Chương XXXVII Bộ luật tố tụng dân sự 2015: Thủ tục xét đơn yêu cầu công nhận và cho thi hành tại việt nam phán quyết của trọng tài nước ngoài

Chapter XXXVII

PROCEDURES FOR CONSIDERATION OF APPLICATIONS FOR RECOGNITION AND ENFORCEMENT IN VIETNAM OF FOREIGN ARBITRATOR’S AWARD

Article 451. Time limit for submission of applications for recognition and enforcement

1. Within 03 years from the day on which the foreign arbitrator’s award takes legal effect, the judgment creditors and persons with relevant legitimate rights and interests or their lawful representatives may submit their application to Vietnam’s Ministry of Justice according to provisions of International treaty to which the Socialist Republic of Vietnam is a signatory or to a competent Vietnam’s Court specified in this Code, in case the International treaty to which the Socialist Republic of Vietnam is a signatory does not provide for or there is no relevant International treaty provisions, to request the Court to not recognize and enforce such award.

2. In cases where the applicant can prove that he/she cannot submit the application within the time limit specified in clause 1 of this Article due to a force majeure event or an objective obstruct, the time period when such force majeure event or objective obstruct occurs shall not be included in the time limit for submission of application.

Article 452. Application for recognition and enforcement in Vietnam of foreign arbitrator’ award

1. An application for recognition and enforcement in Vietnam of foreign arbitrator’ award must contain the following principal details:

a) Full names and addresses of residence places or work places of the judgment creditors or their lawful representatives in Vietnam; if the judgment creditors are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed;

b) Full names and addresses of residence places or work places of the judgments debtors; if the judgments debtors are agencies or organizations, the full names and addresses of their head-offices must be fully inscribed; in cases where the judgment debtors being individuals do not have residence places or work places in Vietnam or the judgment debtors being agencies or organizations do not have head-offices in Vietnam, their applications must also specify the addresses of the places where exist the properties and assorted properties relating to the enforcement in Vietnam of foreign arbitrator’s award;

c) Requests of the judgment creditors.

2. Applications in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

Article 453. Papers and documents enclosed with the applications

1. The applications shall be enclosed with papers and documents specified in the International treaties to which the Socialist Republic of Vietnam is a signatory; in case where there is no International treaty or the International treaty does not provide for the case, the following papers and documents shall be enclosed with the application:

a) The originals or certified true copies of the foreign arbitrator’s award;

b) The originals or certified true copies of arbitration agreements between parties.

2. Papers and documents enclosed with the application that are in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.

Article 454. Forwarding dossiers to Courts

1. Within 05 working days from the day on which the application and enclosed papers and documents specified in Article 453 of this Code, the Ministry of Justice shall forward them to the competent Court.

2. If the Ministry of Justice has forwarded the dossier to the Court and received notification from a competent agency of the foreign country informing that the case is being considered or the enforcement of the foreign arbitrator’s award has been canceled or terminated in such country, the Ministry of Justice must immediately notify in writing to the Court.

Article 455. Acceptance of dossiers

Within 05 working days from the day on which the dossiers sent from the Ministry of Justice are received or from the day on which the applications and accompanying papers and documents sent from the applicants are received, the competent Courts shall base themselves on Article 363, 364 and 365 of this Code to consider and accept the dossiers and notify in writing such to the judgment creditors, the judgment debtors or their lawful representatives in Vietnam, the Procuracies of the same levels and the Ministry of Justice.

Article 456. Forwarding dossiers to other Courts, settlement of disputes about jurisdiction

If after accepting the case, the Courts deem that the settlement of application for recognition and enforcement in Vietnam the foreign arbitrator’s award falls within the jurisdiction of another Courts of Vietnam, then the Court which has accepted the case shall issue a decision to forward the dossier to the jurisdictional Court and cross out such request on its acceptance book. Such decision shall be immediately sent to the procuracy of the same level and the involved parties.

Involved parties may file an appeal or the procuracy may file an appeal against such decision within 03 working days from the day on which such decision is received. Order and procedures for processing the appeals or settling disputes about jurisdiction shall comply with regulations in Article 41 of this Code.

Article 457. Preparation for consideration of applications

1. Within 02 months from the date of acceptance, on a case-by-case basis, the Court shall issue one of the following decisions:

a) To suspend the consideration of the application;

b) To terminate the consideration of the application;

c) To open a meeting for considering the application.

Within the time limit for preparation for considering the application, the Court may request the judgment creditors to explain the unclear information in the application. In such case, the time limit for preparation for considering the application shall be extended for not exceeding 02 months.

Within 20 days after issuing a decision to open a meeting for considering the application, the Court shall open the meeting. Within 15 days before the meeting is opened, the Court shall transfer the dossier to the procuracy of the same level for study; past such time period, the procuracy shall return the dossier to the Court so that the meeting for considering the application can be opened.

2. The Court shall issue the decision to suspend the consideration of the application in any of the following circumstances:

a) Foreign arbitrator’s award is being re-considered by a competent agency of the country where the award is made;

b) The judgment debtor being individual has died or the judgment debtor being agency/organization has been merged, amalgamated, divided or dissolved without an agency, organization or individual to inherit his/her/its procedure rights and obligations;

c) The judgment debtor being individual lacks of legal capacity but his/her lawful representatives has not been determined;

Within the time period of termination, the Judge assigned to settle the case shall be still responsible for resolving the application.

When the decision to suspend the resolution of the application has been issued as prescribed in this clause, the Judge shall be responsible for supervising and expediting agencies, organizations and individuals to eliminate the causes for such suspension as soon as possible to promptly continue processing the application. When the causes for the suspension no longer exist, the Judge shall make a decision to continue processing the application.

3. The Court shall issue the decision to terminate the consideration of the application in any of the following circumstances:

a) The judgment creditor withdraws his/her application or the judgment debtor has voluntarily enforce the foreign arbitrator’s award;

b) The judgment debtor being individual has died but his/her rights and obligations have not been inherited;

c) The judgment debtor being agency/organization has been dissolved or bankrupted but its rights and obligations have been settled according to Vietnam’s law;

d) The judgment debtor being agency/organization has been dissolved or bankrupted but its procedure rights and obligations have not been inherited;

dd) The Court cannot determine the places where exist properties in Vietnam of the judgment debtor according to the request of the judgment creditor of the arbitral award.

Article 458. Meetings for considering applications

1. The consideration of an application shall be conducted at a meeting by a Panel consisting of 3 Judges, one of whom shall act as the presiding Judge under the assignment of the Chief Justice of the Court.

2. The procurator of the procuracy of the same level shall attend the meeting; if the procurator is absent, the meeting shall be still conducted by the Court.

3. The meeting shall be conducted in the presence of the judgment creditors, judgment debtors or their lawful representatives; if any of them is absent for the first time with plausible reasons, the meeting must be postponed.

The consideration of the application shall still proceed if the judgment creditors or their lawful representatives, or the judgment debtors or their lawful representatives have filed their applications to the Courts for consideration of the applications in their absence or if their lawful representatives have been duly summoned twice but are still absent.

The Panel shall issue decisions to terminate the processing of the application if the judgment creditors or their lawful representatives have been duly summoned twice but are still absent or in any of the circumstances specified in clause 3 Article 457 of this Code.

4. When considering the application for recognition and enforcement, the Panel shall not conduct re-trial over the dispute when the foreign arbitrator’s award has been issued. The Court shall be only entitled to check and compare the foreign arbitrator’s award and accompanying papers and documents with provisions of Chapter XXXV and Chapter XXXVII of this Code, other relevant Vietnam's law provisions and International treaties to which the Socialist Republic of Vietnam is a signatory to form the basis for the issuance of decision to recognize and enforce such award.

5. After checking the application and accompanying papers and documents and listening to opinions of the summoned people and of the procurator, the Panel shall discuss and make decision under the majority rule.

The Panel shall be entitled to make a decision to recognize and enforce in Vietnam the foreign arbitrator’s award or decision to not recognize a foreign arbitrator’s award.

Article 459. Cases of non-recognition

1. The Court shall not recognize a foreign arbitrator’s award when deeming that the evidences provided by the judgment debtors to the Court for appealing against the application for recognition are well-grounded and the arbitrator’s award falls within one of the following cases:

a) The parties of the arbitration agreement do not have capacity to conclude such agreement according to law applicable to each party;

b) The arbitration agreement is not legally effective according to the law of a country which is chosen to be applied or according to the law of where the award is made in case the parties cannot choose a law to be applied to such agreement;

c) The judgment debtors being agencies, organizations and individuals are not promptly and conformably notified of the appointment of arbitrator officer and of procedures for processing the disputes at foreign arbitrator, or due to other plausible reasons, such agencies, organizations and individuals cannot exercise their procedure rights;

d) The foreign arbitrator’s award over a dispute is not requested to be settled by any parties or exceeds the request of parties of the arbitration agreement. If it is able to separate the parts of the decision on the matter which are requested and not requested to be settled at foreign arbitrator, the decision on the matter requested to be settled may be recognized and enforced in Vietnam;

dd) Compositions of foreign arbitrator and/or procedures for settlement of disputes conducted by foreign arbitrator is not conformable to the arbitration agreement or to the law of the country where the foreign arbitrator’s award has been made, in case the arbitration agreement does not provide for such matters;

e) The foreign arbitrator’s award has not taken compulsory legal effect on parties;

g) The enforcement of the foreign arbitrator’s award has been canceled or terminated by a competent agency of the country where such award is made or the home country of the law that is applied.

2. The foreign arbitrator’s award shall not be recognized is the Vietnam’s Court deems that:

a) According to Vietnam’s law, the dispute shall not be settled according to arbitral procedures;

b) The recognition and enforcement in Vietnam of foreign arbitrator’s award are contrary to basic principles of law of the Socialist Republic of Vietnam.

Article 460. Sending of decisions of Courts

1. Within 05 working days from the day on which the decision to suspend or terminate the resolution of the application provided for in clauses 2 and 3 Article 457 of this Code is issued, the Court shall send such decision to involved parties or their lawful representatives, the Ministry of Justice and procuracy of the same level.

2. Within 15 days from the day on which the decision to recognize and enforce or to not recognize in Vietnam the foreign arbitrator’s award specified in clause 5 Article 458 of this Code is issued, the Court shall send such decision to involved parties or their lawful representatives, the Ministry of Justice and the procuracy of the same level. If the involved parties living overseas do not have lawful representatives in Vietnam and the Court has issued the decision in their absence according to regulations in clause 3 Article 458 of this Code, the Court shall send such decision to them by post or via the Ministry of Justice according to provisions of International treaty to which the Socialist Republic of Vietnam is a signatory.

3. The sending of decisions of the Court to involved parties shall comply with methods specified in Article 474 of this Code.

Article 461. Appeals

1. Within 07 days from the day on which the Court issue the decision specified in clauses 2 and 3 Article 457 or clause 5 Article 458 of this Code, involved parties and their legal representatives may file an appeal against such decision; if the involved parties and their lawful representatives did not attend the meeting for considering the application, the time limit for filing an appeal shall be counted from the day on which they receive such decision. The appellate petition must clearly state the reasons for the appeal and the appellate requests.

In cases where there are force majeure events or objective obstacles that the involved parties or their lawful representatives can not file an appeal within such time limit, the time when the force majeure events or objective obstacles occur shall not be included in the time limit for appeal.

2. The Chairpersons of the People’s Procuracies of provinces or Chairpersons of the Collegial People’s Procuracies may file appeals against the decisions of Courts specified in clauses 2 and 3 Article 457 and clause 5 Article 458 of this Code.

Time limit for filing an appeal is 07 days (applicable to the People’s Procuracies of provinces) or 10 days (applicable to Collegial People’s Procuracies) from the day on which the procuracy receives the decision.

Article 462. Consideration of appeals

1. Collegial People’s Court shall re-consider the decision of the People’s Court of province which is appealed against within 01 month from the day on which the documents are received; if explanation is required as prescribed in clause 1 Article 457 of this Code, such time limit shall be extended for not exceeding 02 months.

2. Members of the Panel in charge of considering a decision that is appealed against shall be comprised of 3 Judges, one of which shall be the presiding Judge as assigned by the Chief Justice of Collegial People’s Court. A meeting for re-considering a decision that is appealed against shall be conducted as the one for considering the application specified in Article 458 of this Code.

3. The Panel for considering the decision being appealed against shall have the following powers:

a) To uphold the decision of the first-instance Court;

b) To modify partially of wholly the decision of the first-instance Court;

c) To suspend the settlement of the appeal;

d) To terminate the settlement of the appeal;

dd) To repeal the decision of the first-instance Court and forward the dossiers to such first-instance Court for re-settlement according to first-instance procedures;

e) To repeal the first-instance decision and terminate the processing of the application when existing any of circumstances specified in clause 3 Article 457 of this Code.

4. The Panel for considering the decision being appealed against shall terminate the processing of an appeal in the following cases:

a) The involved party withdraws wholly his/her appeal or the procuracy withdraws wholly its appeal;

b) The involved party filing the appeal has been duly summoned twice but is still absent without an application for resolution in his/her absence.

If the involved party filing appeal withdraws wholly his/her appeal or the procuracy withdraws wholly its appeal before the appellate Court make a decision to open a meeting for considering such appeal, the Judge assigned to preside over the meeting shall make a decision to terminate the resolution of such appeal. If the involved party filing appeal withdraws wholly his/her appeal or the procuracy withdraws wholly its appeal when the appellate Court has made a decision to open a meeting for considering such appeal, appeal consideration Panel shall make a decision to terminate the resolution of such appeal.

In the following cases, the decision of the first-instance Court shall take legal effect from the day on which the appellate Court issues the decision to terminate the consideration of the appeal.

5. The Panel in charge of considering the decision being appealed against shall repeal the decision of the first-instance Court and forward the dossiers to such first-instance Court for re-processing according to first-instance procedures in the following cases:

a) The proving of the involved parties for protesting against the recognition of the foreign arbitrator’s award or the grounds for the first-instance Court to make a decision to recognize or to not recognize the foreign arbitrator’s award is unconformable to provisions of Chapter XXXV and Chapter XXXVII of this Code, other relevant provisions of Vietnam’s law and of International treaties to which the Socialist Republic of Vietnam is a signatory;

b) Members of the Panel in charge of considering the application of the first-instance Court is unconformable to provisions of Chapter XXXVII of this Code or is seriously contrary to regulations on procedures that affects lawful rights and interests of involved parties.

6. A decision of a Collegial People’s Court shall take legal effect from the day on which it is issued and may be appealed according to cassation or reopening procedures according to provisions of this Code.

Article 463. Termination of enforcement, repealing of decisions to recognize and enforce a foreign arbitrator’ award

1. Immediately when the written notification of a competent foreign agency of that the application for repealing or termination of the enforcement of foreign arbitrator’s award is being considered sent by involved parties or the Ministry of Justice is received, the Court that has issued the decision to recognize and enforce in Vietnam such award shall request the Head of Civil judgment enforcement agency to issue decision to suspend the enforcement of the award.

Immediately when the request of the Court has been received, Head of the Civil judgment enforcement agency shall issue a decision to suspend the enforcement of the award and send such decision to the Court that has issued the decision to recognize and enforce in Vietnam the foreign arbitrator’s award and to involved parties and persons with relevant interests and duties.

Head of the civil judgment enforcement agency may take security measures that are necessary for the continuing of the enforcement of foreign arbitrator’s ward according to law on enforcement of civil judgment at the request of agencies, organizations and individuals being judgment creditors.

2. Immediately when the written notification of the foreign competent authority of the repealing or termination of the enforcement of a foreign arbitrator’s award has been received, Vietnam’s Court that has issued the decision to recognize and enforce in Vietnam such foreign arbitrator’s award shall issue a decision to repeal such decision and send such decision to involved parties, persons with relevant interests and duties, and the civil judgment enforcement agency.

Immediately when the decision of the Court has been received, Head of the Civil judgment enforcement agency shall issue a decision to terminate the enforcement of the foreign arbitrator’s award.