VIETNAM Trends and Developments Contributed by: Stephen Le Hoang Chuong, Le & Tran
Violations by arbitration tribunal members and breaches of protocols and procedures Article 459.1(dd) of CCP 2015 (Article 370.1(dd) of CCP 2004, amended and supplemented in 2011) provides that a judgment or arbitral award may be denied due to (i) violations committed by members of the arbitration tribunal; or (ii) a failure to comply with arbitration protocols and procedures. Regarding the arbitration tribunal members, the provisions of Article 459.1(dd) of CCP 2015 are applicable if one party has been deprived of the right to appoint an arbitrator or to request arbitration tribunal members that are suitable to the parties’ arbitration agreement. To determine whether or not a violation has occurred, the court takes into account: (i) the arbitration agreement; or (ii) if said agreement does not provide any provisions in this regard, the laws of the country where the arbitration agreement was executed will be utilised. Regarding violations of arbitration protocols and procedures, the provisions of Article 459.1(dd) of CCP 2015 apply if one party has been deprived of an arbitration procedure under the agreement established by the relevant parties. This reason is similar to the provisions concerning the annul- ment of domestic arbitral awards, as stated in Article 68.2(b) of the Vietnamese Law on Com- mercial Arbitration. However, one needs to note that the legal basis for the assessment of the arbitration procedure’s legality is not found in the typical litigation procedures of the Vietnam CCP. Instead, it is based on the agreement made and signed by the relevant parties, the rules of arbitration set by the foreign arbitration centre, and the law regarding arbitration of the country where the parties agreed to formalise their com- mitment.
eign signatory has the legal capacity to sign the foreign arbitration agreement in question. Con- versely, the court is likewise not allowed to use foreign legal provisions to deny the legal capac- ity of a Vietnamese signatory to sign the same arbitration agreement. In practice, the legally applicable law that is to be applied to assess the signing capacity of each signatory must be determined via the court’s conflict avoidance principles. For foreign signatories, the court must apply the conflict avoidance principles pursuant to Article 466 (for foreign persons) and Article 467 of CCP 2015 (for foreign entities) to ascertain the appli- cable law. The conditions are as follows: • The legal capacity of a foreigner shall be determined according to the laws of the country that they are a citizen of (Article 466.1 of CCP 2015). • The legal capacity of a foreign agency or organisation shall be determined according to the laws of the country where such agency is established (Article 467 of CCP 2015). • The application of foreign laws to determine the legal signing capacity of the signatories must also comply with the provisions of Arti- cle 481 of CCP 2015, on selecting and pro- viding foreign laws to apply to a civil dispute resolution involving foreign elements. The rules are different for Vietnamese signato- ries. When assessing the legal capacity of Viet- namese individuals, businesses, and organisa- tions, the court must take into consideration the relevant requirements of the Criminal Code, the Law on Enterprises, and other relevant legisla- tive codes.
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