The doctrine of compétencecompétence in international commercial arbitration

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: 62 a preliminary matter before considering the merits of the dispute 288 Accordingly, instead of just purely granting an arbitral tribunal the power to rule on its own jurisdiction, it appears that the LCA makes it an obligation for the tribunal to consider its own jurisdiction as a preliminary matter, subject to subsequent expedited court review, which will be final.289 It is unclear whether an arbitral tribunal is allowed to defer its ruling on jurisdiction until which point it renders the arbitral award At first sight, this approach would undoubtedly have the effect of producing a final decision on arbitral jurisdiction at an early stage in the arbitral proceedings, thus considerably limiting the risk of the parties having to waste time and money staying until the end of the arbitral proceedings just to have the arbitrators’ positive ruling on jurisdiction be dismissed at the annulment or recognition and enforcement stage However, such an approach only makes sense when the determination of the jurisdictional issue can be separated from the merits In cases where, in order to arrive at a decision on arbitral jurisdiction, the arbitrators have to also consider the merits of the case,290 it would seem more fitting to allow the arbitral tribunal to defer its ruling on jurisdiction until the arbitral award stage This will also be consistent with the international approach As previously analyzed, in all the Model Law, French, and English jurisdictions, an arbitral tribunal is allowed to consider its own jurisdiction either as a preliminary matter or in the final arbitral award, subject to subsequent review by the court 291 Another point to consider is that the LCA also provides that during the course of arbitral proceedings, parties may also demand the arbitral tribunal’s determination of its own jurisdiction when the tribunal is considered to be exceeding its jurisdiction.292 The arbitral tribunal’s subsequent ruling on jurisdiction shall also be subject to immediate and final judicial review by the competent court.293 However, the LCA does not provide for any time limit for such a challenge against the 288 LCA, Article 43(1) LCA, Article 44 290 For example, when a party contests both the existence of an arbitration clause and the contract which it is contained in 291 See supra Chapter 292 LCA, Article 43(2) 293 LCA, Article 44 289 63 arbitrators’ jurisdiction mid-proceedings A time limit for this particular action is necessary, since any delay in raising a challenge to the arbitrator’s jurisdiction should be deemed as a waiver of the right to object.294 Technically, if a party waits for a considerable period of time to have elapsed before raising a jurisdictional challenge to the arbitral tribunal, that party cannot be considered to be acting in good faith Consequently, without a prescribed time limit, this could very well become a playground for a recalcitrant party to employ delaying tactics by raising an alleged jurisdictional challenge midway through the arbitral proceedings just to stall time and waste arbitral resources, which should in no way be allowed Moving on, Article of the LCA is, to an extent, modeled after Article II(3) of the New York Convention It is titled “Court’s refusal to accept jurisdiction if there is an arbitration agreement” and provides that “where the parties in dispute already have an arbitration agreement but one party initiates court proceedings, the court must decline jurisdiction, unless the arbitration agreement is void or incapable of being performed”.295 Here, the LCA has expressly provided for specific cases where an arbitration agreement can be considered void296 or incapable of being performed.297 Nevertheless, similar to the New York Convention, the LCA does not provide for any guidance as to the appropriate standard of review required to be performed by the court Accordingly, courts are entitled to perform a full review of the arbitration agreement, which could consequently greatly limit the arbitrators’ compétencecompétence Nevertheless, Vietnamese law can be seen to acknowledge the negative effect of the doctrine of compétence-compétence when arbitral proceedings have been started prior to litigation in court In particular, Resolution No.1 providing guidance LCA, Article 13 titled “Waiver of right to object” provides: “In case one party discovers a violation of this Law or of the arbitration agreement but still continues to participate in the arbitral proceedings without raising any objection to such a violation within the time limit prescribed in this Law, such a party shall be considered to have waived its right to object before the Arbitrators or the Court” However the LCA does not provide for a time limit for a party’s right to raise a request asking the arbitral tribunal to determine its own jurisdiction mid-proceedings 295 LCA, Article 296 LCA, Article 18 297 Resolution No.01, Article 294 64 on the implementation of some of the provisions of the LCA does provide for an allocation of competence to consider arbitral jurisdiction between courts and arbitrators through the operation of Article One notable provision in point is point c of the second clause in the article, which essentially provides that once arbitral proceedings have been commenced and a party files for a petition to litigate in court, the court must decline jurisdiction (either by returning the petition or by staying its own proceedings), even when it finds that the dispute at hand is not within the jurisdiction of the arbitral tribunal (an invalid or incapable-of-being-performed arbitration agreement, non-arbitrable subject matter, etc.) This stipulation seems analogous to the French approach where, once an arbitral tribunal is constituted, the courts must decline jurisdiction and refer the parties to arbitration without ever inquiring about the arbitration agreement However, as discussed above, under the Vietnamese approach, when a party initiates court proceedings and a challenge on arbitral jurisdiction is raised before arbitration is commenced, courts are nevertheless allowed to conduct a full review of the arbitration One point of departure from Article II(3) of the New York Convention in Article of the LCA is that it allows a court to decline jurisdiction on its own motion without the need for a request from at least one of the parties to the court proceedings This may not be appropriate in all cases, since if both parties, despite the presence of a valid arbitration agreement, agree to litigate their disputes instead in court, the court should not dismiss the proceedings just because it finds that there is a valid arbitration agreement Essentially, by not raising a timely request to the court to decline jurisdiction and refer the parties to arbitration, the parties can be said to have implicitly agreed to waive their arbitration agreement and instead to proceed to litigation in court Furthermore, in this regard, it has been contended that the rule that a court may not refer the parties to arbitration on its own motion contained in the New York Convention is an international uniform rule which supersedes domestic law 298 Thus, being a New York Convention signatory, when an arbitration agreement falls 298 Van den Berg (1981), supra at fn.10, 138 65 within the scope of the Convention, the provision therein will prevail over the LCA, forbidding a court to stay the proceedings on its own motion even when there is in fact an arbitration agreement.299 Consequently, in order to stay consistent with the New York Convention, as well as to avoid unnecessarily denying the parties of their day in court, courts should only be able to decline jurisdiction when there is a valid arbitration agreement and one of the parties to the proceedings requests it to so within an appropriate time limit.300 Finally, Article 44 of the LCA for an immediate, expedited and final judicial review mechanism for the arbitrators’ decision on jurisdiction rendered in accordance with Article 43.301 In particular, within 05 working days from the date the parties receive a decision on jurisdiction from the arbitral tribunal, the opposing party may lodge a complaint to the competent court to review the arbitrators’ decision 302 Accordingly, a single judge will be appointed within 05 working days from the date such a complaint is received and must produce a final determination as to arbitral jurisdiction within 10 working days from the date of appointment.303 Essentially, the LCA provides for an expedited judicial review of the arbitrators’ decision on their own jurisdiction.304 Additionally, the LCA also acknowledges an arbitral tribunal’s compétence-compétence by providing that while the determination of the complaint is pending in court, the arbitral tribunal may nevertheless continue with the arbitral proceedings.305 However, in practice, it appears an arbitral tribunal most likely would 299 Ibid It is worth noting that previously, Ordinance No.08 also contained a comparable provision to Article of the LCA - Article In Resolution 05/2003/NQ-HĐTP dated 31 July 2003 providing guidance on some of the provisions in Ordinance No.08, there was section 1.2.b which basically provided a time limit for a respondent to raise an objection to the jurisdiction of the court by way of an arbitration agreement If the respondent did not raise an objection within the prescribed time limit, the parties will be considered to have “entered into a new agreement to refer their dispute to court in place of the previously arbitration agreement” It is unclear why this provision was dropped in the new LCA 301 Ibid 302 LCA, Article 44(1) 303 LCA, Article 44(4) Article 10 of Resolution No.1/2014 provides further guidance, stating clearly that the judge will be making a decision on the basis of the challenge submitted, any enclosed evidence and where he finds necessary, the opinion of the arbitral tribunal 304 Le Thanh Hieu, and Ton Nu Thanh Binh, “Compétence-compétence Doctrine in Vietnam – A Comparative Study”, ALSA Academic Journal, 2018, no AJLS 2018/19, 3-15, p.6 (“Hieu, L., & Thanh Binh, T (2018)”) 305 LCA, Article 44(5) 300 66 stay its proceedings to wait for the court’s final determination.306 This is because if the court happens to determine that the arbitral tribunal does not have jurisdiction, the tribunal would have no other choice but to stay its ongoing proceedings 307 Unfortunately, despite having a system in place to allow arbitrators to preserve their jurisdiction and continue with the arbitral proceedings, the practice of the arbitrators inevitably enables a recalcitrant party to employ dilatory tactics to stall the arbitral proceedings and undermine arbitral efficacy 1.1.3 Concluding Remarks Vietnam appears to recognize the doctrine of compétence-compétence, both its the positive and negative effects Nevertheless, there are certain loopholes to the approach adopted in Vietnam with regard to the doctrine In particular: Firstly, the LCA allows an arbitral tribunal to make a decision on its own jurisdiction as a preliminary matter before the hearing on the merits However, it is unclear whether the arbitral tribunal is also allowed to defer its ruling on jurisdiction until it renders a final arbitral award Do note that under the previously analyzed jurisdictions, especially in the Model Law308 and 1996 Act,309 it is expressly provided that an arbitral tribunal may rule on its jurisdiction either as a preliminary matter or in the arbitral award Secondly, the LCA does not provide a time limit for a challenge claiming that the arbitral tribunal is exceeding its jurisdiction mid-way through the arbitral proceedings This is an important consideration because any delay by the parties in raising such a challenge shall amount to a waiver of the right to object Notably, both the Model Law310 and the 1996 Act311 provide for a time limit for any objection raised mid-proceedings that an arbitral tribunal is exceeding its jurisdiction Thirdly, despite positively endorsing the negative effect of the compétence- 306 Hieu, L., & Thanh Binh, T (2018), supra at fn.303, p.8 LCA, Article 44(6) See also, Resolution No.01, Article 10(5)(a) 308 Model Law, Article 16(3) 309 The 1996 Act, section 31(4) 310 Model Law, Article 16(2) 311 The 1996 Act, section 31(2) 307 67 compétence doctrine when arbitral proceedings have been seized before court litigation (similar to the French approach), the LCA seems to allow for considerably more flexibility when court proceedings are started first as then courts can make a full inquiry into the arbitration agreement 1.2 A Proposal for Reform in Vietnam In light of the above findings, a few suggestions shall be advanced in hope of improving the legal framework for ICA in Vietnam Basically, the doctrine of compétence-compétence is an important rule in ICA to ensure that the jurisdiction of an arbitral tribunal can not be easily compromised and a party acting in bad faith will not be given the chance to obstruct the arbitral proceedings The main policy considerations for the doctrine of compétence-compétence are the arbitral efficacy versus fairness considerations Thus, the following suggestions will be made with the underlying aim of striking a better balance between these two considerations, thus enhancing the effectiveness of ICA as a preferred method of ADR in Vietnam First, Article 43 should expressly stipulate that an arbitral tribunal may rule on its own jurisdiction either as a preliminary question or in the final arbitral award As previously discussed, it may not always be possible for jurisdictional challenges to be correctly determined as a preliminary matter before moving on to the merits Hence, an arbitral tribunal should be given the discretion to either render a preliminary decision or incorporate its ruling into the final award on the merits, although a preliminary decision would generally be preferred One more option to consider is to also allow for the parties’ discretion as to whether to let the arbitrators decide on the jurisdictional challenges to their jurisdiction in a preliminary decision or in the final award (similar to the approach taken under English law) Second, it is recommended to have a stipulation concerning the time limit for a claim to be raised in accordance with Article 43(2) of the LCA Parties should not be allowed to interrupt ongoing arbitration proceedings anytime they want to raise a claim against the arbitrators’ jurisdiction For the setting of a time limit on this matter, 68 a similar wording to section 31(2) of the 1996 Act312 may be sufficient to ensure that arbitral proceedings are run more smoothly and parties are less inclined to employ dilatory tactics to disrupt the arbitral proceedings Finally, Article of the LCA should be amended to clarify the different levels of deference given to an arbitral tribunal’s compétence-compétence depending on whether the arbitrators have been seized of the parties’ dispute or not, and to provide expressly for the standard of judicial review needed to be exercised Once an arbitral tribunal is constituted, the Vietnamese approach is similar to the French one: the courts will inevitably have to refuse jurisdiction This way, arbitrators shall have the first say on their jurisdiction, and the courts will be able to subsequently review the arbitrators’ decision on jurisdiction in a final manner This also eliminates the risk of possible concurrent proceedings, which can produce conflicting results Nevertheless, it should additionally be provided that courts can only decline jurisdiction based on a valid arbitration agreement at the request of at least one of the parties to the said agreement within a reasonable time limit (similar to the approach taken under the New York Convention, the Model law, and the 1996 Act) As to the standard of review for when court litigation is initiated first in time, it is suggested that a prima facie review should generally be adopted, and full review should only be allowed in exceptional circumstances In this regard, the English discretionary approach may be taken into consideration.313 CHAPTER CONCLUSION Based on experiences drawn from the previous Chapters, in this final Chapter, the Author has discussed and evaluated the approach to the doctrine of compétencecompétence taken in Vietnam Generally, in accordance with modern ICA practice, Vietnam also recognizes an arbitral tribunal’s power to rule on its own jurisdiction In particular, both the positive and negative effects of the doctrine of compétenceThe 1996 Act, section 31(2) provides: “Any objection during the course of the arbitral proceedings that the arbitral tribunal is exceeding its substantive jurisdiction must be made as soon as possible after the matter alleged to be beyond its jurisdiction is raised” A similar stipulation is also adopted in Article 16(2) of the Model Law 313 More on this point, see BarcelóIII (2017), supra at fn.196, 34 312 69 compétence can be found in the LCA Nevertheless, these provisions are not exactly without flaws Consequently, a few constructive suggestions have been put forward by the Author with the hope of strengthening the pro-arbitration stance, and consequently, the confidence of foreign users in conducting ICA in Vietnam Some of the suggestions can be summarized as follows: First, Article 43 of the LCA should be specified to also allow an arbitral tribunal to defer their ruling on arbitral jurisdiction until the award stage if the circumstances reveal obstacles preventing the tribunal from properly considering jurisdictional challenges as a preliminary matter A degree of discretion for the parties could also be allowed; Second, there should be a specific time limit for a jurisdictional challenge raised in accordance with Article 43(2) of the LCA to prevent a party from intentionally obstructing the arbitral proceedings; Finally, Article of the LCA should be understood to only allow the courts to decline jurisdiction when a party so requested in a timely manner, regardless of the existence of a valid arbitration agreement Furthermore, the standard of judicial review at this stage should also be specified: a prima facie review is, in most cases, recommended 70 THESIS CONCLUSION ICA is an ever-growing method of ADR, and is of special importance in the international scene Thus, an effective legal framework is needed to provide support for ICA and to reinforce users’ confidence in it as the preferred method of international dispute resolution The doctrine of compétence-compétence is one of the fundamental rules of ICA However, it has been shown that this doctrine is subject to a number of variations Whilst the positive effect of the concerned doctrine is widely recognized, its negative effect has been the subject of considerable debate The study in this thesis reveals that except for the New York Convention, the positive effect of the both compétence-compétence is endorsed by all the legal orders analyzed In addition, the New York Convention and the Model Law appear to be inconclusive as to the negative effect of the doctrine Nevertheless, an analysis of the French approach shows that French arbitration law adopts a strict non-interventionist and pro-efficacy stance, providing strong support for the widely-debated negative effect of the doctrine The English approach, on the other hand, seems to be less restrictive and provides more room for discretion This may enhance fairness, although it risks the reliability and predictability of the framework The approach in Vietnam is found to lean more towards the French side of the spectrum Nonetheless, there are, arguably, still some loopholes within the Vietnamese legal framework on the doctrine of compétence-compétence, which could be abused by a recalcitrant party as a means to undermine arbitral jurisdiction and obstruct the arbitral proceedings Thus, a proposal for reform has been made within this thesis with the aim of improving the overall legal framework for ICA in Vietnam At the time of writing, the study on the doctrine of compétence-compétence with the aim of examining the Vietnamese approach as compared to other widely recognized approaches has been relatively scarce Therefore, the Author hopes that this thesis, despite its limited scope and length, provides a good jumping point to more extensive research into this doctrine and the allocation of competence between courts and arbitrators with regard to arbitral jurisdiction in Vietnam in the future 71 BIBLIOGRAPHY A LEGISLATION I INTERNATIONAL/FOREIGN LEGISLATION Geneva Protocol on Arbitration Clauses of 1923 (entered into force on 28 July 1924) Geneva Convention on the Execution of Foreign Arbitral Awards of 1927 (entered into force on 26 September 1927) 1996 English Arbitration Act Convention on the Settlement of Investment Disputes Between States and Nationals of Other States of 1965 (entered into force on 14 October 1966) UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 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 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (entered into force on June 1959) Ordinance No 08/2003/PL-UBTVQH titled the Ordinance on Commercial Arbitration dated 25 February 2003 Draft law on the revision of arbitration law (Arbitration New Regulation Act SchiedsVfG) (“Entwurf 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International Commercial Arbitration, 2012 17 Van den Berg, A., The New York Arbitration Convention of 1958, 1981 C JOURNALS, PRINTED MATERIALS Samuel, A., “Separability of Arbitration Clauses—Some Awkward Questions About The Law On Contracts, Conflict Of Laws And The Administration Of Justice”, Arbitration and Dispute Resolution Law Journal 36, 2000 Bachand F., “Does Article of the Model Law Call for Full or Prima facie Review of the Arbitral Tribunal's Jurisdiction?”, Arbitration International, September 2006, 22(3) Barcelo, J., “Who Decides the Arbitrator's Jurisdiction Separability and Competence Competence in Transnational Perspective” Vanderbilt Journal of Transnational Law, October 2003, 36(4), 1115-1136 Barceló III, J., “Kompetenz-Kompetenz and Its Negative Effect—A Comparative View”, Cornell Legal Studies Research Paper, 2017, No 17-40 74 Brekoulakis, S., “The Negative Effect of Compétence-Compétence: The Verdict has to be Negative”, Queen Mary University of London, School of Law Legal Studies Research Paper, 2009, No 22/2009 Bui Lien, Chapter 15: Arbitration in Vietnam, International Commercial Arbitration in Asia, 2013 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 Gaillard, E., “France adopts New Law on Arbitration”, New York Law Journal, 2011, 245(15) Landolt, Phillip, “The Inconvenience of Principle: Separability and KompetenzKompetenz”, Journal of International Arbitration 30, 2013, no 5: 5511–530 10 Le Thanh Hieu, and Ton Nu Thanh Binh, “Compétence-compétence Doctrine in Vietnam – A Comparative Study”, ALSA Academic Journal, 2018, no AJLS 2018/19, 3-15 11 Modi, Neil “The Rule of Compétence-compétence: A Historical & Comparative Analysis Between English-Indian Law”, Willamette Journal of International Law and Dispute Resolution, 2019, 26(1-2), 75-98 12 Park, W., “The Arbitrator's Jurisdiction to Determine Jurisdiction”, Boston University School of Law Public Law & Legal Theory Paper, 2007, No 17-33 13 Stavros Brekoulakis, “The Effect of an Arbitral Award and Third Parties in International Arbitration: Res Judicata Revisited”, The American Review of International Arbitration, 2005, 16(1) 14 Park, W., “The Arbitrability Dicta in First Options v Kaplan: What Sort of Kompetenz-Kompetenz Has Crossed the Atlantic?”, Arbitration International, June 1996, 12(2) 15 Park, W., “The Arbitrator's Jurisdiction to Determine Jurisdiction”, Boston University School of Law Public Law & Legal Theory Paper Series, 2007 75 16 Park, W., “Arbitration and Accuracy”, Journal of International Dispute Settlement, February 2010, 1(1) 17 Susler, O., The English Approach to Compétence-compétence, Pepperdine Dispute Resolution Law Journal, 2013, 13(3), 427-452 18 Thuy Le Tran, Vietnam: Can an Affective Arbitration System Exist, 20 Loyola of Los Angeles International and Comparative Law Review 361, 1998 D SURVEYS/REPORTS White & Case LLP and Queen Mary School of International Arbitration survey, 2015 International Arbitration Survey: Improvements and Innovations in International Arbitration, https://www.whitecase.com/publications/insight/2021international-arbitration-survey White & Case LLP and Queen Mary School of International Arbitration, 2021 International Arbitration Survey: Adapting arbitration to a changing world, https://arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitr ation_Survey.pdf Report of the Working Group on International Contract Practices on the Work of its Fifth Session (New York, 22 February—4 March 1983) (A/CN.9/233), (1983) Report of the Working Group [on International Contract Practices] on the Work of its Seventh Session (A/CN.9/246, March 1984) DAC Report on the Arbitration Bill In: Sutton, David S J, and Judith Gill, Russell on Arbitration, London, Sweet & Maxwell, 2003., Appendix E CASES Al Naimi v Islamic Press Agency [2000] Ll.LR 522 Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD & Anor [2007] EWHC 665 (Ch) Birse Construction Ltd v St David Ltd [1999] EWHC 253 (TCC) Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46 Fiona Trust & Holding Corporation v Yuri Privalov [2007] EWCA Civ 20 76 First Options of Chicago, Inc v Kaplan, 514 U.S 938 (1995) Fulham Football Club (1987) Ltd v J Sir David Richards and another [2011] EWCA Civ 855 Prima Paint Co v Flood Conklin Manufacturing Corporation 388 US 395, 402 (1967) Premium Nafta Products Ltd (20th Defendant) & Ors v Fili Shipping Company Ltd & Ors [2007] UKHL 40 (17 October 2007) 10 S.A Coppee Lavalin v Ken Ren Fertilisers [1994] All ER 449 F ELECTRONIC DOCUMENTS A look at Vietnam's legal system, The Report: Vietnam 2017, Oxford Business Group, 2017, available at https://oxfordbusinessgroup.com/overview/law-landlook-country%E2%80%99s-legal-system Do Khoi Nguyen, The International Arbitration Review: Vietnam, 2021, available at https://thelawreviews.co.uk/title/the-international-arbitration- review/vietnam#footnote-027 Net Le, Hieu Thanh Le, International Arbitration 2021: Law and Practice in Vietnam, 2021, available at https://practiceguides.chambers.com/practiceguides/international-arbitration-2021/vietnam Summary records of the 306th UNCITRAL https://uncitral.un.org/sites/uncitral.un.org/files/mediadocuments/uncitral/en/306meeting-e.pdf meeting, available at