Nghị định 25/2004/NĐ-CP Hướng dẫn Pháp lệnh Trọng tài Thương mại

DECREE

DETAILING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE ORDINANCE ON COMMERCIAL ARBITRATION

THE GOVERNMENT

Pursuant to the December 25, 2001 Law on Organization of the Government;
Pursuant to the February 25, 2003 Ordinance on Commercial Arbitration;
At the proposal of the Minister of Justice,

DECREES:

Chapter I

GENERAL PROVISIONS

Article 1.- Scope of regulation

This Decree details the implementation of a number of articles of the Ordinance on Commercial Arbitration (hereinafter called the Ordinance for short) regarding the competence of commercial arbitration; the order and procedures for the establishment, registration and termination of operation of Arbitration Centers as well as those for the establishment of branches and representatives offices thereof; court fees related to arbitration; handling of violations and State management over arbitration.

Article 2.- Competence of commercial arbitration

Commercial arbitration shall have the competence to handle disputes arising in commercial activities defined in Clause 3, Article 2 of the Ordinance with the disputing parties being business individuals or business organizations.

Disputes shall be settled through arbitration if the involved parties reach an arbitration agreement before or after the disputes arise.

Article 3.- Encouragement for the settlement of disputes through arbitration

The State encourages the settlement of disputes through arbitration according to the provisions of the Ordinance and this Decree and creates conditions for the development of commercial arbitration activities in compatibility with the country’s socio-economic development situation and requirements.

Chapter II

ESTABLISHMENT, REGISTRATION AND TERMINATION OF OPERATION OF ARBITRATION CENTERS AS  WELL AS BRANCHES AND REPRESENTATIVE OFFICES THEREOF

Article 4.- Establishment of Arbitration Centers

1. Arbitration Centers shall be established in Hanoi, Da Nang and Ho Chi Minh city.

The Arbitration Centers which have been lawfully established before the effective date of the Ordinance shall be allowed to continue their operations under the provisions of the Ordinance and this Decree.

2. The establishment of Arbitration Centers other than those prescribed in Clause 1 of this Article must be based on the socio-economic development situation in localities and satisfy the conditions for the establishment of Arbitration Centers stipulated in Clause 2, Article 14 of the Ordinance.

3. The provisions of this Article shall not affect the setting up of Arbitration Councils by disputing parties according to Article 26 of the Ordinance.

Article 5.- Order and procedures for the establishment of Arbitration Centers

1. Founders who fully meet the conditions to act as arbitrators as prescribed in Article 12 of the Ordinance shall send two sets of dossier of application for the establishment of Arbitration Centers to the Ministry of Justice.

Such a dossier set shall include the following papers:

a/ The application for setting up the Arbitration Center with the contents prescribed in Clause 4, Article 14 of the Ordinance, the agreement on the appointment of a founder to be president of the Center and the signatures of all founders;

b/ Curriculum vitae, notarized or duly authenticated copies of university diplomas and written certifications by competent agencies and/or organizations of the founders’ actual professional practice for five years or more;

c/ The charter of the Arbitration Center;

d/ Written recommendation of Vietnam Lawyers’ Association.

2. Within 45 days after receiving the valid dossiers, the Minister of Justice shall grant establishment licenses and approve charters of the Arbitration Centers; and at the same time send a written notice enclosed with a copy of the licenses for establishment of Arbitration Centers to the Justice Services of the provinces or centrally run-cities (hereinafter referred collectively to as the provincial Justice Services) where the Arbitration Centers are headquartered. In case of refusal, the Ministry of Justice must reply in writing, clearly stating the reasons therefor.

3. The form of the licenses for establishment of Arbitration Centers shall be issued by the Ministry of Justice.

Article 6.- Appellations of Arbitration Centers

1. The appellations of Arbitration Centers shall be selected and agreed upon by their founders, which must contain the phrase “Arbitration Center,” not be identical or cause confusion with the appellations of other Arbitration Centers which have been granted establishment licenses, and not contravene the nations’ historical traditions, culture, morality and fine customs.

2. Arbitration Centers may have transaction names. Arbitration Centers may have their symbols, but must not use the national flag, the Party’s banner, the national emblem, pictures of leaders and Vietnamese currency as their symbols.

Article 7.- Registration of operation of Arbitration Centers

1. Within 30 days after receiving the establishment licenses, Arbitration Centers shall make operation registration at the provincial Justice Services of the localities where they are headquartered.

2. A dossier of operation registration includes the following papers:

a/ The application for operation registration, clearly stating the expected location of the Arbitration Center;

b/ The notarized or duly authenticated copy of the establishment license of the Arbitration Center;

c/ The list of arbitrators of the Arbitration Center.

3. Within seven days after receiving the valid dossiers, the provincial Justice Services shall have to grant the operation registration papers to the Arbitration Centers.

4. After being granted the operation registration papers, the Arbitration Centers shall proceed with the publication on newspapers as prescribed in Article 15 of the Ordinance and carry out the procedures for opening accounts and carving seals according to law provisions.

The Arbitration Centers shall be allowed to operate only after being granted the operation registration papers.

5. The form of the paper of registration of operation of Arbitration Centers shall be issued by the Ministry of Justice.

Article 8.- Alteration of the contents of establishment licenses and operation registration papers of Arbitration Centers

1. Arbitration Centers altering one of the following contents of the establishment licenses shall have to file written applications to the Ministry of Justice:

a/ Appellations;

b/ Operation fields.

2. Within 15 days after receiving the Arbitration Centers’ application for alteration of contents of their establishment licenses, the Ministry of Justice must reply in writing whether or not it approves the alteration, in case of disapproval, it must state the reasons therefor.

3. Within 15 days as from the effective date of the written approval of the alteration of the licenses’ contents, the Arbitration Centers must register the alteration at the provincial Justice Services where they have made the operation registration.

4. The Arbitration Centers changing their presidents, locations or lists of arbitrators shall have to notify the Ministry of Justice and the provincial Justice Services where they have made the operation registration thereof in writing within seven days as from the date such changes occur.

Article 9.- Branches of Arbitration Centers

1. Arbitration Centers may set up their branches inside or outside the provinces or centrally-run cities, where they are headquartered.

The Arbitration Centers’ branches are their dependent units which are tasked to perform all or part of the centers’ functions, including the task of an authorized representative. The operation of branches must conform with the operation fields stated in the establishment licenses and the operation registration papers of the Arbitration Centers.

2. Arbitration Centers shall have to bear responsibility for the operation of their branches. Arbitration Centers shall appoint an arbitrator to act as a branch’s head.

3. Arbitration Centers must register the operation of their branches at the provincial Justice Services of the localities where such branches are located.

A dossier of registration for operation of a branch includes the following papers:

a/ The application for operation registration, clearly stating the expected location of the branch;

b/ The notarized or duly authenticated copy of the establishment license and operation registration paper of the Arbitration Center;

c/ The decision of the Arbitration Center on the appointment of the branch’s head;

d/ The list of arbitrators of the branch.

Within seven days after receiving the valid dossiers, the provincial Justice Services shall have to grant the operation registration papers to the branches.

The Arbitration Centers’ branches shall be allowed to operate only after being granted the operation registration papers.

The form of the operation registration papers of the Arbitration Centers’ branches shall be issued by the Ministry of Justice.

4. Within seven days as from the date the branches are granted the operation registration papers, the Arbitration Centers shall have to notify the Ministry of Justice of the establishment of their branches in writing.

In cases where the Arbitration Centers set up branches outside the provinces or centrally-run cities where they are headquartered, within seven days as from the date the branches are granted the operation registration papers, the Arbitration Centers must notify the provincial Justice Services of the localities where they are headquartered of the establishment of their branches in writing.

5. The Arbitration Centers’ branches shall be allowed use seals according to law provisions.

6. Within 30 days as from the date the branches are granted the operation registration papers, their Arbitration Centers setting up branches shall have to publicize the establishment of the branches on the central daily newspapers or  newspapers of the localities where their branches’ operations are registered, for three consecutive issues.

7. The Arbitration Centers’ branches shall terminate their operation in the following cases:

a/ Under decisions of their Arbitration Centers;

b/ Upon the termination of the operation of the Arbitration Centers which have set up such branches;

c/ Having their operation registration papers withdrawn due to serious violations of the provisions of the Ordinance and this Decree.

The Arbitration Centers which have set up branches shall have to notify the Ministry of Justice and the provincial Justice Services of the localities where they are headquartered and the provincial Justice Services of the localities where the branches are located of the termination of their branches’ operations in writing; return the operation registration papers of the branches to the provincial Justice Services where the branches’ operations are registered; return the seals to competent agencies; and publicize the termination of their branches’ operations on central daily newspapers or newspapers of the localities where their branches’ operations are registered, for three consecutive issues.

Article 10.- Representative offices of Arbitration Centers

1. Arbitration Centers may set up representatives offices inside or outside the provinces or centrally-run cities, where they are headquartered.

The Arbitration Centers’ representative offices are their dependent units which are allowed to represent the Arbitration Centers in their transactions under authorization. Representative offices shall have their heads.

2. Arbitration Centers shall have to bear responsibility for the operations of their representative offices.

3. Within seven days after establishing representative offices, the Arbitration Centers shall have to notify the establishment of representative offices in writing to the provincial Justice Services of the localities where they are headquartered and the provincial Justice Services of the localities where the representative offices are located..

4. Representative offices shall terminate their operation under decisions of the Arbitration Centers. The Arbitration Centers shall have to notify the provincial Justice Services of the localities where they are headquartered and the provincial Justice Services of the localities where the representative offices are located of the termination of their representative offices’ operations within seven days before the date the representative offices are expected to terminate their operation.

Article 11.- Order and procedures for the termination of operation of Arbitration Centers under the provisions of their charters

1. In cases where the Arbitration Centers terminate their operation under the provisions of their charters, they must notify their operation termination in writing to the Ministry of Justice, Vietnam Lawyers’ Association and the provincial Justice Services where they have made the operation registration within 30 days before the expected time of operation termination; and publicize their operation termination on central daily newspapers or newspapers of the localities where they have made the operation registration for three consecutive issues.

2. Before the time of terminating their operation, the Arbitration Centers shall have to repay all their debts and finish all cases they have accepted, except for cases where otherwise agreed upon.

3. Within seven days after fulfilling the procedures prescribed in Clause 2 of this Article, the Arbitration Centers shall report on the completion of such procedures to the Ministry of Justice in writing.

Within seven days after receiving the Arbitration Centers’ reports, the Ministry of Justice shall issue decisions on the termination of the Arbitration Centers’ operation. The Arbitration Centers shall return their establishment licenses to the Ministry of Justice and their operation registration papers to the provincial Justice Services where they have made the operation registration and return their seals to competent agencies.

Article 12.- Order and procedures for the termination of operation of Arbitration Centers in cases of having their establishment licenses withdrawn

1. In cases where the Arbitration Centers have their establishment licenses withdrawn according to Clause 2, Article 18 of this Decree, within 60 days as from the date the decisions on the withdrawal of establishment licenses are issued, the Arbitration Centers shall have to repay all their debts and finish the cases they have accepted, except for cases where otherwise agreed upon.

2. Within 10 days as from the date the decisions on the withdrawal of establishment licenses are issued according to Clause 2, Article 18 of this Decree, the Arbitration Centers shall publicize the termination of their operation on central daily newspapers or newspapers of the localities, where they have made the operation registration, for three consecutive issues.

3. Within seven days after completing the procedures prescribed in Clause 1 of this Article, the Arbitration Centers shall have to reports on the completion of the above-stated procedures in writing to the Ministry of Justice, Vietnam Lawyers’ Association and the provincial Justice Services where they have made the operation registration; return the establishment licenses to the Ministry of Justice and the operation registration papers to the provincial Justice Services where they have made the registration operation; and return their seals to competent agencies.

Article 13.- Fees for the granting of licenses and alteration of the contents thereof and fees for registration of the operation of Arbitration Centers and  branches thereof

When submitting dossiers of application for the establishment of Arbitration Centers and the alteration of their establishment licenses’ contents as well as the registration of operation of Arbitration Centers and branches thereof, the applicants shall have to pay fees at the following levels:

1. Fee for granting a license for the establishment of an Arbitration Center: VND 500,000;

2. Fee for alteration of contents of an establishment license: VND 100,000;

3. Fee for registration of the operation of an Arbitration Center: VND 200,000;

4. Fee for registration of the operation of a branch: VND 100,000.

Article 14.- Court fees related to arbitration

1. When filing applications requesting the Courts to appoint arbitrators, replace arbitrators, review the Arbitration Councils’ decisions on arbitration agreements or the Arbitration Councils’ competence to handle the disputes, apply, alter or cancel interim urgent measures or cancel arbitral awards and when protesting against court decisions, the applicants shall have to pay fees.

Fee levels are prescribed as follows:

a/ For the request for the appointment or replacement of arbitrators by courts: VND 100,000;

b/ For the request for the review of the Arbitration Councils’ decisions on arbitration agreements or the Arbitration Councils’ competence to handle the disputes by courts: VND 300,000;

c/ For the request for the application, alteration or cancellation of interim urgent measures by courts: VND 500,000;

d/ For the request for the cancellation of arbitral awards by court: VND 500,000;

e/ For the protest against court decisions: VND 300,000.

2. Fees shall be paid in lump sum together with applications at courts where such applications are received.

Article 15.- Management and use of fees

The management and use of fees for the granting of licenses and  alteration of contents thereof, fees for the registration of the operation of Arbitration Centers and branches thereof and court fees related to arbitration shall comply with the Finance Ministry’s guidance.

Chapter III

STATE MANAGEMENT OVER ARBITRATION

Article 16.- Tasks and powers of the Ministry of Justice

1. The Ministry of Justice shall assist the Government in performing the State management over arbitration and have the following tasks and powers:

a/ To formulate and submit to the Government and the Prime Minister for promulgation legal documents on arbitration organization and operation; and guide the implementation of legal documents on arbitration;

b/ To grant licenses for the establishment of Arbitration Centers; accept  the alteration of the contents of the licenses for the establishment of Arbitration Centers according to Article 8 of this Decree; and approve charters as well as amended and supplemented charters of Arbitration Centers.

c/ To organize and guide the training, fostering and building of a contingent of arbitrators;

d/ To inspect the organization and operation of Arbitration Centers;

e/ To undertake international cooperation in the field of arbitration;

f/ To withdraw licenses for the establishment of Arbitration Centers according to Clause 6, Article 14 of the Ordinance and Clause 2, Article 18 of this Decree at the requests of the provincial Justice Services;

g/ To settle complains and denunciations and handle violations of the arbitration legislation according to law provisions.

2. The Ministry of Justice shall assume the prime responsibility for, and coordinate with Vietnam Lawyers’ Association in, performing the tasks and powers defined at Points a, b, c and e, Clause 1 of this Article.

Article 17.- Tasks and powers of the provincial Justice Services:

1. To register the operation of Arbitration Centers and the alteration of the contents of their establishment licenses; register the operation of Arbitration Centers’ branches and withdraw their  operation registration papers.

2. To provide information on the operation registration and establishment of Arbitration Centers’ branches and representative offices to State agencies, organizations and individuals requesting therefor according to law provisions.

3. To inspect the organization and operation of Arbitration Centers.

4. To settle complains and denunciations and handle violations of the arbitration legislation according to law provisions.

5. To report on the organization and operation of Arbitration Centers at the request of the Ministry of Justice or the provincial/municipal People’s Committees.

Article 18.- Handling of violations committed by Arbitration Centers and Arbitration Centers’ branches

1. Arbitration Centers and branches of Arbitration Centers, which commit acts of violating the Ordinance or this Decree, shall, depending on the nature and seriousness of their violations, be administratively sanctioned in forms of caution or fine according to law provisions on handling of administrative violations.

2. In cases of recidivism or serious violation, apart from being sanctioned in forms of caution or fine, the Arbitration Centers may have their establishment licenses withdrawn while the Arbitration Centers’ branches may have their operation registration papers withdrawn.

Chapter IV

IMPLEMENTATION PROVISIONS

Article 19.- Provisions on transition

1. Within 12 months after the effective date of the Ordinance, the Arbitration Centers which have been set up before the effective date of the Ordinance shall have to amend and/or supplement their charters and rules on arbitral proceedings so as to suit the provisions of the Ordinance. The amended and supplemented charters must be approved by the Ministry of Justice.

A dossier of application for the approval of an amended and supplemented charter includes the following papers:

a/ The application for the approval of the amended and supplemented charter;

b/ The notarized or duly authenticated copy of the license for establishment of the Arbitration Center or decision approving the Arbitration Center’s charter;

c/ The amended and supplemented charter.

The Ministry of Justice shall approve the Arbitration Centers’ amended and supplemented charters within 30 days after receiving the valid dossiers.

2. The arbitrators’ cards already granted by the Ministry of Justice according to the Government’s Decree No. 116/CP of September 9, 1994 on the organization and operation of economic arbitration are no longer valid as from the effective date of the Ordinance.

Article 20.- Implementation effect

This Decree takes effect 15 days after its publication in the Official Gazette.

The ministers, the heads of the ministerial-level agencies, the heads of the agencies attached to the Government and the presidents of the provincial/municipal People’s Committees shall, within the scope of their respective functions, tasks and powers, have to implement this Decree.

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