The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.The impact of public policy on commercial arbitration in Vietnam.
i MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THESIS THE IMPACT OF PUBLIC POLICY ON COMMERCIAL ARBITRATION IN VIETNAM Major: International Economics Specialisation: International Trade Policy and Law Code: 821111 Full name: Cao Hong Tam Supervisor: Dr Ha Cong Anh Bao Hanoi, 2023 i STATEMENT OF ORIGINAL AUTHORSHIP I hereby declare that this master’s thesis was exclusively conducted on my own and that all data indicated in the thesis is clear, accurate, and collected from reliable sources of information In addition, I hereby assure that all of the supports in the process of implementation cited in the master’s thesis have been rightfully specified as sources Author Cao Hong Tam ii ACKNOWLEGEMENTS I would like to express my sincere gratitude to Dr Ha Cong Anh Bao, my supervisor, for his invaluable guidance and expertise throughout this research His insightful feedback and constructive criticism have been instrumental in shaping the direction and quality of this thesis I would also like to thank my mother, whose love, encouragement, and unwavering belief in my abilities have been a constant source of motivation and strength I am indebted to my family and friends for their continuous encouragement Their support has been a constant source of motivation I would like to express my thankfulness to the Foreign Trade University and the Faculty of Graduate Studies for providing a conducive academic environment and resources for my research Lastly, I extend my appreciation to the authors, researchers, and scholars whose works have contributed to the field of international commercial arbitration and public policy Their dedication to research and their insightful contributions have served as inspiration and a valuable resource for this thesis Thank you all for your contributions and support iii TABLE OF CONTENTS STATEMENT OF ORIGINAL AUTHORSHIP i ACKNOWLEGEMENTS ii LIST OF ABBREVIATIONS v ABSTRACT vi SUMMARY OF THESIS RESULTS vii CHAPTER 1: INTRODUCTION 1.1 Research rationale 1.2 Literature review 1.3 Research objectives 1.4 Subject matter and scope of research 1.5 Methodology 1.6 Research disposition CHAPTER 2: THEORETICAL FRAMEWORK 2.1 Overview of commercial arbitration 2.1.1 Definitions…… 2.1.2 Characteristics 10 2.1.3 Arbitral awards, types of arbitral awards, their recognition and enforcement 12 2.2 Overview of public policy 15 2.2.1 Concepts……… 15 2.2.2 Types of public policy 17 2.3 The link between commercial arbitration and public policy 18 CHAPTER 3: IMPACT OF PUBLIC POLICY ON COMMCERCIAL ARBITRATION ON AN INTERNATIONAL LEVEL 21 3.1 Overview of the legal framework in international conventions on the recognition and enforcement of foreign arbitral awards 21 3.1.1 History…………… 21 3.1.2 Public policy under the New York Convention 25 3.2 Impact of public policy on commercial arbitration in the common law system 27 3.2.1 The United States 27 iv 3.2.2 The United Kingdom 30 3.2.3 India……………… 33 3.3 Impact of public policy on commercial arbitration in the civil law system .36 3.3.1 Germany………… 36 3.3.2 France…………… 39 3.4 Evaluation of public policy’s impact on commercial arbitration on an international level……… 42 CHAPTER 4: IMPACT OF PUBLIC POLICY ON COMMERCIAL ARBITRATION IN VIETNAM 45 4.1 Overview of the legal framework of public policy on the recognition and enforcement of foreign arbitral awards in Vietnam 45 4.1.1 History…… 45 4.1.2 Public policy as a refusal ground of the recognition and enforcement of foreign arbitration awards 47 4.2 Practical application of public policy on commercial arbitration in Vietnam 59 4.2.1 Statistics 61 4.2.2 Notable cases 63 4.3 Evaluation of public policy’s impact on commercial arbitration in Vietnam 74 CHAPTER 5: LESSONS AND RECOMMENDATIONS FOR VIETNAM ON COMMERCIAL ARBITRATION WITH PUBLIC POLICY IMPLICATION 78 5.1 Lessons from other countries 78 5.2 Recommendations for Vietnam 82 CONCLUSION 86 LIST OF REFERENCES ix v LIST OF ABBREVIATIONS CPC 2004 : Code No 24/2004/QH11 dated June 15, 2004, of Civil Procedure Code No 92/2015/QH13 dated November 25, 2015, of Civil Procedure International Finance Corporation International Law Association Vietnam’s Law on Commercial Arbitration 2010 Vietnam’s Ministry of Justice Vietnam’s Ordinance No 42-L/CTN dated September 14, 1995, on the Recognition and Enforcement of foreign arbitral awards in Vietnam CPC 2015 : IFC ILA LCA 2010 MOJ Ordinance 1995 : : : : : Ordinance 2003 Resolution No : Vietnam’s Ordinance No 08/2003/PL-UBTVQH dated February 25, 2003, on Commercial Arbitration : Vietnam’s Resolution No 01/2014/NQ-HDTP, dated March 01/2014/NQHDTP SPC The Database 20, 2014 guiding the implementation of the Law on Commercial Arbitration 2010 : Vietnam’s Supreme People’s Court : The Database on the Recognition and Enforcement of foreign The Report : UK UN UNCITRAL Model Law US VLA : : : : : court judgments and decisions and arbitral awards in Vietnam from January 2012 to 30 September 2019 The Report on Evaluation and Comparison of Vietnamese Legal Regulations on Accreditation and Enforcement of Arbitral Awards with the UNCITRAL Model Law on International Commercial Arbitration, suggesting the Applicability of the Model Law in Vietnam 2019 The United Kingdom The United Nations UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments as adopted in 2006 The United States Vietnam Lawyers Association vi ABSTRACT This thesis critically examines the role of public policy on commercial arbitration in Vietnam, with a specific focus on the recognition and enforcement of foreign arbitral awards within the jurisdiction By examining international practices and Vietnamese legal texts, it sheds light on Vietnam’s approach to this important aspect of international commercial arbitration An analysis of noteworthy court decisions elucidates the application of public policy in refusing enforcement The research findings reveal that Vietnam is aligning itself with the prevailing pro-arbitration trend and adopting a more delimited scope for the application of public policy Additionally, this thesis identifies both areas of convergence and divergence in comparison to international standards and provides tailored recommendations for Vietnam The findings contribute to the ongoing discourse on public policy in arbitration and offer valuable insights for practitioners and policymakers alike vii SUMMARY OF THESIS RESULTS This thesis explores the impact of public policy on commercial arbitration in Vietnam, focusing on its role in shaping the recognition and enforcement regime of foreign arbitral awards The research findings provide valuable insights into the interplay of public policy in the context of enforcing foreign arbitral awards in Vietnam The study commences with an in-depth overview of commercial arbitration, providing a foundation for understanding the context in which the recognition and enforcement of foreign arbitral awards operate It explores the fundamental principles and key concepts that underpin commercial arbitration, setting the stage for a more focused analysis of the role of public policy Building upon this foundation, the thesis delves into the international understandings and applications of public policy, examining different countries’ viewpoints and approaches to public policy as a ground for refusing enforcement Through an examination of relevant case studies from diverse jurisdictions, the complexities and challenges associated with public policy in enforcing foreign arbitral awards are elucidated It seems that leading jurisdictions of both common and civil law systems are heading towards a pro-arbitration approach and a limited scope of application of public policy on the recognition and enforcement of foreign arbitral awards Moving to the Vietnamese legal context, the analysis of Vietnamese legal texts reveals the understanding and interpretation of public policy within the Vietnamese legal framework By incorporating academic perspectives, the study further explores the implications of public policy for the recognition and enforcement of foreign arbitral awards in Vietnam It finds that the definition of public policy in Vietnam is still a debated subject The research also investigates recent legal developments and reforms in Vietnam, providing an overview of the Vietnamese legal system’s adherence to international standards Noteworthy changes in legislation and evolving judicial practices are examined to understand their impact on the enforcement regime Resolution No 01/2014/NQ-HDTP issued by the Council of Judges of the Supreme People’s Court serves as a significant reference point, offering guidance on the basic principles of Vietnam’s law concerning the enforcement of foreign arbitral awards Furthermore, the study delves into Vietnam’s approach to the recognition and enforcement of foreign arbitral awards, examining historical perspectives and court decisions that highlight the application of public policy in refusing enforcement Notably, the thesis provides a compelling case study of six different decisions viii throughout the years, illustrating the complexities and implications of public policy in the enforcement landscape Through a comparative analysis of international standards and practices, the thesis identifies areas of convergence and divergence between Vietnam’s approach and global norms The research findings have implications not only for Vietnam but also for the broader international arbitration community, highlighting the importance of understanding the role of public policy in the recognition and enforcement of foreign arbitral awards In conclusion, this thesis contributes to the existing body of knowledge by providing a comprehensive analysis of the recognition and enforcement of foreign arbitral awards in Vietnam, with a specific focus on the role of public policy The research findings enhance our understanding of the complexities surrounding this area of law and provide valuable insights for practitioners, scholars, and policymakers in Vietnam and beyond CHAPTER 1: INTRODUCTION 1.1 Research rationale The thesis on the impact of public policy on commercial arbitration, with a particular emphasis on the recognition and enforcement of foreign arbitral awards in Vietnam, is crucial for a number of compelling reasons First, this research is important because it contributes to the development and improvement of the legal framework that governs international commercial arbitration in Vietnam This study fills an important void by shedding light on the complexities and challenges associated with the application of public policy in the jurisdiction, thereby contributing to the refinement of the legal framework and its alignment with international standards Examining the role of public policy in the recognition and enforcement of foreign arbitral awards, this study addresses a crucial aspect of the enforcement regime that has far-reaching implications for domestic and international parties A robust and effective legal mechanism for enforcing arbitral awards is essential as Vietnam continues to position itself as an attractive location for international investments and cross-border transactions In addition, the evolving nature of commercial arbitration in a global context necessitates this thesis The recognition and enforcement of foreign arbitral awards is a topic of significant global interest and importance, as it has a direct bearing on the enforceability and efficacy of arbitration as the preferred method of dispute resolution in international commercial transactions By examining international understandings and applications of public policy, this study provides valuable insights into the various approaches adopted by various jurisdictions This comparative analysis enriches the academic discourse surrounding public policy and contributes to a broader understanding of the challenges and best practices associated with enforcing foreign arbitral awards internationally Vietnam’s ever-changing legal landscape also highlights the importance of this research As the nation continues to undergo legal reforms and align its legal system with international standards, the regime for enforcing foreign arbitral awards requires careful analysis and evaluation This research captures the current state of the enforcement framework in Vietnam and explores its implications for the recognition and enforcement of foreign arbitral awards by analysing recent legal developments and reforms This analysis would be a vital resource for policymakers, practitioners, and scholars involved in formulating and implementing legal reforms in Vietnam, facilitating informed decision-making, and advancing the legal system