foreign arbitral awards, i.e., arbitral awards made in the territory of another (Contracting) State This field of application is defined in Article I The general obligation for the Contracting States to recognize such awards as binding and to enforce them in accordance with their rules of procedure is laid down in Article III A party seeking enforcement of a foreign LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com award needs to supply to the court (a) the arbitral award and (b) the arbitration agreement (Article IV) The party against whom enforcement is sought can object to the enforcement by submitting proof of one of the grounds for refusal of enforcement which are limitatively listed in Article V(1) The court may on its own motion refuse enforcement for reasons of public policy as provided in Article V(2) If the award is subject to an action for setting aside in the country in which, or under the law of which, it is made ("the country of origin"), the foreign court before which enforcement of the award is sought may adjourn its decision on enforcement (Article VI) Finally, if a party seeking enforcement prefers to base its request for enforcement on the court's domestic law on enforcement of foreign awards or bilateral or other multilateral treaties in force in the country where it seeks enforcement, it is allowed to so by virtue of the so-called more-favourable-right provision of Article VII(1) 1.3 Referral by a court to arbitration The second action contemplated by the New York Convention is the referral by a court to arbitration Article II (3) provides that a court of a Contracting State, when seized of a matter in respect of which the parties have made an arbitration agreement, must, at the request of one of the parties, refer them to arbitration (unless the arbitration agreement is invalid) In both actions the arbitration agreement must satisfy the requirements of Article II(1) and (2) which include in particular that the agreement be in writing Source: New York Convention II General principles for the recognition and enforcement of foreign arbitral awards in Vietnam - Provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done at New York, on June 10, 1958 (New York Convention 1958) are applied in almost countries for the recognition and enforcement of foreign arbitral awards After Vietnam’s accession to the Convention, the National Assembly Standing Committee LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com passed the Ordinance on Recognition and Enforcement in Vietnam of Foreign Arbitral Awards at the end of 1995 (the 1995 Ordinance) It took effect on January 1, 1996, and was Vietnam’s first legal document providing procedures regarding the recognition and enforcement in Vietnam of foreign arbitral awards According to that, Vietnam has announced three following reservations: Vietnam will apply the Convention only to recognition and enforcement of awards made in the territory of another contracting State; with regard to awards made in the territory of non-contracting States, Vietnam will apply the Convention only to the extent to which those States grant reciprocal treatment Vietnam will apply the Convention only to differences arising out of legal relationships, whether contractual or not, that are considered commercial under the national law Vietnam declared that interpretation of the Convention before the Vietnamese courts or competent authorities should be made in accordance with the Constitution and the law of Vietnam However, article 21 regulates that: “In cases of international treaties which the Socialist Republic of Vietnam has signed or acceded to provide otherwise, the provisions of such international treaties shall apply.” And until now, in Clause 3, Article of the 2015 Civil Procedure Code regulates that The Civil Procedure Code applies to the settlement of civil cases involving foreign element(s); where the international treaties to which the Socialist Republic of Vietnam is a signatory provide otherwise, the provisions of such international treaties shall apply Under the provisions in Article 424 of the 2015 Civil Procedure Code, Courts shall consider foreign arbitral awards only the following foreign arbitrators’ award shall be considered being recognized and enforced in Vietnam: First, on the basis of international treaties LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com  1 Arbitral award of a foreign country which is a signatory to an International treaty about recognition and enforcement of foreign arbitral award together with Vietnam; Second, based on the principle of reciprocity Foreign arbitral award other than those specified in point an of this clause on the basis of the principle of reciprocity (in cases where Vietnam and such foreign countries have not yet signed agreements or in which neither of them is contracting states to relevant international conventions.)  - Parties in favor of whom foreign arbitral awards are invoked have the right to file petitions with Vietnamese courts requesting the recognition and enforcement in Vietnam of such awards if the individuals against whom the awards are invoked reside or work in Vietnam, or agencies or organizations against which the awards are invoked are headquartered in Vietnam, or the assets related to the enforcement exist in Vietnam at the time of filing petitions - When handling petitions, courts not examine the subject matter and nature of disputes but only examine them in terms which are primarily relevant to the validity of the arbitral agreement and competence of foreign arbitrators and foreign arbitration proceedings Upon consideration, Vietnamese courts will render their decisions on recognition or non-recognition of awards Involved parties will have the right to lodge appeals of such decisions in higher courts for review according to provisions of the Civil Procedure Code - Foreign arbitral awards that have been recognized and permitted by Vietnamese courts for enforcement in Vietnam have a full legal effect like legally effective decisions of Vietnamese courts and are enforced according to civil judgment enforcement procedures - The Vietnamese State guarantees the transfer from Vietnam to foreign countries of cash and other assets for enforcement of foreign arbitral awards which have been recognized by Vietnamese courts for enforcement in Vietnam Such money and asset transfers shall be carried out in compliance with Vietnamese law LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com III Procedures for recognition and enforcement in Vietnam of foreign arbitral awards 3.1 Documents In order to request the recognition and enforcement in Vietnam of foreign arbitral awards, the parties have to prepare serveral necessary documents known as petition dossier which includes: - The petition - Copy of the foreign arbitral award - Copy of discrete arbitration agreement - Other papers and documents Therein, the copies of discrete arbitration agreement are the copies which constitute part of the signed contract and other papers and documents provided for in international treaties to which Vietnam has signed or acceded Copied documents must be legally valid and documents in foreign languages must be translated into Vietnamese and lawfully notarized or authenticated 3.2 Procedures for considering petitions for recognition and enforcement in Vietnam of foreign arbitral awards - Firstly, parties requesting the recognition and enforcement in Vietnam of foreign arbitral awards must begin with the submission of petitions to the Vietnamese Ministry of Justice Within seven days after receiving a petition dossier, the Justice Ministry will forward it to competent courts (courts of provinces or centrally-run cities according to current regulations) where the involved parties reside or work or where related assets exist The competent court is the court of provincial level in which the award debtor resides (if an individual) or has its headquarters (if a company or organization) or the place where the property relating to the enforcement is located LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com - Secondly, within three working days after receiving files from the Justice Ministry, the competent courts must accept the cases for handling and notify individuals, agencies or organizations against whom the enforcement is sought as well as the People’s Procuracy at the same level In this step, the competent courts also notify to award debtor and prosecuting agencies - Thirdly, within two months after accepting the petition (can be extended by another two months) and examining the case file, the court may decide to: i) suspend consideration of the petition in cases of receiving written notice of the Justice Ministry saying that foreign competent authorities are reviewing the foreign arbitral award; or ii) cease consideration of the petition in cases where the petitioner has withdrawn the petition, parties against whom the awards are invoked have voluntarily enforced the awards or have been dissolved or gone bankrupt, foreign arbitral awards have been set aside or suspended by foreign competent authorities, parties against whom the awards are invoked not reside or work or are not headquartered in Vietnam, or the places where assets related to the enforcement in Vietnam exists are unidentifiable; or iii) open a hearing to consider the petition within twenty days after issuing such decision - Fourth, within twenty days from the date of the decision, if the competent court opens a hearing for consideration of a petition, it shall be conducted by a petition consideration panel composed of three judges in the presence of procurators of the same level, the petitioner, and the party against whom the award is invoked or their lawful representatives The panel can issue a decision on recognition and enforcement in Vietnam or non-recognition of the foreign arbitral award by majority The involved parties may lodge appeals against a court decision within fifteen days after the court issues such decision or after they receive such decision if they have not been present at the hearing considering their petition The procuracies of the same level and the 10 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com Supreme People’s Procuracy may protest court decisions within fifteen days or one month respectively - Fifth, The Supreme People’s Court shall review a provincial-level people’s court’s decision which is appealed or protested within one month after receiving the case files In cases where unclear points exist in dossiers and the courts request the involved parties to make explanations, the said time limit shall be extended but must not exceed two months A panel for review of an appealed or protested decision is composed of three judges A hearing for review of an appealed or protested decision shall be conducted The review panel may uphold or partially or entirely amend decisions of provincial-level people’s courts and suspend or stop consideration of appeals or protests The Court will issue a decision on: ● Recognizing and permitting enforcement in Vietnam; or ● Non-recognizing the award of foreign arbitrators Decisions of the Supreme People’s Court are final and take immediate effect IV The Weak Enforcement of Foreign Awards in Vietnam 4.1 An Overview of the Enforcement of Foreign Awards The last few years have witnessed great development of the arbitration legal framework in Vietnam, particularly regarding the enforcement of foreign awards. Only final arbitral awards that were not set aside by the foreign country’s Court of the seat of arbitration are subject to enforcement in Vietnam. The enforcement of such awards must be recognized and approved by the People’s Court of Vietnam Vietnam has, accordingly, engaged in a program of reform of its commercial arbitration system in order to encourage and attract foreign investors and to address traders' interests However, the reputation and history of enforcement of arbitral awards in Vietnam is still a cause of concern to investors and traders alike The practice has shown that Vietnamese courts are unwilling to enforce arbitration awards Moreover, current Vietnamese regulations on enforcement of international arbitral awards suffer from a number of 11 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com shortcomings, such as inconsistent statutory interpretation, unclear definitions, overlapping legislation, shortage of trained personnel, etc 4.2 The Weak Enforcement of Foreign Awards in Vietnam A significant difference between the Vietnamese courts’ enforcement of domestic awards and foreign awards Indeed, Nguyen The Duc Tam and Nguyen Thi Thuy Linh reported in their article disturbing statistics communicated by the Supreme People’s Court It appears that between 2005 and 2014, fifty-two requests were submitted for recognition and enforcement of foreign arbitral awards However, the Court accepted only twentyeight requests or just over half of those that were submitted This issue has also been raised by the Investment and Trade Working Group in a report presented by Mr Fred Burke in 2015 The report highlighted the alarmingly weak enforcement of international arbitration awards in Vietnam It also cited the broad provisions of the Civil Procedure Code (CPC) as one of the main reasons for such weak enforcement Indeed, Article 439, previously Article 370 in the 2015 CPC, sets out the grounds on which a court shall not recognize or enforce a foreign arbitral award, including inconsistency with the “basic principles of the law of the Socialist Republic of Vietnam.” Because Vietnam is a signatory to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, domestic enforcement of foreign arbitral awards is possible.  To enforce a foreign arbitral award in Vietnam, a petition must first be sent to the Ministry of Justice, which will then transfer the petition to a competent court for recognition and enforcement Unfortunately, for parties seeking to enforce foreign arbitral awards in Vietnam, a historical lack of guidance as to what constitutes a “basic principle of Vietnamese law” has left Vietnamese courts with broad discretion to interpret and apply this term in the context of recognizing a foreign arbitral award in Vietnam 4.3 Grounds for refusal of recognition and enforcement under New York Convention 12 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com There are nevertheless eight grounds for resisting the recognition and enforcement of an arbitral award under the New York Convention, which is found in Articles V and VI of the Convention These grounds are summarized below 1.There was no valid arbitration agreement Article V(1)(a) provides that recognition may be refused when:  The parties to the agreement referred to in article II were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made… Examples: The arbitration agreement was forged, one of the signatories of the arbitration agreement lacked the capacity to sign an award 2.There were serious procedural irregularities in the arbitration Under Article V(1)(b) recognition and enforcement of arbitration awards may be refused when: The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case… Article V(1)(d) also provides that recognition and enforcement of arbitration awards may be refused when: The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place… 3.The arbitral tribunal ruled in excess of its jurisdiction.  Under Article V(1)(c) recognition and enforcement of arbitration awards may be refused when: 13 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be recognized and enforced… Examples: The arbitral tribunal ruled on a question that the parties did not ask it, or it granted relief that was not requested by the Parties 4.The arbitral tribunal was biased This ground for refusing the recognition and enforcement of arbitration awards is read into Articles V(1)(b), V(1)(d) and V(2)(b) of the New York Convention Examples: There was no equal treatment of the Parties The arbitral tribunal was clearly partial The arbitral tribunal lacked independence from one of the Parties 5.The arbitration award was not “binding” Recognition and enforcement of arbitration awards may be refused under Article V(1)(e) when “The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.” Examples: As arbitration awards can be appealed before the courts of some countries, the arbitration award might not be binding in such a country An interim award also might be not to be binding 6.The subject matter of the dispute was non-arbitrable.  Recognition and enforcement of arbitration awards may be refused under Article V(2)(a) when “The subject matter of the difference is not capable of settlement by arbitration under the law of that country” 14 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com Examples: Although this depends on the law of arbitration, in certain countries issues of bankruptcy, competition law or consumer claims are not arbitrable, meaning that arbitrators not have the right to rule on them 7.The public policy of the state was violated by the arbitration award Recognition and enforcement of arbitration awards may be refused under Article V(2)(b) when “The recognition or enforcement of the award would be contrary to the public policy of that country.” Examples: An award ruling on a contract to pay for terrorist activities could be refused recognition under public policy 8.The award was annulled at the seat of arbitration Recognition and enforcement of arbitration awards may also be refused under Article VI(2)(b) “If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e) …” 4.4 Grounds for refusal of recognition and enforcement in Vietnam Under Article 68(2) of the Law on Commercial Arbitration, there are five grounds for challenging an arbitral award that are further explained and guided by article 14 of Resolution 01/2014/NQ-HDTP of the Judge Council of the Supreme People’s Court Accordingly, the arbitral award shall be annulled if it falls within one of these following cases: 1.There is no arbitration agreement, or the arbitration agreement is null and void or incapable of being performed; 2.The composition of the arbitral tribunal or the arbitration proceedings was inconsistent with the agreement of the parties or contrary to the Law on Commercial Arbitration; 3.The dispute falls outside the jurisdiction of the arbitral tribunal; 15 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com 4.The evidence supplied by the parties on which the arbitral tribunal relied to issue the award is forged, or an arbitrator receives money, assets or some other material benefits from one of the parties in dispute, which affects the objectivity and impartiality of the arbitral award; 5.The arbitral award is contrary to the fundamental principles of the law of Vietnam 4.5 Cases in Vietnam Some judges have taken the position that a breach of any specific Vietnamese law could be construed as being against the basic principles of Vietnamese law, and have therefore refused to enforce foreign arbitral awards for even minor inconsistencies with sub-law provisions.  4.5.1 Energo Novus and Vinatex (1998) In March 1996, Energo Novus and Vinatex concluded an agreement concerning purchase contract about components of the power system  Pursuant to that agreement, Vinatex had to pay the US $ 70.506 in August, 1993 However, Vinatex had failed to make this payment on time In June 1995, Energo Novus commenced an action against Vinatex in the Internation commerce arbitration court ICAC (Chamber of commerce and Industry of the Russian Federation) Two years later, an award was issued, holding Vinatex liable to pay to Energo Novus US $ 75.151 in outstanding fees, interest, and legal and other costs On 23 November 1997, Energo Novus filed a request to the People’s Court of Hanoi for recognition and enforcement of the award in Vietnam The Court refused to recognize this foreign award because of the following reasons: ● First, Mr Nguyen Ba Noi as its representative in Russia did not have the capacity or was not authorized to conclude the aforementioned contract as well as an arbitration agreement 16 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com ● Secondly, since ICAC did not accept the notarized documents submitted by Vinatex but requested Vinatex to provide the original ones, the court found that “ICAC rendered a decision which violates the fundamental principle of Vietnamese laws rejecting the validity of a document notarized by Vietnamese notary public” The ground for refusal based on “fundamental principles of Vietnamese law” proves to be the biggest barrier for recognition and enforcement of foreign arbitral awards in Vietnam This rule was meant to follow Article V.2(b) of the New York Convention, which allows refusal when the recognition or enforcement of an award would be contrary to the public policy of the country The problem is that there is no clear definition of the basic principles of Vietnamese law 4.5.2 Tyco Services Singapore and Leighton Contractors Vietnam (2003) The Australian arbitral awards resolving disputes arising from a construction contract performed in Vietnam The arbitrator issued two awards in favor of Tyco, who then attempted enforcement in Vietnam While the first instance court granted enforcement, the Court of Appeal reversed this decision ● First, the court found that under Art of the 1989 Ordinance on Economic Contracts of Vietnam, the contract was invalid since Tyco, as a Singaporean company, had not been issued with a foreign construction contractor license by the Vietnamese Ministry of Construction as required by Vietnamese regulations ● The second reason was the contract between Tyco and Leighton expressly provided that Tyco was not subject to Vietnamese tax law The court said that such a provision ‘negatively affected’ the interests of Vietnam by showing failure on the part of Tyco to respect local law The Appellate Court thus decided to refuse the recognition and enforcement of these arbitral awards pursuant to Article 16.2.b of the 1995 Ordinance More recently, courts have increasingly cited specific provisions of primary Vietnamese legislation – most notably the Civil Code and the Commercial Law – when refusing to recognize a foreign arbitral award on the grounds that it is inconsistent with basic principles of Vietnamese 17 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com law.  However, the broad manner in which the Civil Code and Commercial Law are drafted leaves ample room for interpretation by the courts V Actions 5.1 Actions of Arbitral awards under Vienam Law Under the provisions of Clause 10, Article of the Law on Commercial Arbitration 2010, a decision of the arbitral tribunal is considered an arbitral award only when it contains two elements: (1) The decision of the arbitral tribunal resolve the entire content of the dispute; and (2) This decision results in termination of the arbitration proceedings When an arbitral tribunal's decision contains both of these elements, it shall be considered an arbitral award An arbitral award referred to in this article includes a decision recognizing the agreement of the parties of the arbitral tribunal and an arbitral award of the arbitral tribunal The arbitration award has some of the following characteristics - An arbitral award is a decision that resolves the entire dispute and terminates the arbitration proceedings of the arbitral tribunal - The arbitral award is final and binding on the parties As such, the decision of the arbitration takes effect from the date of issue, without appeal or protest This is a characteristic of dispute settlement through Commercial Arbitration Enforcement of arbitral awards is an act of voluntarily executing arbitral awards of disputing parties or acts of competent state agencies compelling the disputing parties to comply with an order and procedures regulated by law The ultimate purpose of the enforcement of an arbitral award is to ensure that the contents of the arbitral award are in fact enforced rather than legal documents or regulatory decisions act as in the operation of an administrative body Upon receiving the arbitral award, the parties agree to enforce the decision, that is, the parties themselves, without the intervention of any competent organization, individual or state agency, voluntarily enforce that judgment In this case, the parties to the dispute find that the judgment is reasonable, in accordance with the wishes of the parties or because they themselves want to maintain a long-term business relationship, or find that the opposition to the judgment is unrealistic, costly time and money, etc so they voluntarily 18 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com enforced arbitration This is what the State encourages the parties to However, not all cases of the parties to the dispute voluntarily implement it At this time the state must use legal tools to enforce the judgment For cases of involuntary implementation, at this time, enforcement measures must be applied This coercion cannot be enforced by the party that is enforced by the Arbitrator or by the Arbitrator itself, but can only be performed by the state authority that is authorized to execute the Civil Judgment Enforcement Body Under the provisions of Article 66, it is possible to understand the conditions for a party to whom an arbitral award is made to request a civil judgment enforcement agency competent to enforce an arbitral award to be: the party that has to enforce an involuntary judgment enforce and not require cancellation of the arbitration award in accordance with the law This provision does not require the arbitration award to be recognized by the Court to be enforced Because of its non-governmental nature, the decisions of the Commercial Arbitrators not have the power to make decisions on their own Therefore, when the State has recognized the existence of commercial arbitration, the state must have institutions to ensure the enforcement of arbitral awards For decisions of statute arbitrators, in cases where the execution time limit has expired and the judgment debtors have not voluntarily executed them, the judgment creditors may file petitions to the competent judgment-executing agencies the right to enforce an arbitration award without going through a court's recognition procedure For a decision of a case arbitration, it must be registered in court before requesting enforcement by the judgment enforcement agency Because, after making a decision, the arbitration council will automatically disband and decide the arbitration held by the disputing parties Furthermore, the case arbitrator may not be an arbitrator of any arbitration center, so the arbitration award is only signed by the arbitrators Therefore, it is necessary to ensure the legality of an arbitral award when seeking the assistance of judgment enforcement agencies Different from a decision of a domestic arbitrator, a judgment of a foreign arbitrator who wants to enforce in Vietnam is required to go through a recognition procedure to be enforced by the judgment enforcement agency in Vietnam (Clause 3, Article 427 of the 2015 Civil Procedure Code) When settling in a foreign arbitration and want to enforce in 19 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com Vietnam, it is necessary to have a basis to ensure the implementation, and the law stipulates that the recognition procedure is reasonable 5.2 Some notes for foreign arbitral awards in Vietnam The broad discretion of Vietnamese courts to decide what constitutes a “basic principle of Vietnamese law” and to use such determination to refuse recognition of a foreign arbitral award leaves parties seeking to enforce such awards in Vietnam in an uncertain position.  To mitigate this uncertainty, parties anticipating a potential need to enforce a foreign arbitral award in Vietnam should consider taking (where practicable) the following actions: Review all contracts, irrespective of governing law, to ensure consistency of contractual terms with basic principles of Vietnamese domestic legislation, particularly those principles set forth in the Civil Code, Commercial Law and Civil Procedure Code; When serving an arbitration notice on a Vietnamese counterparty, care should be taken (to the extent possible) to comply with both contractual and Vietnamese law notice requirements as well as those of the foreign tribunal in order to minimize the risk that such notice will be challenged by a Vietnamese court reviewing the award; and Foreign - awarded parties should also consider alternate or contingency enforcement plans (such as possible bilateral investment treaty claims) if the Vietnamese legal system ultimately proves unable to deliver adequate legal protection to foreign investors 20 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com REFERENCES New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) Decision of the Appellate Court of the Supreme People’s Court of Vietnam in Hanoi Case No 58, Energo-Novus Co (Russia) v Vietnam Textile Corporation (Vinatext) (May 16, 2000) Decision of the Appellate Court of the Supreme People’s Court in Vietnam in Ho Chi Minh City Tyco Services Singapore Pte Ltd v Leighton Contractors (VN) Ltd, Decision No 02/PTDS, (Jan 21, 2003) Law on Commercial Arbitration 2010 Civil Procedure Code, No.24/2004/QH11 (Jun 15, 2004) Civil Procedure Code, No.92/2015/QH13 (Nov 25, 2015) Nguyen The Duc Tam and Nguyen Thi Thuy Linh, (Apr 1, 2016) “Vietnam Case Update: Recognition and Enforcement of Foreign Arbitral Awards (Realogy Group LLC v Minh Viet Investment JSC)” International Arbitration Asia. Database at http://www.internationalarbitrationasia.com/vietnam_recognition_and_enforcement_of_f oreign_arbitral_awards Nguyen Huy Thang, (Jul 4, 2005) “Recognition and enforcement of foreign arbitral awards in Vietnam: Procedures and practical issues” Database at http://vietnamlawmagazine.vn/recognition-and-enforcement-of-foreign-arbitral-awardsin-vietnam-procedures-and-practical-issues-3735.html Adam Moncrieff, (Nov 21, 2013) “Enforcement of foreign arbitral awards in Vietnam” Retrieved from https://www.allenovery.com/en-gb/global/news-and-insights/publications/enforcement-offoreign-arbitral-awards-in-vietnam?fbclid=IwAR06Sn6NIKlrFxDKL0dWk6igfxiXg21vLvEPu-IwoUNHauIwsx0Veziiuk 21 LUAN VAN CHAT LUONG download : add luanvanchat@agmail.com ... recognition and enforcement in Vietnam of foreign arbitral awards IV The Weak Enforcement of Foreign Awards in Vietnam 10 4.1 An Overview of the Enforcement of Foreign Awards 10 4.2 The Weak Enforcement. .. Procedures for recognition and enforcement in Vietnam of foreign arbitral awards 3.1 Documents In order to request the recognition and enforcement in Vietnam of foreign arbitral awards, the parties... II General principles for the recognition and enforcement of foreign arbitral awards in Vietnam - Provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards done