VIETNAM Law and Practice Contributed by: Vinh Luu, Phong Tran, The Nghiem and Thu Nguyen, Asia Legal
5.2 Circumstances for Court Intervention Under Article 44 of the LCA, Vietnamese courts can address an arbitral tribunal’s jurisdiction if a party files a request for judicial review within 05 (five) working days of receiving an affirmative ruling where the tri - bunal decides it has jurisdiction despite an objection. Courts also evaluate jurisdiction when a party initiates court proceedings in alleged violation of an arbitration agreement or during enforcement and setting-aside proceedings. Alternatively, a party may raise jurisdictional chal - lenges later as a ground to apply to set aside the final arbitral award under Article 68 of the LCA or during the recognition and enforcement stage; however, a direct judicial challenge to an ongoing proceeding is strictly triggered by the tribunal’s preliminary affirma - Specifically, under Article 44 of the LCA, if a party objects to jurisdiction and the newly constituted tribu - nal decides to proceed by affirming that it has jurisdic - tion, that dissatisfied party has a tight statutory win - dow of five working days from receiving the tribunal’s decision to request a competent People’s Court to review and make a final ruling. If the court rules that the tribunal lacks jurisdiction, the arbitration proceed - ings are terminated. If the court upholds jurisdiction, the arbitration continues. Under Article 69 of the LCA, parties do not have the right to approach a court to challenge the arbitral tri - bunal’s jurisdiction as soon as a case is filed, nor while the arbitration is ongoing after its constitution (except via the specific preliminary review mechanism under Article 44). Instead, regarding post-award challenges governed by Article 69, parties may only petition a competent court to set aside an award – including challenges grounded on a lack of tribunal jurisdiction – strictly after a final arbitral award has been rendered, within a mandatory time limit of 30 days from the date of receiving the award. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility The LCA does not expressly distinguish between juris - diction and admissibility and Vietnamese case law has tive jurisdictional decision. 5.3 Timing of Challenge
Pursuant to Article 42.6 of the LCA, in cases where an arbitrator cannot continue the dispute resolution due to force majeure or objective obstacles or if they are changed, the selection and appointment of a replace - ment arbitrator follow the same procedure as the rules applicable to the appointment process. 4.5 Arbitrator Requirements Vietnamese law does not specify the extent to which arbitrators must be independent and impartial. The LCA only stipulates circumstances in which an arbitra - tor must refuse to settle a dispute if justifiable doubts exist as to their impartiality or independence. Pursuant to Article 42.2 of the LCA, after being select - ed or designated, the arbitrator shall notify in writing the arbitration centre or arbitration council and parties of the circumstances which may affect his/her objec - tivity or impartiality. The principle of competence-competence is fully applicable under Vietnamese law. Pursuant to Article 43.1 of the LCA, an arbitral tribunal possesses the legal authority to review and rule upon a party’s chal - lenge regarding its own jurisdiction, including objec - tions concerning the existence, validity or scope of the arbitration agreement. The tribunal may issue a specific ruling on jurisdiction prior to hearing the merits of the dispute or incorpo - rate its decision directly into the final arbitral award. If a party contests the tribunal’s affirmative ruling on jurisdiction, they are not left without recourse; they retain the statutory right under Article 44.1 of the LCA to request a competent People’s Court to review and set aside the tribunal’s jurisdictional decision. This balanced framework ensures procedural efficiency – allowing arbitrators to exercise initial control over their mandate – while preserving judicial oversight to guar - antee that no party is forced into arbitration without a valid legal foundation. 5. Jurisdiction 5.1 Challenges to Jurisdiction
1179 CHAMBERS.COM
Powered by FlippingBook