HO CHI MINH UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW *** NGUYEN VU THUY QUYNH Student ID 1751101030127 THE DOCTRINE OF COMPÉTENCE COMPÉTENCE IN INTERNATIONAL COMMERCIAL ARBITRATION BACHELOR’S TH[.]
HO CHI MINH UNIVERSITY OF LAW FACULTY OF INTERNATIONAL LAW -*** NGUYEN VU THUY QUYNH Student ID: 1751101030127 THE DOCTRINE OF COMPÉTENCECOMPÉTENCE IN INTERNATIONAL COMMERCIAL ARBITRATION BACHELOR’S THESIS School Year: 2017 - 2022 Supervisor: PhD Le Thi Ngoc Ha Ho Chi Minh City – 2022 DECLARATION The Author declares that the present thesis is the result of the Author’s own independent work and research, done under the supervision of PhD Le Thi Ngoc Ha In any parts of the work where sources are used, these sources are listed in the bibliography and are clearly identified as references The Author shall take full responsibility for this declaration TABLE OF CONTENTS INTRODUCTION .1 CHAPTER COMPÉTENCE-COMPÉTENCE IN INTERNATIONAL COMMERCIAL ARBITRATION – ARBITRATORS’ POWER TO RULE ON THEIR OWN JURISDICTION 1.1 International Commercial Arbitration 1.1.1 Definition and A Brief History of “Arbitration” 1.1.2 Definition of “International” 1.1.3 Definition of “Commercial” 1.1.4 Benefits of International Commercial Arbitration 1.2 The Arbitrators’ Power to Rule on Their Own Jurisdiction “Compétence-Compétence” 12 1.2.1 The Jurisdiction of an Arbitral Tribunal and Its Power to Rule on Its Own Jurisdiction 12 1.2.2 Arbitrators’ Power to Rule on Their Own Jurisdiction: The Terminology Issue 16 1.2.3 The Foundation of the Arbitrators’ Compétence-Compétence 19 1.2.4 Variations in the Scope of an Arbitral Tribunal’s Power to Rule on Its Own Jurisdiction 22 1.3 Compétence-compétence and Its Interrelation with the Doctrine of Separability 26 1.3.1 The Doctrine of Separability in International Commercial Arbitration 26 1.3.2 The Interrelation between Compétence-Compétence and Separability 28 CHAPTER CONCLUSION 29 CHAPTER VARIOUS APPROACHES TO THE DOCTRINE OF COMPETENCÉ-COMPETENCÉ IN INTERNATIONAL CONVENTIONS AND DIFFERENT NATIONAL REGIMES .31 1.1 The New York Convention on the Doctrine of CompétenceCompétence 31 1.1.1 Introduction 31 1.1.2 The Doctrine of Compétence-Compétence under the New York Convention 32 1.1.3 1.2 Concluding Remarks 36 The Model Law on the Doctrine of Compétence-Compétence 36 1.2.1 Introduction 36 1.2.2 The Doctrine of Compétence-Compétence under the Model Law 37 1.2.3 Concluding Remarks 42 1.3 French Law on the Doctrine of Compétence-Compétence 42 1.3.1 The Legal Framework for International Commercial Arbitration in France 42 1.3.2 The Doctrine of Compétence-Compétence in France 44 1.3.3 Concluding Remarks 48 1.4 1.4.1 English Law on the Doctrine of Compétence-Compétence 49 The Legal Framework for International Commercial Arbitration in England 49 1.4.2 The Doctrine of Compétence-Compétence in England 51 1.4.3 Concluding Remarks 57 CHAPTER CONCLUSION 57 CHAPTER THE VIETNAMESE APPROACH TO THE DOCTRINE OF COMPÉTENCE-COMPÉTENCE AND A PROPOSAL FOR REFORM .59 1.1 1.1.1 Vietnam on the Doctrine of Compétence-Compétence 59 Regulatory Framework for International Commercial Arbitration in Vietnam 59 1.1.2 The Doctrine of Compétence-Compétence in Vietnam 61 1.1.3 Concluding Remarks 66 1.2 A Proposal for Reform in Vietnam 67 CHAPTER CONCLUSION 68 THESIS CONCLUSION 70 BIBLIOGRAPHY 71 LIST OF ABBREVIATIONS 1923 Geneva Geneva Protocol on Arbitration Clauses of 1923 (entered Protocol into force on 28 July 1924) 1927 Geneva Geneva Convention on the Execution of Foreign Arbitral Convention Awards of 1927 (entered into force on 26 September 1927) 1996 Act 1996 English Arbitration Act ADR Alternative Dispute Resolution Decree 166 Decree No 116/1994/ND-CP on the Organization and Activities of Economic Arbitration dated 05 September, 1994 e.g Exempli gratia, “for example” et al And others et seq Et sequential, “and the following” etc Et cetera European European Convention on International Commercial Convention Arbitration (entered into force on 07 January 1964) fn Footnote i.e Id est, “that is” Ibid Ibidem, “in the same book or passage” ICA International Commercial Arbitration ICSID Convention Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 1965 (entered into force on 14 October 1966) infra Below ISCID International Centre for the Settlement of Investment Disputes LCA Law 54/2010/QH12 titled Law on Commercial Arbitration dated 17 June 2010 Model Law UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 NAL French New Arbitration Law, contained in Decree No 2011-48 of 13 January 2011, Article amending the French Code of Civil Procedure (1981), Book IV, Title I New York Convention on the Recognition and Enforcement of Convention Foreign Arbitral Awards (New York, 1958) (entered into force on June 1959) Ordinance No.08 Ordinance No 08/2003/PL-UBTVQH titled the Ordinance on Commercial Arbitration dated 25 February 2003 p Page Para Paragraph Paras Paras Paragraphs pp Pages supra Above UNCITRAL United Nations Commission on International Trade Law Vice versa The other way around INTRODUCTION The Rationale of the Thesis With the speed of globalization, international commerce is expected to develop at a remarkable rate Naturally, with international commerce comes international commercial disputes Basically, these are disputes that have a commercial nature and involve one or more foreign elements (the different nationalities of the parties, the contract needed to be executed in a foreign country, etc.) However, the resolution of international commercial disputes may not be an easy task, considering how in national court proceedings, the control exercised by a court is limited to national borders only As a result, a more effective alternative to court proceedings needed to emerge, thus the rise of ICA Basically, ICA offers business parties benefits that court litigation otherwise lacks Nevertheless, for ICA to really prosper, it needs to be supported by a strong legal framework, with established rules and regulations designed to promote the efficacy of the arbitral process, as well as the recognition and enforcement of arbitration agreements and arbitral awards One of such rules, and arguably one of the most important, is the so-called doctrine of compétence-compétence This doctrine works by granting arbitrators the power to rule on their own jurisdiction, thus greatly enhancing arbitral efficacy an overall fairness of the arbitral process Nonetheless, despite being one of the most important, this doctrine is also one of the most contentious rules in ICA The doctrine is a recurring topic for discussion in legal scholarship In practice, countries have also taken diverging approaches to this doctrine, which further stirs up the discussion Yet, it appears that few have discussed the application of this doctrine within the legal framework for arbitration in Vietnam Consequently, given the importance of this topic in the context of ICA, the Author finds it necessary for there to be a more in-depth study into the theoretical framework and policy concerns behind the doctrine of compétence-compétence, as well as its varied recognition in prominent international arbitration documents and jurisdictions, in order to properly assess the Vietnamese approach to this “controversial” doctrine The present thesis is made to achieve this very aim Literature Review Based on the Author’s research, there have been a considerable number of comparative studies on the topic of the doctrine of compétence-compétence in ICA Some of the most notable ones are as follows Gaillard, E., and Savage, J., eds., Fouchard Gaillard Goldman on International Commercial Arbitration, Hague: Kluwer Law International, 1999 – This book is an important textbook for the study of ICA Being one of the most fundamental rules of ICA and of arbitration in general, the doctrine of compétence-compétence frequently comes up throughout the book and is particularly discussed at length in Chapter III of the book In particular, the recognition, basis, and meaning of the doctrine of compétence-compétence is thoroughly considered on a comparative basis Born, G., Chapter 6: International Arbitration Agreements and Compétencecompétence, International Commercial Arbitration, Kluwer Law International, 2009 The book itself is also a quintessential for the study of ICA – The book has an entire chapter dedicated to the comprehensive study, at both a theoretical and practical level, of the compétence-compétence doctrine Gaillard, E., and Banifatemi, Y., Negative Effect of Compétence-compétence: The Rule of Priority in Favour of the Arbitrators, Enforcement of Arbitration Agreements and International Arbitral Awards: The New York Convention in Practice, 2008, pp.257-273 – This work touches upon the negative effect of the doctrine of compétence-compétence and the policy considerations behind it In particular, the work refers to “the principle of compétence-compétence” and that such a principle necessarily has a dual function: a positive and a negative Park, W., The Arbitrator's Jurisdiction to Determine Jurisdiction, Boston University School of Law Public Law & Legal Theory Paper No 17-33, 2007 – This paper gives a fascinating perspective on the doctrine of compétence-compétence and its implications on arbitral jurisdiction The provides a thorough introduction into the concept of compétence-compétence – i.e., the arbitrator’s jurisdiction to determine jurisdiction by explaining the limits of the language used, how it can have different meanings and what implications each meaning carries The study on the compétence-compétence doctrine in Vietnam on a comparative level is relatively limited It is rarely the main topic of but rather only forms a part of a broader study on the topic of arbitration The most notable comparative study is one by Le Thanh Hieu, and Ton Nu Thanh Binh, Compétence-compétence Doctrine in Vietnam – A Comparative Study, ALSA Academic Journal 2018, no AJLS 2018/19, 2018, 3-15 This piece is one of the rare works that focuses on the application of the doctrine of compétence-compétence in Vietnam It points out the shortcomings in the Vietnamese approach, provides a brief comparative study of the different approaches to this doctrine in certain jurisdictions, and concludes by advancing several proposals to tackle the problems of the Vietnamese approach Nevertheless, with the content of only 12 pages, this study can hardly be comprehensive Although there have been many comparative studies on the doctrine of compétence-compétence on an international level, the number of studies with a focus on the approach to the doctrine of compétence-compétence in Vietnam is notably scarce Thus, the Author believes that a comparative study in the form of a thesis on the doctrine of compétence-compétence in ICA with a critical assessment on the Vietnamese approach will be valuable to gain insights into how Vietnam conforms to, or negates from, international practice with regard to arbitral jurisdiction in ICA The Aim of the Thesis The ultimate aim of the thesis is to be able to critically evaluate and identify the possible inadequacies in the Vietnamese approach to the doctrine of compétencecompétence in the context of ICA and how it can be improved using the experience drawn from the other approaches discussed in the study In order to achieve this purpose, the thesis performs the following tasks: ... COMPÉTENCE-COMPÉTENCE IN INTERNATIONAL COMMERCIAL ARBITRATION – ARBITRATORS’ POWER TO RULE ON THEIR OWN JURISDICTION In the first Chapter of this thesis, the thesis shall begin by introducing the concept of international. .. jurisdiction in ICA The Aim of the Thesis The ultimate aim of the thesis is to be able to critically evaluate and identify the possible inadequacies in the Vietnamese approach to the doctrine of compétencecompétence. .. shortcomings in the Vietnamese approach on the doctrine of compétence-compétence will be offered Subject-matter and Scope of the Thesis 4.1 Subject-matter of the Thesis The subject matter of the