Baker McKenzie vừa xuất bản International Arbitration Yearbook 2021. Dưới đây là vài điểm đáng lưu ý đối với Việt Nam. Có thể xem báo cáo về các nước khác ở đây.
[…] Vietnam has entered into a side letter with New Zealand, which would prevent foreign investors from seeking arbitral awards provided for under chapter 9 (Investment) of the CPTPP unless there is specific consent of the host state.
To implement the EVIPA on the domestic scale, the National Assembly of Vietnam adopted Resolution 113/2020/QH14 on the recognition and enforcement of EVIPA awards. This resolution provides that final awards issued under the EVIPA will be deemed as foreign arbitral awards to be recognized and enforced pursuant to the CPC during the five-year transition period...
Another noteworthy recent international trade and investment agreement is the Regional Comprehensive Economic Partnership Agreement (RCEP). The signatories include ASEAN member states, Australia, China, Japan, Korea, and New Zealand. They agreed to exclude all provisions on direct actions against host states by foreign investors. However, foreign investors can still seek arbitration against the host state’s illegal conduct under other existing treaties between Vietnam and RCEP member states.
Moreover, Vietnamese law allows foreign arbitration centers to operate in Vietnam through a branch or representative office after satisfying the required conditions and undergoing the correct registration procedures. However, the arbitration awards issued by the local representative office or branch of a foreign arbitration center are considered foreign arbitration awards, and thus, have to go through the process of recognition by the competent court before enforcement can be made in Vietnam. For example, on 17 December 2019, the Korean Commercial Arbitration Board (KCAB) opened its overseas liaison office (Overseas Office) in Hanoi, Vietnam. KCAB was the first foreign arbitral institution approved to open an office in Vietnam.
As of January 2021, there are 32 local arbitration institutions in Vietnam currently registered with the Ministry of Justice, 18 of which have fewer than 10 arbitrators. The Vietnam International Arbitration Centre (VIAC) at the Vietnam Chamber of Commerce and Industry remains the most well-known domestic arbitration institution…According to a published statistic by VIAC, the number of disputes received by VIAC has continuously increased year by year. In 2019, VIAC received 274 cases…Entities from China, Singapore, and South Korea are the top clients bringing their disputes to VIAC for settlement.
In its Decision 02/2020/QD-PQTT dated 23 April 2020,[the People’s Court of Hanoi] dismissed Vinachem’s complaint that the arbitral tribunal did not have jurisdiction over the dispute. Vinachem argued that under the parties’ agreement, i.e., an EPC contract based on the FIDIC Silver Book, the dispute must be submitted to amicable mediation and resolution by an adjudication board before any party could pursue arbitration; therefore, the arbitral tribunal cannot assume jurisdiction as the Contractors bypassed the adjudication board. The court found that, because the parties were clearly unable to amicably settle their dispute as shown in their correspondences, the Contractors’ request for arbitration without prior recourse to mediation and an adjudication board was not contrary to the parties’ agreement. Even though there are public comments on the merit of this court decision, the decision at least shows that the content of the parties’ correspondences prior to commencement of the arbitration proceeding can give significant weight to their rights and legal position in the arbitration proceeding.
In [a] case, during the negotiation after the bidding process, the respondent (the bid solicitor) provided the claimant (the bidder) with a draft agreement that included an arbitration clause. The parties then signed several minutes relating to this draft agreement, one of which stipulated that “The parties agreed to add the location of [the arbitration institution], which is Hanoi, Vietnam.” The parties did not eventually sign the draft agreement, so the respondent sent several complaints to the bank that had granted the claimant a bid guarantee and requested the bank to pay the guaranteed amount. The claimant then relied on the arbitration clause in the draft agreement to initiate an arbitration proceeding. However, the arbitral tribunal decided that they did not have jurisdiction over the dispute because an arbitration agreement did not exist.
The court of Hanoi disagreed with the arbitral tribunal. The court observed that although the parties did not sign the agreement, the fact that the claimant was granted a bank guarantee for the bid was a prerequisite for the claimant to participate in the bid and negotiate with the respondent. The parties did proceed with the negotiation. Therefore, the court ruled that there existed a dispute in relation to the agreement, and this dispute fall under the jurisdiction of the arbitral tribunal as reaffirmed by the parties in their meeting minutes.
On 20 February 2020, the Supreme People’s Procuracy (SPP) issued Notice No. 97/TB-VKSTC to lower-level procuracies to guide the recognition and enforcement of foreign awards. [Ngu Truong: See here. It is from Truong Dai Hoc Kiem Sat Hanoi. This could be a good source for litigation-related official guidance.] In this notice, the SPP asked lower-level procuracies to draw lessons from [an Appellate Decision] of the People’s High Court, in which the High Court…did not recognize and enforce a SIAC arbitral award in favor of Balance Industry Co., Ltd (South Korea) against P.P., JSC (Vietnam)…
First, pursuant to…SIAC Rules 2013, the tribunal must hold a hearing unless the parties agree that the dispute shall be decided on the basis of documentary evidence only. The tribunal, in this case, however, issued an award on a document-only basis based on Balance Industry’s request only.
Second, pursuant to…SIAC Rules 2013, “[a] sole arbitrator shall be appointed unless the parties have agreed otherwise […]”. However, there is no evidence in the case record showing whether, prior to the appointment of the sole arbitrator, Balance Industry had proposed the use of a sole arbitrator to P.P., or SIAC had sent a list of arbitrators to P.P. or notified P.P. of its right to negotiate with Balance Industry on the appointment of an arbitrator. Therefore, the SPP supported the court’s ruling that SIAC violated its own rules when deciding to appoint the sole arbitrator.