VIETNAM Law and Practice Contributed by: Vinh Luu, Phong Tran, The Nghiem and Thu Nguyen, Asia Legal
3.4 Validity Vietnamese jurisdiction fully applies the doctrine of separability to arbitration agreements. Under Article 19 of the LCA, an arbitration agreement exists inde - pendently from the main contract in which it is con - tained. Consequently, the modification, rescission, termination or invalidity of the main contract does not automatically render the arbitration agreement void.
• commercial disputes: disputes arising from com - mercial activities are generally arbitrable. • disputes permitted by law: certain non-commercial disputes may also be resolved by arbitration where specialised legislation expressly allows it, such as in the fields of construction, investment, maritime, labour and intellectual property. • non-arbitrable matters: criminal, administrative, marriage and family, inheritance and other disputes involving the exercise of public authority are gener - ally not arbitrable. • non-contractual disputes: the LCA does not expressly address the arbitrability of non-contrac - tual disputes. Their arbitrability therefore depends on whether another law permits arbitration. Where arbitrability is challenged, Vietnamese courts have the final authority to determine whether the dis - pute falls within the scope of the LCA and whether a valid and enforceable arbitration agreement exists. 3.3 National Courts’ Approach Vietnamese courts generally respect the principle of party autonomy in determining the law applicable to dispute resolution. However, where the parties have not agreed on the law governing the arbitration agree - ment, there is no consistent judicial approach and the LCA is silent on the point. In practice, the internationally accepted default of applying the law of the seat of arbitration is generally followed, on the basis that the arbitration agreement is most closely connected with the place where the arbitration is conducted. Parties are nonetheless well advised to expressly specify the governing law of the arbitration agreement, rather than rely on a default rule that remains unsettled in Vietnam. As to enforcement, Vietnamese courts generally recognise and give effect to arbitration agreements. Where a valid arbitration agreement exists, a court is statutorily required to refer the parties to arbitration under the LCA and the Civil Procedure Code 2015, provided a party invokes the agreement no later than the first-instance hearing. Failure to do so is treated as a waiver of the right to arbitrate.
4. The Arbitral Tribunal 4.1 Limits on Selection
Under the LCA, the principle of party autonomy is gen - erally respected, meaning Parties have wide freedom to choose their arbitrators. However, this autonomy is not absolute and is subject to specific statutory limits. Statutory Eligibility Requirements (Article 20, LCA) Parties cannot select just anyone to act as an arbitra - tor. A person chosen by the parties must: • have full civil legal capacity under the Civil Code; • hold a university degree; and • have at least 5 years of work experience in their field of study. Nevertheless, in special cases, an expert with high professional qualifications and substantial practical experience can serve as an arbitrator even without the standard university degree/experience mix. Statutory Disqualifications (Article 20.2, LCA) Vietnamese law strictly prohibits certain individuals from acting as arbitrators, overriding any party choice: • current judges, prosecutors, investigators, bailiffs or officials of People’s Courts, People’s Procurator - ates, investigative agencies or judgment enforce - ment agencies; and • individuals currently under criminal prosecution, serving a criminal sentence or whose criminal records have not been cleared.
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