VIETNAM Law and Practice Contributed by: Vinh Luu, Phong Tran, The Nghiem and Thu Nguyen, Asia Legal
not developed a separate standard of judicial review for questions of admissibility. Accordingly, issues characterised as jurisdictional under the LCA are sub - ject to de novo judicial review, while the treatment of procedural admissibility issues remains uncertain under Vietnamese law. Under the LCA, where a party challenges the tribunal’s jurisdiction under Article 44 or seeks to set aside an award under Article 68, the court independently examines the existence, validity and scope of the arbitration agreement, as well as whether the dispute is arbitrable under Vietnamese law. The court need not defer to the tribunal’s juris - dictional findings. 5.5 Breach of Arbitration Agreement Vietnamese courts generally adopt a pro-arbitration approach where the parties have entered into a valid arbitration agreement. Under Article 6 of the LCA, a court must decline jurisdiction over a dispute subject to a valid arbitration agreement unless the court finds that the arbitration agreement is null and void, incapa - ble of being performed or the dispute is not arbitrable under Vietnamese law. Where a court has accepted a case before identifying the existence of a valid arbitration agreement, it may terminate or suspend the proceedings, as appropri - ate under the applicable procedural rules and direct the parties to resolve their dispute through arbitration. Consequently, national courts firmly enforce the nega - tive effect of arbitration agreements, directing parties back to the arbitral forum as long as the agreement satisfies basic statutory validity requirements. 5.6 Jurisdiction Over Third Parties An arbitral tribunal may only assume jurisdiction over a non-signatory through strict statutory legal succes - sion under Article 5 of the LCA. This occurs when a corporate entity undergoes a merger, consolidation, division or conversion, binding the legal succes - sor entity or when an individual party dies or loses capacity, binding their legal heirs or representatives. Additionally, if contractual rights and obligations are formally transferred to a third party, the arbitration agreement binds that transferee. These statutory succession rules apply equally to both domestic and foreign third parties, provided they legally succeed a
signatory under applicable laws. Otherwise, tribunals cannot extend jurisdiction over external third parties without a separate, valid written arbitration agree - ment.
6. Preliminary and Interim Relief 6.1 Types of Relief
Under Articles 48 and 49 of the LCA, an arbitral tri - bunal may, at the request of a party order one (or more) interim relief (legally termed “interim urgent measures”). Such measures are binding on the par - ties, although implementation may require assistance from the competent court or enforcement authorities if a party fails to comply voluntarily. The interim measures available under the LCA include: • preserving the status quo of the disputed property; • prohibiting or requiring a party to perform certain acts in order to prevent prejudice to the arbitral proceedings; • attachment of the disputed property; • preservation, storage, sale or other disposition of the property in dispute; • interim payment between the parties; and • prohibiting the transfer of rights in respect of the disputed property. The arbitral tribunal may also require the requesting party to provide appropriate security before grant - ing an interim measure. Where a party has already requested a court to grant the same interim meas - ure, the arbitral tribunal must decline to consider that request. 6.2 Role of Courts Vietnamese courts play a crucial supportive role in granting interim relief under Article 53 of the LCA. A party may request either the arbitral tribunal or the competent court to grant an interim measure after commencing arbitration. When courts do grant interim relief – such as asset freezes, asset preservation or prohibitions on specific acts under the Civil Procedure Code 2015 – these orders are binding and enforceable through the civil judgment enforcement system.
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