Chương VI Luật trọng tài thương mại 2010: Hội đồng trọng tài

Chapter VI

ARBITRATION COUNCIL

Article 39. Composition of an arbitration council

1. An arbitration council may be composed of one or more arbitrators as agreed by the parties.

2. When the parties fail to reach agreement on the number of arbitrators, an arbitration council shall be composed of three arbitrators.

Article 40. Formation of an arbitration council at an arbitration center

Unless otherwise agreed by the parties or provided by the arbitration center's rules of proceedings, the formation of an arbitration council is specified as follows:

1. Within 30 days after receiving a petition and request for selecting an arbitrator sent by the arbitration center, the defendant shall select an arbitrator and notify such to the arbitration center or request the arbitration center's chairman to designate an arbitrator; otherwise, within 7 days after the expiration of the time limit specified in this Clause, the arbitration center's chairman shall designate an arbitrator for the defendant;

2. For a dispute involving many defendants, within 30 days after receiving a petition sent by the arbitration center, the defendants shall agree to select an arbitrator or to request designation of an arbitrator. If the defendants cannot select an arbitrator, within 7 days after the expiration of the time limit specified in this Clause, the arbitration center's chairman shall designate an arbitrator for the defendants;

3. Within 15 days after being selected by the parties or designated by the arbitration center's chairman, the arbitrators shall elect another arbitrator as the chairman of the arbitration council. Past this time limit, if this election cannot take place, within 7 days the arbitration center's chairman shall designate the chairman of the arbitration council:

4. When the parties agree that their dispute shall be settled by a sole arbitrator but fail to select such arbitrator within 30 days after the defendant receives a petition, the arbitration center's chairman shall, at the request of one party or all parties and within 15 days after receiving such request, designate a sole arbitrator.

Article 41. Formation of ad hoc arbitration councils

Unless otherwise agreed by the parties, the formation of an ad hoc arbitration council is specified as follows:

1. Within 30 days after receiving the plaintiff's petition, the defendant shall select an arbitrator and notify the selection to the plaintiff. Past this lime limit, if the defendant fails to notify the plaintiff of the name of the selected arbitrator and the parties do not otherwise agree on designation of an arbitrator, the plaintiff may request a competent court to designate an arbitrator for the defendant;

2. For a dispute involving many defendants, these defendants shall agree to select an arbitrator within 30 days after receiving the plaintiff's petition and enclosed documents. Past this time limit, if the defendants cannot select an arbitrator and the parties do not otherwise agree on designation of an arbitrator, one party or all parties may request a competent court to designate an arbitrator for the defendants;

3. Within 15 days after being selected by the parties or designated by the court, the arbitrators shall elect another arbitrator as the chairman of the arbitration council. When the arbitration council's chairman cannot be elected and the parties do not otherwise agree, they may request a competent court to designate the chairman of the arbitration council;

4. When the parties agree that their dispute shall be settled by a sole arbitrator but fail to select such arbitrator within 30 days after the defendant receives a petition, if the parties do not agree to request an arbitration center to designate an arbitrator, the competent court shall, at the request of one party or all parties, designate a sole arbitrator.

5. Within 7 days after receiving the parties' request under Clause 1, 2, 3 or 4 of this Article, the president of the competent court shall assign a judge to designate an arbitrator and notify such to the parties.

Article 42. Change of arbitrators

1, An arbitrator shall refuse to settle a dispute and the parties may request change of an arbitrator to settle the dispute in the following cases:

a/ The arbitrator is a relative or representative of one party:

b/ The arbitrator has an interest related to the dispute;

c/ There is a clear ground to conclude that the arbitrator is neither impartial nor objective;

d/ The arbitrator was a conciliator, representative or lawyer of one party before the dispute is brought to arbitration for settlement. unless such is consented in writing by the parties.

2. After being selected or designated, the arbitrator shall notify in writing the arbitration center or arbitration council and parties of the circumstances which may affect his/her objectivity or impartiality.

3. For a dispute to be settled at an arbitration center, pending the formation of an arbitration council, the arbitration center's chairman shall decide on the change of an arbitrator. If the arbitration council has been formed, such change shall be decided by other members of the arbitration council. When these members cannot make decision or if the arbitrators or the sole arbitrator refuse(s) to settle the dispute, the arbitration center's chairman shall decide on change of the arbitrator.

4. For a dispute to be settled by an ad hoc arbitration council, change of an arbitrator shall be decided by other members of the arbitration council. When these members cannot make decision or if the arbitrators or the sole arbitrator refuse(s) to settle the dispute, within 15 days after receiving a request from the arbitrator(s) and one disputing party or all disputing parties, the president of the competent court shall assign a judge to decide on change of the arbitrator.

5. The decision of the arbitration center's chairman or court in the cases specified in Clauses 3 and 4 of this Article is final.

6. When the arbitrator cannot continue participating in the settlement of a dispute due to force majeure circumstances or objective obstacles or is changed, the selection or designation of a new arbitrator comply with the order and procedures specified in this Law.

7. After consulting the parties, the newly formed arbitration council may re-consider the matters presented at the former arbitration council's previous dispute settlement meetings.

Article 43. Consideration of invalid or unrealizable arbitration agreements, jurisdiction of an arbitration council

1. Before considering the circumstances of a dispute, the arbitration council shall consider the validity of the arbitration agreement and whether such agreement can be realized, and consider its jurisdiction. If the dispute falls within its jurisdiction, the arbitration council shall settle it under this Law. If the dispute falls beyond its jurisdiction or the arbitration agreement is invalid or unrealizable, the arbitration council shall decide to terminate the dispute settlement and immediately notify the parties thereof.

2. In the course of dispute settlement, if detecting that the arbitration council acts ultra vires, the parties may lodge a complaint with the arbitration council. The arbitration council shall consider and decide on this issue.

3. When the parties agree to have their dispute settled by a specific arbitration center, but such center has terminated its operation without any other arbitration institution succeeding it. the parties may agree to select another arbitration center: otherwise, they may bring their dispute to court for settlement.

4. When the parties agree to select an ad hoc arbitrator but at the time their dispute arises, the arbitrator cannot conduct the settlement of the dispute due to force majeure circumstances or objectives obstacles, the parties may agree to select another arbitrator in replacement; otherwise, they may bring their dispute to court for settlement.

5. When the parties have an arbitration agreement but fail to indicate the form of arbitration or cannot identify a specific arbitration institution, if a dispute arises, the parties shall agree again on the form of arbitration or a specific arbitration institution to settle the dispute. If no agreement can be reached, the form of arbitration or an arbitration institution to settle the dispute shall be selected at the plaintiff's request.

Article 44. Complaints and settlement of complaints about an arbitration council's decision on the non-existence, invalidation or unrealizableness of an arbitration agreement, and jurisdiction of the arbitration council

1. If disagreeing with any decision of the arbitration council specified in Article 43 of this Law. within 5 working days after receiving this decision, the parties may file a request with a competent court to re-consider such decision. The complainant shall concurrently notify such complaint to the arbitration council.

2. A complaint must contain:

a/ Date of making;

b/ Name and address of the complainant;

c/ Details of the request.

3. A complaint shall be enclosed with copies of the petition, arbitration agreement and arbitration council's decision. Enclosed papers in a foreign language shall be translated into Vietnamese and their translations be legally certified.

4. Within 5 working days after receiving a complaint, the president of the competent court shall assign a judge to consider and settle the complaint. Within 10 working days after being assigned, such judge shall consider the complaint and make a decision. The court's decision is final.

5. While the court is processing the complaint, the arbitration council may continue the dispute settlement.

6. When the court decides that the dispute falls beyond the arbitration council's jurisdiction, or there is no arbitration agreement or the arbitration agreement is invalid or unrealizable, the arbitration council shall decide to terminate the dispute settlement. Unless otherwise agreed by the parties, they may bring the dispute to a court within the statute of limitations specified by law. The period from the date the plaintiff initiates a lawsuit at arbitration to the date the court decides to accept the dispute is not included in the statute of limitations for initiating a lawsuit.

Article 45. The arbitration council's jurisdiction to verify matters

In the course of dispute settlement, an arbitration council may meet or exchange with one party in the presence of the other party in appropriate forms to clarify matters related to the dispute. The arbitration council may itself or at the request of one party or all parties study a matter from a third person in the presence of the parties or after notifying such to the parties.

Article 46. The arbitration council's jurisdiction to collect evidence

1. The parties have the right and obligation to provide evidence to the arbitration council to prove matters related to their dispute.

2. At the request of one party or all parties, the arbitration council may request witnesses to provide information and documents relating to the dispute settlement.

3. The arbitration council may itself or at the request of one party or all parties request an appraisal and valuation of assets in the dispute as a basis for settling the dispute. Appraisal and valuation expenses shall be advanced by the appraisal and valuation requester or allocated by the arbitration council.

4. The arbitration council may itself or at the request of one party or all parties consult experts. Expert expenses shall be advanced by the consultation requester or allocated by the arbitration council.

5. If the arbitration council, one party or all parties have applied necessary measures to collect evidence but cannot itself/themselves collect evidence, they may propose in writing the competent court to request agencies, organizations and individuals to provide legible, audible or visible documents or other objects related to the dispute. Such a proposal must clearly indicate the circumstances of the dispute, evidence to be collected, reasons for the failure to collect evidence, names and addresses of agencies, organizations and individuals that manage and preserve such evidence.

6. Within 7 working days after receiving a proposal for evidence collection, the president of the competent court shall assign a judge to consider and deal with this proposal. Within 5 working days after being assigned, such judge shall request in writing agencies, organizations and individuals that are managing and preserving evidence to provide it for the court and send such proposal to the same-level procuracy for the latter to perform its functions and tasks under law.

Agencies, organizations and individuals that are managing and preserving the evidence shall fully and promptly provide such evidence at the court's request within 15 days after receiving the request.

Within 5 working days after receiving the evidence provided by agencies, organizations and individuals, the court shall notify such to the arbitration council and requester for delivery and receipt of evidence.

Past this time limit, if agencies, organizations and individuals fail to provide the evidence as requested, the court shall immediately notify such to the arbitration council and requester and. at the same time, request in writing competent agencies or organizations to handle the failure under law.

Article 47. The arbitration council's jurisdiction to summon witnesses

1. At the request of one party or all parties and when necessary, the arbitration council may request witnesses to appear at meetings to settle the dispute. Witness expenses shall be borne by the requester for such summon or allocated by the arbitration council.

2. If a witness, though having been properly summoned by the arbitration council, fails to attend the meeting without a plausible reason and his/her absence obstructs the dispute settlement, the arbitration council shall request in writing the competent court to decide to summon the witness to attend the arbitration council's meeting. Such request must clearly indicate the circumstances of the dispute; name and address of the witness; reason for summoning; and time and place for the witness to attend the meeting.

3. Within 7 working days after receiving the arbitration council's written request to summon the witness, the president of the competent court shall assign a judge to consider and deal with such request. Within 5 working days after being assigned, such judge shall issue a decision to summon the witness.

A witness-summoning decision must clearly indicate the name of the arbitration council requesting such summoning; circumstances of the dispute; name and address of the witness; and time and place for the witness lo attend the meeting.

The court shall immediately send this decision to the arbitration council, the witness, and concurrently lo the same-level procuracy for the latter to perform its functions and tasks under law.

The witness shall strictly observe the court's decision.

Witness expenses comply with Clause 1 of this Article.