VIETNAM Law and Practice Contributed by: Tung Ngo, Linh D. Nguyen and Minh Doan, VILAF
• improve the effectiveness and enforceability of arbitral awards, while minimising the risk of annul - ment.
• Civil legal capacity of the signatory ‒ the signatory must possess full civil legal capacity under the Civil Code. • Freedom of contract ‒ the arbitration agreement must be entered into voluntarily, without deceit, duress or coercion. • No breach of legal prohibitions under Vietnamese law ‒ the agreement must not contravene any legal prohibitions under Vietnamese law. 3.2 Arbitrability Only disputes that fall within the scope of application as defined in Article 2 of the LCA (see 3.1 Enforce- Vietnamese courts generally respect the principle of party autonomy in determining the law applicable to dispute resolution, provided that the chosen law does not violate any legal prohibitions under Vietnamese law. Nevertheless, there is no consistent approach if the parties do not have any agreement on the law governing the arbitration agreement. Vietnamese courts generally recognise and enforce arbitration agreements. Where a valid arbitration agreement exists, courts are statutorily required to refer the parties to arbitration, in accordance with the 2015 Civil Procedure Code and the LCA. 3.4 Validity According to Article 19 of the LCA, the arbitration agreement is considered entirely independent from the main contract. Any amendment, extension, ter - mination, invalidity or unenforceability of the contract does not affect the validity of the arbitration agree - ment. Therefore, under Vietnamese law, an arbitra - tion clause remains valid even if the main contract is declared invalid, as the principle of separability is recognised and applied. ability ) can be resolved by arbitration. 3.3 National Courts’ Approach
3. The Arbitration Agreement 3.1 Enforceability
Under Vietnamese law, an arbitration agreement must satisfy certain legal requirements – including compli - ance with formal requirements and the absence of grounds rendering the arbitration agreement null and void – to be enforceable, as follows. • Written form ‒ the arbitration agreement must be in writing, either as a clause in a contract or as a separate agreement. The following are recognised as valid written forms: (a) an agreement made through communication between the parties by telegram, fax, telex, email or other forms provided for by laws; (b) an agreement made through exchange of writ - ten information between the parties; (c) an agreement recorded in writing by a lawyer, notary public or competent institution at the request of the parties; (d) a document (eg, contract, company charter, or similar) referred to by parties in their transac - tions that contains an arbitration agreement; and (e) an agreement made through an exchange of statements of claim and defence in which the existence of an arbitration agreement is proposed by one party and not denied by the other party. • Scope of application ‒ the dispute must fall within the jurisdiction of arbitration as defined in Article 2 of the LCA, specifically: (a) disputes that arise from commercial activities; (b) disputes in which at least one of the parties involved conducts commercial activities; and (c) other disputes that are stipulated by law to be settled by arbitration. • Authority of the signatory ‒ the person who signed the arbitration agreement must have the legal authority to do so, as prescribed by law.
4. The Arbitral Tribunal 4.1 Limits on Selection
Vietnamese law generally respects party autonomy in the selection of arbitrators. However, the LCA sets out specific eligibility requirements and limitations.
915 CHAMBERS.COM
Powered by FlippingBook