Chương I Luật trọng tài thương mại 2010: Những quy định chung

Chapter 1

GENERAL PROVISIONS

Article 1. Scope of regulation

This Law provides for the jurisdiction of commercial arbitration, forms of arbitration, arbitration institutions and arbitrators; arbitration order and procedures; rights, obligations and responsibilities of parties in arbitral proceedings; courts’ jurisdiction over arbitral activities; organization and operation of foreign arbitrations in Vietnam, and enforcement of arbitral awards.

Article 2. Arbitration's jurisdiction to settle disputes

1. Disputes among parties which arise from commercial activities.

2. Disputes among parties at least one of whom conducts commercial activities.

3. Other disputes among parties which are stipulated by law to be settled by arbitration.

Article 3. Interpretation of terms

In this Law, the terms below are construed as follows:

1. Commercial arbitration means a mode of dispute settlement agreed by the parties and to be conducted under this Law.

2. Arbitration agreement means an agreement between the parties to settle by arbitration a dispute which may arise or has arisen.

3. Disputing parties means Vietnamese and foreign individuals, agencies or organizations that participate in arbitral proceedings in the capacity as plaintiffs and defendants.

4. Dispute involving foreign elements means a dispute arising in commercial relationships or other legal relationships involving foreign elements as defined in the Civil Code.

5. Arbitrator means a person selected by the parties or designated by an arbitration center or a court to settle a dispute under this Law.

6. Institutional arbitration means a form of dispute settlement at an arbitration center under this Law and rules of proceedings of such arbitration center.

7. Ad hoc arbitration means a form of dispute settlement under this Law and the order and procedures agreed by the parties.

8. Venue for dispute settlement means a place in which an arbitration council settles disputes which is selected as agreed by the parties or as decided by the arbitration council if the parties have no such agreement. If a venue for dispute settlement is within the Vietnamese territory, the award must be regarded as having been pronounced in Vietnam regardless of the place in which the arbitration council holds a meeting to issue such award.

9. Arbitral decision means a decision of the arbitration council issued during the process of dispute settlement.

10. Arbitral award means a decision of the arbitration council settling the entire dispute and terminating the arbitral proceedings.

11. Foreign arbitration means an arbitration formed under a foreign law on arbitration and selected as agreed by the parties to settle a dispute outside or within the Vietnamese territory.

12. Foreign arbitral award means an award pronounced by a foreign arbitration outside or within the Vietnamese territory which is selected as agreed by the parties to settle their disputes.

Article 4. Principles of dispute settlement by arbitration

1. Arbitrators must respect the parties agreement if such agreement neither breaches prohibitions nor contravenes social ethics.

2. Arbitrators must be independent, objective and impartial and shall observe law.

3. Disputing parties are equal in their rights and obligations. The arbitration council shall create conditions for disputing parties to exercise their rights and fulfill their obligations.

4. Dispute settlement by arbitration shall be conducted in private, unless otherwise agreed by the parties.

5. Arbitral awards are final.

Article 5. Conditions for dispute settlement by arbitration

1. A dispute shall be settled by arbitration if the parties have an arbitration agreement. An arbitration agreement may be made either before or after a dispute arises.

2. When one of the parties being an individual to an arbitration agreement dies or loses his/her act capacity, such arbitration agreement remains valid for his/her heir or representative at law. unless otherwise agreed by the parties.

3. When one of the parties being an institution to an arbitration agreement has to terminate its operation, goes bankrupt, or is dissolved, consolidated, merged, divided, split up or reorganized, such arbitration agreement remains valid for an institution that takes over the rights and obligations of the institution to such arbitration agreement, unless otherwise agreed by the parties.

Article 6. Courts' refusal to accept cases in which there is an arbitration agreement

In case the disputing parties have reached an arbitration agreement but one party initiates a lawsuit at a court, the court shall refuse to accept the case, unless the arbitration agreement is invalid or unrealizable.

Article 7. Identification of courts which have competence over arbitral activities

1. In case the parties have agreed to select a specific court, the competent court is the selected court.

2. In case the parties have no agreement to select a court, the court's competence shall be determined as follows:

a/ For the designation of arbitrators to form an ad hoc arbitration council, the competent court is the court in the place in which the defendant resides if the defendant is an individual or the place in which the defendant has its head office if the defendant is an institution. If there arc many defendants, the competent court is the court in the place in which one of these defendants resides or has its head office.

If the defendant resides or has its head office in a foreign country, the competent court is the court in the place in which the plaintiff resides or has its head office;

b/ For the change of an arbitrator of an ad hoc arbitration council, the competent court is the court in the place in which the arbitration council settles the dispute:

c/ For a request to settle a complaint about the arbitration council's decision that the arbitration agreement was invalid or unrealizable or about the arbitration council's jurisdiction, the competent court is the court in the place in which the arbitration council issued such decision;

d/ For a request for the court to collect evidence, the competent court is the court in the place in which exists evidence to be collected;

e/ For a request for the court to apply interim urgent measures, the competent court is the court in the place in which such measures need to be applied;

f/ For summoning a witness, the competent court is the court in the place in which the witness resides;

g/ For a request to cancel an arbitral award or register an ad hoc arbitral award, the competent court is the court in the place in which the arbitration council pronounced such arbitral award.

3. Courts with competence over arbitral activities specified in Clauses 1 and 2 of this Article are people's courts of provinces or centrally run cities.

Article 8. Identification of judgment enforcement agencies competent to enforce arbitral awards or decisions of arbitration councils on the application of interim urgent measures

1. Civil judgment enforcement agencies competent to enforce arbitral awards are civil judgment enforcement agencies of provinces or centrally run cities in which arbitration councils issue the awards.

2. Civil judgment enforcement agencies competent to enforce decisions of arbitration councils on the application of interim urgent measures are civil judgment enforcement agencies of provinces or centrally run cities in which the interim urgent measures need to be applied.

Article 9. Negotiation and conciliation during arbitral proceedings

During arbitral proceedings, the parties may freely negotiate and agree with each other on the settlement of their dispute or request an arbitration council to conduct conciliation for the parties to reach agreement on the settlement of their dispute.

Article 10. Language

1. For disputes involving no foreign element, the language to be used in arbitral proceedings is Vietnamese, except disputes to which at least one party is a foreign-invested enterprise. When a disputing party cannot use Vietnamese, it may use an interpreter.

2. For disputes involving foreign elements or disputes to which at least one party is a foreign-invested enterprise, the parties shall reach agreement on the language to be used in arbitral proceedings. If they have no such agreement, the arbitration council shall decide on the language to be used in arbitral proceedings.

Article 11. Venues for dispute settlement by arbitration

1. The parties may reach agreement on venues for dispute settlement. If no agreement is made, the arbitration council shall decide on such venue. A venue for dispute settlement may be within or outside the Vietnamese territory.

2. Unless otherwise agreed by the parties, the arbitration council may hold a meeting at a venue regarded as appropriate for its members to exchange opinions, for taking witnesses' statements, consulting experts or for assessing goods, assets or other documents.

Article 12. Sending of notices and order of sending

Unless otherwise agreed by the parties or provided by the arbitration center's rules of proceedings, the mode and order of sending notices in arbitral proceedings arc specified as follows:

1. Each party's written explanations, correspondence papers and other documents shall be sent to the arbitration center or arbitration council in sufficient copies so that every member of the arbitration council and the other party has one copy, and one copy is preserved at the arbitration center;

2. Notices and documents to be sent by the arbitration center or arbitration council to the parties shall be sent to the addresses or to their representatives at the correct addresses notified by the parties;

3. Notices and documents may be sent by the arbitration center or arbitration council directly, in registered or ordinary mails, by fax. telex, telegram, email, or other modes which acknowledge such sending;

4. Notices and documents sent by the arbitration center or arbitration council will be regarded as having been received on the date the parties or their representatives receive them or if such notices and documents have been sent under Clause 2 of this Article:

5. The time limit for receiving notices and documents shall be counted from the date following the date such notices and documents are regarded as having been received. If the following date falls on a holiday or day off under regulations of the country or territory in which the notices and documents have been received. this time limit shall be counted from the subsequent first working day. If the last day of this time limit falls on a holiday or day off under regulations of such country or territory, the time of expiration is the end of the subsequent first working day.

Article 13. Loss of the right to protest

A party that detects to have a violation of this Law or the arbitration agreement but continues to conduct arbitral proceedings and does not protest the violation within the time limit set by this Law will lose its right to protest at the arbitration or court.

Article 14. Applicable laws for dispute settlement

1. For a dispute involving no foreign element, the arbitration council shall apply Vietnamese law for settling the dispute.

2. For a dispute involving foreign elements. the arbitration council shall apply the law selected by the parties. If the parties have no agreement on the applicable law, the arbitration council shall decide to apply a law it sees the most appropriate.

3. When the Vietnamese law or law selected by the parties contains no specific provisions concerning the dispute, the arbitration council may apply international practices for settling the dispute, provided such application or consequence of such application does not contravene the fundamental principles of Vietnamese law.

Article 15. State management of arbitration

1. State management of arbitration covers:

a/ Promulgating, and guiding the implementation of, legal documents on arbitration;

b/ Granting and revoking establishment licenses and operation registration papers of arbitration centers; or branches and representative offices of foreign arbitration institutions in Vietnam;

c/ Announcing lists of arbitrators of arbitration institutions operating in Vietnam;

d/ Propagating and disseminating the arbitration law; entering into international cooperation on arbitration; and guiding the training and retraining of arbitrators:

c/ Examining, inspecting, and handling violations of the arbitration law;

f/ Settling complaints and denunciations related to the activities specified at Points b, c. d and e of this Clause.

2. The Government shall perform the unified state management of arbitration.

3. The Ministry of Justice shall take responsibility before the Government for performing the state management of arbitration.

4. Provincial-level Justice Departments shall assist the Ministry of Justice in performing several tasks under the Government's regulations and this Law.