Chương XXIX Bộ luật Tố tụng dân sự 2004: Thủ tục xét đơn yêu cầu công nhận và cho thi hành tại Việt Nam quyết định của trọng tài nước ngoài

Chapter XXIX

PROCEDURES FOR CONSIDERING PETITIONS FOR RECOGNITION AND ENFORCEMENT IN VIETNAM OF FOREIGN ARBITRAL AWARDS

Article 364.- Petitions for recognition and enforcement in Vietnam of foreign arbitral awards

1. Petitions for recognition and enforcement in Vietnam of foreign arbitral awards must be sent to the Vietnamese Ministry of Justice and contain the following principal details:

a) The judgment creditors’ full names and addresses of their residence places or work places or their lawful representatives in Vietnam;

If the judgment creditors are agencies or organizations, their full names and head-office addresses must be fully inscribed;

b) The judgment debtors’ full names and addresses of their residence places or work places; if the judgment debtors are agencies or organizations, their full names and head-office addresses must be inscribed; in cases where the judgment debtors being individuals have no residence places or work places in Vietnam or the judgment debtors being agencies or organizations have no head-offices in Vietnam, the petitions must be clearly inscribed with the addresses of the places where exist properties and assorted assets related to the enforcement in Vietnam of the foreign arbitral awards.

c) Requests of the judgment creditors;

2. Petitions in foreign languages must be accompanied by their Vietnamese versions lawfully notarized or authenticated.

Article 365.- Papers, documents accompanying petitions

1. Accompanied with petitions shall be papers and documents prescribed in international treaties which Vietnam has signed or acceded to. In cases where international treaties do not prescribe them or are not available, the petitions must be accompanied by valid copies of the foreign arbitral awards and valid copies of the arbitral agreement among the parties on the resolution of their disputes which may arise or have arisen through arbitration procedures, provided that the laws of relevant countries stipulate that they can be resolved through such procedures.

The arbitral agreement may be the arbitration terms provided for in the contract, or a separate agreement on arbitration, which has been concluded by the concerned parties after the disputes arise.

2. If papers and/or documents accompanying the petitions are in foreign languages, their lawfully notarized or authenticated Vietnamese versions must also be sent.

Article 366.- Transferring dossiers to courts

1. Within seven days as from the date of receiving the petitions as well as accompanying papers and documents, the Ministry of Justice shall transfer the dossiers to competent courts as stipulated in Articles 34 and 35 of this Code.

2. In cases where the Ministry of Justice has already transferred the dossiers to competent courts but later receives notices from competent foreign agencies saying that they are considering the cancellation of, or have already cancelled or suspended the foreign arbitral awards, the Ministry of Justice shall immediately notify the courts thereof in writing.

Article 367.- Receiving case files

1. Within three working days as from the date of receiving case files from the Ministry of Justice, the competent courts must accept the files and notify the judgment debtors being individuals, agencies or organizations as well as the procuracies of the same level thereof.

2. The courts are entitled to request the individuals, agencies or organizations that have filed the petitions to clarify obscure details in the petitions.

Article 368.- Preparation for considering petitions

1. Within two months as from the date of accepting petitions, the competent courts shall, on a case-by-case basis, issue one of the following decisions:

a) To suspend the consideration of petitions in case of receiving written notices from the Ministry of Justice saying that the foreign competent agencies are reviewing foreign arbitral awards;

b) To stop the consideration of petitions if the judgment creditors being individuals, agencies or organizations withdraw their petitions or the judgment debtors being individuals, agencies or organizations have voluntarily executed the judgments; the judgment debtors being agencies or organizations have been dissolved or gone bankrupt and their rights and obligations have been handled according to the provisions of Vietnamese law or the judgment debtors being individuals have died while their rights and obligations are not inherited;

c) To stop the consideration of the petitions in case of receiving written notices from the Ministry of Justice saying that foreign competent agencies have cancelled the foreign arbitral awards or stopped the enforcement thereof;

d) To stop the consideration of petitions and return the files to the Ministry of Justice in cases where such consideration does not fall within the courts’ jurisdiction, where the judgment debtors being agencies or organizations have no head-offices in Vietnam, where the judgment debtors being individuals neither reside nor work in Vietnam, or where it is impossible to identify the places where exist the assets related to the enforcement of the awards in Vietnam;

e) To open hearing sessions to consider petitions.

In cases where the courts request explanations, as provided for in Clause 2, Article 367 of this Code, the time limit for preparation for petition consideration shall be extended for two more months.

2. The courts must open hearing sessions to consider the petitions within twenty days as from the date of issuing the decisions to open such hearing sessions. The courts must forward the case files to the procuracies of the same level for study within ten days before the opening of the hearing sessions; at the end of this time limit, the procuracies must return the case files to the courts for opening hearing sessions to consider the petitions.

Article 369.- Hearing sessions for consideration of petitions

1. The consideration of a petition shall be conducted at a hearing session by a Trial Panel which is composed of three judges, one of whom shall act as the presiding judge under the assignment of the court’s chief judge.

2. Procurators of the procuracies of the same level must participate in the hearing sessions. In cases where they are absent, the hearing sessions must be postponed.

3. The hearing sessions shall be conducted in the presence of the judgment debtors or their lawful representatives; if they are absent for the first time for plausible reasons, the hearing sessions must be postponed.

The consideration of petitions shall still proceed if the judgment debtors or their lawful representatives request the courts to consider the petitions in their absence or if they have been duly summoned for the second time, but are still absent.

4. The trial panel shall not re-try the disputes which have already been dealt with by the foreign arbitrators but only check and compare the foreign arbitral awards and their accompanying papers or documents with the provisions of this Code, other provisions of Vietnamese law and relevant international treaties which Vietnam has signed or acceded to.

5. After considering the petitions and the accompanying papers or documents and hearing the opinions of the summoned persons and of the procurators, the trial panels shall deliberate the cases and make decisions by majority.

The trial panels may issue decisions to recognize and enforce the foreign arbitral awards or issue decisions not to recognize foreign arbitral awards.

Article 370.- Cases of non-recognition

1. Foreign arbitral awards shall not be recognized and enforced in Vietnam in the following cases:

a) Parties to the arbitral agreement have no capacity to sign such agreement under the law applicable to each party.

b) The arbitral agreement is legally invalid under the law of the country, which has been selected by the parties for application, or the law of the country where the awards were declared if the parties had not chosen law applicable to such agreement;

c) The judgment debtors being individuals, agencies or organizations were not promptly and properly notified of the appointment of arbitrators and of procedures for resolution of disputes at foreign arbitration organization, or could not exercise their procedural rights for plausible reasons;

d) Foreign arbitral awards are declared on disputes not requested by the parties for resolution or going beyond the request of the parties to the arbitral agreement. In cases where the awards can be separated into distinct parts on matters requested for resolution and parts on matters not requested for resolution at foreign arbitration organizations, the parts on matters requested for resolution may be recognized and permitted for enforcement in Vietnam;

e) The foreign arbitration personnel or the procedures for dispute resolution by foreign arbitrations do not comply with the arbitral agreement or with the law of the country where the foreign arbitral award is pronounced if the arbitral agreement does not prescribe such matters.

f) The foreign arbitral awards have not yet been legally binding on the parties;

g) The foreign arbitral awards have been cancelled or suspended from enforcement by competent bodies of the countries where the awards were pronounced or the countries whose laws have been applied.

2. Foreign arbitral awards shall also not be recognized and permitted for enforcement in Vietnam, if the Vietnamese courts deem that:

a) The disputes can not be resolved by arbitration under Vietnamese law;

b) The recognition and enforcement in Vietnam of the foreign arbitral awards run counter to the basic principles of Vietnamese law.

Article 371.- Forwarding court decisions

Immediately after issuing the decisions prescribed in Articles 368 and 369 of this Code, the courts shall send the decisions to the involved parties and the procuracies of the same level; if the involved parties stay abroad, such decisions shall be sent through the Ministry of Justice.

Article 372.- Appeal and protest

1. Within fifteen days as from the date the courts issue decisions prescribed in Articles 368 and 359 of this Code, the involved parties or their lawful representatives may lodge appeals against such decisions; in cases where the involved parties are not present at the hearing sessions to consider the petitions, the appeal time limit shall be counted from the date they receive such decisions. The appeals must clearly state the appeal reasons and requests.

In case of force majeure events or objective obstacles, which have rendered the involved parties or their lawful representatives unable to lodge their appeals within the above time limit, the duration in which the force majeure events or objective obstacles exist shall not be calculated into the appeal time limit.

2. The procuracies of the same level or the Supreme People’s Procuracy may protest against court decisions prescribed in Articles 368 and 369 of this Code.

The time limit for a procuracy of the same level to lodge a protest is fifteen days and that for the Supreme People’s Procuracy is thirty days, counting from the date the court issues the decision.

Article 373.- Considering appeals or protests

1. Within one month counting from the date it receives case files, the Supreme People’s Court shall review a provincial-level people’s court’s decision which is appealed or protested against. In cases where explanations are requested as stipulated in Clause 2 of Article 367 of this Code, this time limit shall be extended but must not exceed two months.

2. A panel for review of appealed or protested decisions is composed of three judges, including one presiding judge assigned by the chief judge of the appeal court of the Supreme People’s Court. The review sessions shall be conducted like the petition-considering sessions prescribed in Article 369 of this Code.

3. The Review Panels shall be entitled to uphold or partially or entirely amend decisions of the provincial-level people’s courts, to suspend or stop the review of appeals or protests in cases where the involved parties withdraw their appeals or the procuracies withdraw their protests, or where there appear the grounds prescribed at Points a, b and c of Clause 1, Article 368 of this Code.

The decisions of the Supreme People’s Court shall be the final ones and take implementation effect.

Article 374.- Annulling recognition and enforcement decisions

1. In cases where they receive written notices from the Ministry of Justice saying that foreign competent agencies are considering the cancellation or suspension of foreign arbitral awards which have been decided for enforcement in Vietnam, the heads of the civil judgment-executing agencies shall issue decisions to suspend the enforcement of the foreign arbitral awards and send such decisions to the courts which have issued the decisions to recognize and permit the enforcement in Vietnam of, foreign arbitral awards.

The heads of the civil judgment-executing agencies may apply guarantee measures necessary for the continued enforcement of the foreign arbitral awards if so requested by the judgment creditors being individuals, agencies or organizations.

2. Immediately after receiving the written notices from the Ministry of Justice saying that foreign competent agencies have annulled or suspended the enforcement of foreign arbitral awards, the Vietnamese courts which have issued decisions to recognize the foreign arbitral awards and permit their enforcement in Vietnam shall issue decisions to cancel such decisions and send them to the judgment-executing agencies.

Right after receiving the courts’ decisions, the heads of civil judgment-executing agencies shall issue decisions to stop the enforcement of the foreign arbitral awards.