 | Mr. Pham Duy Nghia VIAC Arbitrator Lecturer at Fulbright University Vietnam |
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
He is a British, and from my modest understanding, in his hometown, judges, lawyers and arbitrators have intended the legal profession to be independent from the influence of kings and government since the beginning of time. Privatization, private ownership and privacy in his country are sacred, cherished and therefore not sinful and evil. In his culture, not only court’s adjudication is independent but private arbitrator's jurisdiction is also respected and enforced. Unsurprisingly, there is a long-standing tradition of arbitration in Britain.
For many generations, Vietnamese people have joined forces to establish a foundation for arbitration in our country, and most notably, that of Mr. Pham Quoc Anh, former Chairman of the Vietnam Lawyer Association. With his zealous endeavor to seek for sponsorship more than a decade ago, Mr. Pham Quoc Anh gave the Drafters of the Law on Commercial Arbitration an opportunity to learn from the best international arbitration experts, including those from UNCITRAL Model Law on Arbitration Committee, Britain, America and Singapore.
Introducing private jurisdiction into a country where public jurisdictions is still in embryo, is challenging. Interestingly, however, where there is demand, there will be supply. Vietnam, for the past few decades, has been an accelerating ship plunging into the smog of a market economy. Private companies sprung up. Foreign companies are also quickly looking for opportunities in a developing country with low production and environmental costs and a population of nearly a hundred million people with increasing incomes. Business risks arise and demand proper management. If there is a dispute, there must be a reliable body to adjudicate.
After the capitalists came standard form contracts, general standards (e.g. the FIDIC suite of contract), customs and practice of lawyers and consultants. When there is a dispute, people will consider whether to use Vietnamese judiciary, or other institutions, for example arbitration.
Interestingly, arbitration is also a service where the service users are the claimants. The parties can limit the issues that should be resolved by arbitrators, and those that should not be. They can also file a request and agree on the scope of evidence themselves, on issues that require expert opinion and witnesses, document production schedule and method and progress of arbitration proceeding. It turns out that when they file a request to the Secretariat, they can draw up an almost identical document to terms of reference (TOR) on which will be the basis of a fair award. Combining the contributions of the parties, the Arbitral Tribunal often issues a roadmap and overall requirements for proceedings and methods of resolution. Although the names are different (e.g. PO1), they are agreement between the arbitrator and parties using the service.
Drafters of the Law on Commercial Arbitration 2010 can rejoice, however, in my opinion, such practice is aware of, but cannot be subconsciously deposited. Legislators have just moved from socialist legislation to market-style rule of law. The Law on Commercial Arbitration 2010 was drafted with the following intended process: initiation of claim, attachment of evidence, consideration and acceptance by the Secretariat, fee payment, constitution of arbitral tribunal, verification, document production, hearing, award issuance, and probably annulment by the Court.
Over the past ten years, new demands and customs motivate arbitration to change rapidly. Following the step of foreign lawyers and consultants, a generation of talented Vietnamese commercial lawyers now provide the essential service to investors and business owners. More and more Vietnamese arbitrators are confidently and actively participating in arbitration proceeding at international arbitration centers. Accompanied by their appearance, new practice gradually transform arbitration into a service that protect fairness and justice for people and businesses.
Demand increased and became diversified, as did the number of arbitration institutions. Quality and frequency of arbitration activities have grown rapidly, along with skillful and competent staffs that provide increasingly professional and internationally standardized arbitration services. This much is truly an outstanding accomplishment./.
*This research paper is made to order by the Science Council under Vietnam International Arbitration Centre (VIAC) and only reflects the author’s opinion. VIAC uploads this paper on its official website with the aim of providing valuable information for the reference of the Arbitrators, the parties, other participants in the arbitral proceedings pursuant to VIAC’s Rules of Arbitration, as well as those who are interested in arbitration. Any reference and citation to this research made by a third party shall not be valid or recognized by VIAC. VIAC shall not explain or answer any requests or inquiries related to this research from a third party.
Arbitration, and typically commercial arbitration, is an Alternative Dispute Resolution (ADR) which is agreed by parties of the dispute. Arbitration can be used to replace the traditional way of litigation in court.
Derive from arbitration’s dispute settlement principles, arbitration shows many pros and brings many benefits for parties in commercial dispute, specifically as follows:
A Polish appeals court vacated an International Chamber of Commerce (ICC) partial award for alleged irregularities in the arbitrator's appointment (for further details please see " ICC award set aside due to irregularities in arbitrator's appointment "). The sole arbitrator's final award was also successfully challenged and set aside. The first reason to vacate the final award was also the issue of the sole arbitrator's appointment.
It is normal to inspect the goods that have been lost or damaged during the performance of the sales contract and in the contract of carriage. However, improper inspection can lead to significant disputes and damages that you can refer to below.
The ten years of Law on Commercial Arbitration 2010 (LCA) are also the 10-year development period of VIAC - the first institutional arbitration organization in Vietnam, the organization that goes along with the formation and advancement of the legal framework of commercial arbitration in Vietnam.
Law on Commercial Arbitration (“LCA”) enacted in 2010 was considered a major step forward for the development of commercial arbitration in Vietnam. Compared with the previous years and with international standards, LCA has made remarkable progress, namely recognizing enterprises’ freedom of choice, broadening the scope of arbitration, raising the arbitral tribunal’s authority, valuing court assistance (especially interim measures enforcement), encouraging flexibility in language of arbitration, and improving party’s autonomy in arbitration while maintaining proper manners during arbitral proceedings.
Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.
Law on Commercial Arbitration 2010 (LCA)- the procedural law governing arbitration proceedings whose seat is in Vietnam
Nowadays, as the digital economy emerges, electronic agreements on online websites are becoming more and more prevalent; hence, the legal effect of establishing terms and conditions of service when accessing the website (browse-wrap) and clicking (click-wrap) are of particular interest. The following paper analyzes some of the legal aspects of online agreement conclusion, especially the establishment of the arbitration agreement by means of browse-wrap and click-wrap.
Whether settling disputes in Court or through arbitration, when a party has the burden of proof, it must submit evidence to the arbitral tribunal. The evidence can be in many different forms: Document electronic evidence, audio recordings, video recordings, witness statement, etc. In international arbitration practice, especially in complex disputes, a type of evidence that is frequently used by the parties to defend their opinion/request is testimony/report of "expert witness".
In international commerce and investment, parties to a dispute often select arbitration as an alternative dispute resolution other than litigation in which the court, an authorized state agency, adjudicate disputes. An explanation for this phenomenon is that arbitration may be the optimal means that the parties can exercise their autonomy in writing to select one or several individuals who are not representing state agencies and state power (the so-called private parties) to resolve disputes. However, to prevent the possibility of arbitrators "privatizing" justice, [1] the New York Convention and the ICSID Convention set out the rules for annulment of arbitral award when such award violates arbitral proceeding. Here, questions arise. What rules of procedure are violated? And to what extent is the commercial and investment arbitral award annulled? This article seeks to elucidate the theory and practice of annulment for violations of procedure under the New York Convention and the ICSID Convention.
Goods can be consolidated, batched, packed, sorted, and grouped for a certain period of time before being loaded onto a trailer for carriage to the consignee. Disputes about whether the time to do these things are within the scope of insurance liability or not is an issue worth knowing (through the lawsuit with the documents of a foreign law firm) below for readers’ reference.
Mr. Vu Anh Duong is the Secretary General of the Vietnam International Arbitration Centre (“ VIAC “), which is the leading Vietnamese arbitration and mediation institution . Mr. Duong has contributed significantly to the development of arbitration in Vietnam in various ways; in addition to his role with the VIAC, Mr. Duong has served as a member of various drafting committees dealing with not only the VIAC’s Rules of Arbitration (2017) (“ VIAC Rules ”), but also Vietnam’s arbitration-related legislation. He also regularly lectures on commercial arbitration and sits as an arbitrator in both international and domestic commercial arbitrations.
Abstract: This discourse focuses on a detailed analysis of some theoretical and practical issues about the application of interim emergency measures involving third parties, in the field of domestic and international. Besides, the discourse provides measures to enhance the ability to enforce the decisions applying interim emergency measures with the third parties within the realm of international arbitration law. Subsequently, it extracts experience and recommendations pertaining to the legal framework in Vietnam regarding this matter.
Besides many advantages, arbitration also reveals certain limitations, including the Arbitral Tribunal's limited jurisdiction over third parties. The question arises as to the need for accurately identifying cases of Arbitral Awards related to third parties and the possibility of the Court annulling these awards due to third parties, thereby, drawing lessons to minimize the risk of setting aside Arbitral Awards. Moreover, there is also a need for solutions to improve the mechanism for challenging Arbitral Awards which currently retain many shortcomings.
During arbitral proceedings, the mediation process may cause some certain conflicts that requests the Arbitral Tribunal to seriously consider. Resolving effectively these conflicts based on fundamental legal principles and the arbitration skills of the Tribunal will ensure the rights and interests of disputing parties and third parties. This discourse focuses on analyzing potential conflicts and providing recommendations to the Tribunal to maximize the effectiveness of the mediation process and reduce conflict occurrence.
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According to the Department of Judicial Support , Ministry of Justice, currently , there have been 48 arbitration institutions established in our country, with over 600 arbitrators participating in resolving thousands of commercial disputes each year 1 . An arbitration service has been developed. Along with the growth , the trait of this service became more apparent , includi ng the relevance of third-party interests. Unlike court litigation, in principle, arbitration is a private dispute resolution method , therefore, the involvement of third parties is exceptional. The discourse discusses how the arbitral tribunal considers and guarantee s the third party's interest in the arbitra l proceedings by providing some situations in which disputing parties or the arbitral tribunal may need to consider the interests of third parties. The goal of arbitr ation is to make contributions to resolving disputes fairly, thereby encourag ing parties to fulfill their obligations voluntarily in order to avoid further dispute escalation of disputes . Based on the analysis , the author suggests policy improvements pertaining to third parties that may be considered in the upcoming revision of the Law on Commercial Arbitration.
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