HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW *** NGUYỄN PHẠM MỸ NGỌC STUDENT ID 1853801013128 DISPUTE RESOLUTION BY ARBITRATION IN ENGLAND EXPERIENCE FOR VIETNAM BACHELOR THESIS Sch[.]
HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -*** - NGUYỄN PHẠM MỸ NGỌC STUDENT ID: 1853801013128 DISPUTE RESOLUTION BY ARBITRATION IN ENGLAND EXPERIENCE FOR VIETNAM BACHELOR THESIS School year: 2018 - 2022 Supervisor: Ph.D Phan Hoài Nam Ho Chi Minh City – Year 2022 HO CHI MINH CITY UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -*** - NGUYỄN PHẠM MỸ NGỌC STUDENT ID: 1853801013128 DISPUTE RESOLUTION BY ARBITRATION IN ENGLAND EXPERIENCE FOR VIETNAM BACHELOR THESIS School year: 2018 - 2022 Supervisor: Ph.D Phan Hoài Nam Ho Chi Minh City – Year 2022 DECLARATION I declare that this thesis is the result of my research, which is implemented under the supervision of Ph.D Phan Hoai Nam, ensures honesty, and complies with rules and regarding quotation of the note of references Therefore, I hereby take full responsibility for this declaration LIST OF ABBREVIATIONS ADR Alternative Dispute Resolution LCIA London Court Of International Arbitration New York Convention The 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) UNCITRAL United Nations Commission on International Commercial Law VIAC Vietnam International Arbitration Center WTO World Trade Organization (WTO) TABLE OF CONTENTS INTRODUCTION Problem statement Literature review: Purpose of the study 10 Objectives and Scope of the Study 12 4.1 Objectives of the study 12 4.2 Scope of the study 12 Research methodologies 14 Thesis structure 15 CHAPTER 01: OVERVIEW OF ARBITRATION 16 AND DISPUTE RESOLUTION BY ARBITRATION UNDER ENGLISH LAW 16 1.1 Theoretical issues relating to dispute resolution by arbitration 16 1.1.1 Definition of arbitration 16 1.1.2 Characteristics of dispute resolution by commercial arbitration 20 1.1.3 Types of arbitration 29 1.1.4 The role of arbitration Error! Bookmark not defined 1.2 Dispute resolution by arbitration under English law 1.2.1 The history background of Arbitration Act in England 1.2.2 Regulations on arbitration agreement 36 36 39 1.2.3 Regulations on arbitral proceeding 46 1.2.4 Regulations on arbitral award 49 1.3 The London Court of International Arbitration (LCIA) CONCLUSION CHAPTER 01 53 55 CHAPTER 02 PRACTICAL APPLICATION OF LAW ON ARBITRATION IN ENGLAND AND RECOMMENDATIONS FOR VIETNAM 57 2.1 Practical application of law on arbitration in England governing arbitration agreements and recommendations for Vietnam 57 2.1.1 Caselaw: Heifer International Inc v Helge Christiansen & Ors 57 2.1.2 Experience from England and recommendations for Vietnam 60 2.2 Practical application of law on arbitration in England governing arbitral proceedings and recommendations for Vietnam 67 2.2.1 Case Law: Atlas Power v National Transmission 67 2.2.2 Experience from England and recommendations for Vietnam 70 2.3 Practical application of law on arbitration in England governing arbitral awards and recommendations for Vietnam 76 2.3.1 Caselaw: Westacre Investments INc v Jugoimport SPDR Holding Co Ltd 76 2.3.2 Experience from England and recommendations for Vietnam 78 CONCLUSION CHAPTER 87 THESIS CONCLUSION 88 INTRODUCTION Problem statement Arbitration was practiced during Marco Polo’s time during the 1200 as well as amongst the Phoenician and Greek traders during the third millennium B.C around 300 BC.1 In the trend of globalization and economic integration, the wave of dispute resolution by arbitration in developed and developing countries is rising rapidly In multinational deals, arbitration continues to be the primary dispute resolution method In 2019, 89% of cases were resolved in London Statistics from the London Court of International Arbitration (LCIA) reflect the arbitration activity in London.he number of arbitrations submitted to LCIA in 2019 hit a record high (406) LCIA has not yet released the 2020 annual case report, but the report stated that there has been an increase in new cases in the first quarter of 2020 It is predicted in the media-the prolonged COVID19 crisis “will undoubtedly lead to more cases”.2 Due to restrictions on travel and face-to-face meetings, a major impact of the COVID19 pandemic is the shift towards virtual audiences London is not only home to one of the oldest and leading arbitral institutions, the London Court of International Arbitration (LCIA), and the prominent London Maritime Arbitrators Association (LMAA), it was also found to be the preferred seat in the 2021 Melisa Oleschuk, “The history of arbitration in the United Kingdom, the United States and its evolution into an international mechanism”, May 16 2020, The History of arbitration in the United Kingdom, the United States and its evolution into an international mechanism (linkedin.com) (access 27/6/2020) Muskaan Rawat, “Recent trends in commercial arbitration in the UK”, 2021, Recent trends in commercial arbitration in the UK | VIA Mediation Centre (access 27/6/2022) International Arbitration Survey3 where 54% of respondents chose London as their preferred seat Whilst this varied by region, London was the top choice for respondents from Africa (69%), Europe (76%), Middle East (78%) and North America (66%).4 Commercial conflicts are growing more and more often and have a very complex nature due to the fervor and competitiveness of the industry Due to the need to respect the right to choose one's own method of dispute resolution, the legislation governing commercial dispute settlement must be created to suit these needs Respect the parties' agreements, resolve disputes promptly, cheaply, and efficiently, and make sure the judgments and decisions of the conflict settlement agency are followed In Vietnam, the economic arbitration system was established in the context of a centralized, bureaucratic and subsidized economy This system is set up from the central to the district level and operates almost like a court trial Until the 1990s, over nearly 30 years of operation, economic arbitration had revealed its shortcomings and proved ineffective and unsuitable for a market-oriented economy as a result of the policy reform of our State in the 1990s.5 The commercial arbitration system has been developed as a socio-professional organization since Decree No 204-TTg dated April 28, 1993 on the Queen Mary University, “2021 International Arbitration Survey: Adapting Arbitration to a Changing World”, 2021, https://arbitration.qmul.ac.uk/research/2021-international-arbitration-survey/ (access 27/6/2022) Fiona Cain Charlotte Mullis, “Arbitration Clauses: 10 reasons why you should consider English Law and a London-seated Arbitration for Dispute Resolution”, April 01 2020, https://www.haynesboone.com/news/alerts/arbitration-clauses-10-reasons-to-consider-english-law-for-disputeresolution, (access 27/6/2022) Dương trọng hậu, “Những chặng đường phát triển trọng tài thương mại Việt Nam” (The development stages of commercial arbitration in Vietnam), Số chuyên đề Pháp luật Trọng tài thương mại, Tạp chí Dân chủ Pháp luật, Bộ Tư pháp organization of the Vietnam International Arbitration Center Ordinance No 08/2003/PL-UBTVQH of February 25,2 2003, created a unified legal basis for arbitration institutions to operate on the basis of the two Decrees above In order to serve Vietnam's extensive international integration, overcome the limitations and shortcomings of the Ordinance on Commercial Arbitration 2003, Law on Commercial Arbitration 2010 was approved by the 12th National Assembly, 7th session dated June 17, 2010, replacing the Ordinance on Arbitration 2003, completed a step on institutional organization and commercial arbitration activities in Vietnam Law on Commercial Arbitration 2010 was promulgated with many new regulations in line with the Model Law on International Commercial Arbitration of the United Nations Commission on International Commercial Law (UNCITRAL), in line with international practices on arbitration.6 The legal basis for the dispute resolution by arbitration has been promulgated by the State and gradually improved The Government's Decree No 63/2001/ND-CP dated July 28, 2011 detailing and guiding the implementation of a number of articles of the Law on Commercial Arbitration (amended and supplemented by Decree No Decree No 124/2018/ND-CP dated September 19, 2018) and Resolution No 01/2014/NQ-HDTP dated March 20, 2014 of the Judicial Council of the Supreme People's Court guiding the implementation of a number of provisions of the Commercial Arbitration Law In addition, there are provisions of the Civil Procedure Code 2015 on procedures for dealing with business and commercial Đoàn Trung Kiên & Nguyễn Thị Vân Anh, “Giải pháp hoàn thiện pháp luật trọng tài thương mại Việt Nam”(Solutions to perfect the law on commercial arbitration in Vietnam), Tạp chí Nghề luật, 2020, 06/2020, p.7.(The solutions on Vietnamese Law on Commercial Arbitration 2010) matters related to arbitration activities, the Law on Civil Judgment Execution 2008 (amended and supplemented in 2014) provides for the enforcement of arbitral awards In recent years, the number of arbitration centers, the number of arbitrators, and the number of disputes resolved at arbitration have continuously increased That contributes to reducing the court's adjudication load, effectively implementing the Party and State's policy on encouraging the settlement of disputes outside the court in the spirit of Resolution No 49-NQ/TW dated June 2, 2005 of the Politburo on Judicial Reform Strategy to 2020 According to statistics, the whole country has 490 arbitrators and 23 commercial arbitration centers Vietnam International Arbitration Center (VIAC) has 149 arbitrators, accounting for nearly 40% of the total number of arbitrators.The number of dispute cases that the arbitration centers accept to settle has increased by 30% compared to 2011, 2012, specifically by 2017 the arbitration centers have accepted 2,145 cases and issued 1848 arbitral awards, in which the Vietnam International Arbitration Center (VIAC) accepted and settled 226 cases, an average of nearly 60 cases/year.7 In particular, according to the statistics of the Departments of Justice where the arbitration centers are located (Hanoi, Ho Chi Minh City) and the Can Tho Commercial Arbitration Center, in 2018, the arbitration centers accepted 31,831 cases, issued 29/387 judgments.8 VIAC, “Thống kê hoạt động giải tranh chấp năm 2018”(Statistics of dispute resolution activities in 2018), 2018, https://www.viac.vn/thong-ke/thong-ke-hoat-dong-giai-quyet-tranh-chap-nam-2018-s32.html (access 27/06/2022) Bộ Tư Pháp, “Số liệu thống kê tính đến ngày 30/11/2019 theo Phụ lục V Báo cáo hoạt động trọng tài thương mại Bộ Tư pháp” (Statistics as of November 30, 2019 according to Appendix V Report on commercial arbitration activities of the Ministry of Justice), 2020, https://sotuphap.hochiminhcity.gov.vn/trong-tai-thuongmai/-/asset_publisher/lbn2TgQGNGeA/content/hoi-nghi-so-ket-thuc-hien-%C4%91e-an-nang-cao-nang-luc-vahieu-qua-hoat-%C4%91ong-cua-trong-tai-thuong-mai-%C4%91en-nam-2020-tai-thanh-pho-ho-chi-minh-va-boiduong-k?_101_INSTANCE_lbn2TgQGNGeA_enableXemTheoNgay=true (access 27/6/2022) ... economic integration, the wave of dispute resolution by arbitration in developed and developing countries is rising rapidly In multinational deals, arbitration continues to be the primary dispute resolution. .. OVERVIEW OF ARBITRATION 16 AND DISPUTE RESOLUTION BY ARBITRATION UNDER ENGLISH LAW 16 1.1 Theoretical issues relating to dispute resolution by arbitration 16 1.1.1 Definition of arbitration 16... Characteristics of dispute resolution by commercial arbitration 20 1.1.3 Types of arbitration 29 1.1.4 The role of arbitration Error! Bookmark not defined 1.2 Dispute resolution by arbitration under