VIETNAM Trends and Developments Contributed by: Stephen Le Hoang Chuong, Le & Tran
Legal Issues Related to the Recognition and Enforcement of Foreign Arbitral Awards In order to recognise and enforce a foreign arbi- tral award in Vietnamese territory, the foreign arbitral award must be recognised and permit- ted to be enforced by a Vietnamese court. This procedure is intended to resolve jurisdictional conflicts and ensure respect for each country’s jurisdiction. The overall aims are to guarantee the legal rights of the judgment debtor and to avoid having the same case tried twice. Under Vietnamese law, the recognition of foreign arbitral awards is governed by Chapters XXXV and XXXVI of the 2015 Code of Civil Procedure (CCP 2015); while the enforcement of foreign judgments is governed by the 2008 Law on Civil Enforcement, as amended in 2014. Accordingly, where the involved parties wish to recognise and enforce a foreign arbitral award in Vietnamese territory (if the judgment debtor resides in Vietnam or has its head office in Viet- nam, or if property that is the subject of the for- eign judgment is available in Vietnam at the time of the request), the involved parties or their law- ful representatives must submit an application to the Vietnamese courts or the Ministry of Justice for recognition or permission to enforce. Grounds for Courts in Vietnam to Refuse to Recognise Foreign Arbitral Awards A frequent justification for courts in Vietnam not to recognise a foreign arbitral award is when individuals, businesses, or organisations as judgment debtors are not instructed in a timely and appropriate manner on the procedure for appointing an arbitrator and dispute resolution at an international arbitration centre, or are oth- erwise hindered from exercising their litigation rights due to other reasonable grounds.
This reason is often invoked to deny foreign arbi- tral awards when the judgment debtors fail to receive a fair opportunity to present their case. As such, the judgment debtor will have to prove that they were deprived of the right to a fair trial at the international arbitration centre. This situ- ation includes the following scenarios: • the judgment debtor was not provided notice of the appointment of an arbitrator; • the judgment debtor was not provided notice of the arbitration procedure; or • the judgment debtor was not able to present their case. The type of notice to be provided regarding an arbitrator appointment, arbitration procedure, or arbitration session is governed by the arbi- tration rules selected by the parties involved in the arbitration agreement. The regulations in the CCP 2015 on notices and announcements do not apply to foreign arbitral awards. Signatories of arbitration agreement do not possess signing capacity One basis for non-recognition includes the lack of physical or mental capacity, the lack of authorisation, or if the signatory is underage (a minor). Article 459.1(a) of CCP 2015 (Article 370 of CCP 2004, amended and supplemented in 2011) pro- vides that the capacity-determining jurisdiction refers to each party’s “respective jurisdiction”. The reviewing court must base its decision on the laws that apply in the jurisdiction of each signatory to determine whether or not said sig- natory has the legal capacity to sign the arbitra- tion agreement. In other words, the court is not permitted to use Vietnamese legal provisions to determine if a for-
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