Chương V Pháp lệnh Trọng tài Thương mại năm 2003: Tố tụng trọng tài

Chapter V

ARBITRAL PROCEEDINGS

Article 19.- The right to select forms of dispute settlement in the settlement of disputes arbitration

The involved parties shall have the right to select Arbitration Centers or Arbitration Councils set up by themselves for settling their disputes according to the arbitral proceeding provisions of this Ordinance.

Article 20.- Claims

1. In order to settle disputes at an Arbitration Center, the claimants must send claims to the Arbitration Center.

Such a claim shall include the following principal contents:

a/ The date on which the claim is made;

b/ The names and addresses of the involved parties;

c/ Summarized contents of the dispute;

d/ The claimant’s requests;

e/ The property value requested by the claimant;

f/ The arbitrator at the Arbitration Center, who is selected by the claimant.

2. In order to settle disputes at the Arbitration Centers set up by the involved parties, the claimants must make claims and send them to the respondents; The contents of such a claim shall comply with the provisions in Clause 1 of this Article.

3. The claimants must enclose their claims with the originals or copies of the arbitration agreements, the originals or copies of documents and evidences. Copies must be duly notarized.

4. For disputes to be settled at the Arbitration Centers set up by the involved parties, the arbitral proceedings shall commence from the time when the Arbitration Centers receive claims of the claimants or when the respondents receive claims from the claimants.

5. Within five working days after receiving the claims, the Arbitration Centers must send to the respondents the copies thereof and documents prescribed in Clause 3 of this Article.

Article 21.- Statute of limitations for initiating dispute settlement through arbitration

1. For disputes for which the statute of limitations is prescribed by law, such law provisions shall apply.

2. For disputes for which the statute of limitations is not prescribed by law, the statute of limitations for initiating the settlement thereof through arbitration shall be two years as from the date the disputes occur, except for cases of force majeure events. The duration not included in the statute of limitations shall be counted from the date such an event occurs to the date it disappears.

Article 22.- Arbitration charges

1. The claimants must pay an advance of arbitration charge, unless otherwise agreed upon by the involved parties.

2. In case of settlement of disputes at the Arbitration Centers, the executive boards of the Arbitration Centers shall determine arbitration charges according to the Centers’ charters.

3. In case of settlement of disputes at the Arbitration Councils set up by the involved parties, the arbitration charges shall be determined by the Arbitration Councils.

4. The losers must pay arbitration charges, unless otherwise agreed upon by the involved parties.

Article 23.- Places of arbitration

The involved parties may agree upon the places for dispute settlement, if they have no such agreement, the Arbitration Councils shall decide but must ensure convenience for the involved parties in the settlement.

Article 24.- Self-defense statements

1. For disputes to be settled by the Arbitration Centers selected by the involved parties, the respondents must send their self-defense statements to the Arbitration Centers within 30 days after receiving the claimants’ claims and enclosed documents sent from the Arbitration Centers, unless otherwise agreed upon by the involved parties.

For disputes to be settled at the Arbitration Councils set up by the involved parties, the respondents must send their self-defense statements to the claimants and the names of the arbitrators selected by themselves within 30 days after receiving the claimants’ claims and enclosed documents specified in Clauses 2 and 3, Article 20 of this Ordinance, unless otherwise agreed upon by the involved parties.

2. A self-defense statement must contain the following principal contents:

a/ The date on which the statement is written;

b/ The name and address of the respondent;

c/ Self-defense arguments and evidences, including rejection of part or the whole of the claimant’s claim. Apart from the contents specified at this Point, if the respondents hold that the disputes do not fall under the settling jurisdiction of the arbitration, there is no arbitration agreement or the arbitration agreement is invalid, they may point it out in their self-defense statements.

3. At the respondents’ requests, the time limit for the respondents to send their self-defense statements enclosed with evidences may be longer than 30 days but must be before the date when the Arbitration Councils meet under the provisions of Article 30 of this Ordinance.

Article 25.- Setting up of Arbitration Councils at the Arbitration Centers

1. Unless otherwise agreed upon by the involved parties, within five working days after receiving the claims, the Arbitration Centers must send to the respondents the copies thereof, the names of the arbitrators selected by the claimants and enclosed documents together with the lists of arbitrators of the Arbitration Centers. Unless otherwise agreed upon by the involved parties, within 30 days after receiving the claims and enclosed documents sent by the Arbitration Centers, the respondents must select arbitrators from the lists of arbitrators of the Arbitration Centers. and inform the Arbitration Centers thereof or to request the presidents of the Arbitration Centers to appoint arbitrators for them. Past this time limit, if the respondents fail to select arbitrators or to request the presidents of the Arbitration Centers to appoint arbitrators, the presidents of the Arbitration Centers shall appoint arbitrators on the lists of arbitrators of their Arbitration Centers for the respondents within seven working days as from the expiry of the time limit prescribed in this Clause.

2. Where a dispute involves many respondents, the respondents must reach agreement on selecting one arbitrator within 30 days after receiving the Arbitration Center’s request to select an arbitrator. Past this time limit, if the respondents fail to select an arbitrator, the president of the Arbitration Center shall appoint an arbitrator from the list of arbitrators of his/her Arbitration Center for the respondents within seven working days after receiving the request.

3. Within 15 days after two arbitrators are selected by the involved parties or appointed by the president of the Arbitration Center, these arbitrators must select the third arbitrator from the list of arbitrators of the Arbitration Center as chairman of the Arbitration Council. Past this time limit, if the two selected or appointed arbitrators fail to select the third arbitrator, the president of the Arbitration Center shall appoint the third arbitrator from the list of arbitrators of his/her Arbitration Center as chairman of the Arbitration Council within seven working days after the expiry of the time limit.

4. Where the involved parties agree that their dispute shall be settled by a sole arbitrator of the Arbitration Center but fail to select such an arbitrator, the president of the Arbitration Center shall appoint the sole arbitrator for them within 15 days after receiving their request and notify them thereof.

The sole arbitrator shall act as an Arbitration Council. The sole arbitrator’s awards shall be as effective as those of an Arbitration Council.

Article 26.- Arbitration Councils set up by the involved parties

1. Unless otherwise agreed upon by the involved parties, within 30 days after the date on which the claimants send their claims to the respondents, the latter must select arbitrators and notify the claimants thereof. Past this time limit, if the respondents fail to notify the claimants of the names of the selected arbitrators, the claimants may request the courts of the provinces or centrally-run cities (hereinafter referred collectively to as the provincial-level courts) where the respondents are headquartered or reside to appoint arbitrators for the respondents. Within seven working days after receiving such written requests, the chief judges of the courts shall assign one judge to appoint arbitrators for the respondents and notify the involved parties thereof.

2. Where a dispute involves many respondents, the respondents must reach agreement on selecting one arbitrator within 30 days after receiving the claimants’ claims and enclosed documents. Past this time limit, if the respondents fail to select an arbitrator, the claimants may request the provincial-level court of the locality where one of the respondents is headquartered or resides to appoint an arbitrator for the respondents. Within seven working days after receiving such written request, the chief judge of the court shall assign one judge to appoint an arbitrator at the request of the claimant and notify the involved parties thereof.

3. Within 15 days after two arbitrators are selected by the involved parties or appointed by the court, these arbitrators must reach agreement on selecting the third arbitrator as chairman of the Arbitration Council. Past this time limit, if the two selected or appointed arbitrators fail to select the third arbitrator, the involved parties may request the provincial court of the locality where the respondent is headquartered or resides to appoint the third arbitrator. Within seven working days after receiving such written request, the chief judge of the court shall assign one judge to appoint the third arbitrator as chairman of the Arbitration Council and notify the involved parties thereof.

4. Arbitrators selected by the involved parties or by courts may be those on or not on the lists of arbitrators of Vietnam’s Arbitration Centers.

5. Where the involved parties agree that their disputes shall be settled by a sole arbitrator but fail to select such an arbitrator, at the request of one party, the chief judge of the provincial court of the locality where the respondent is headquartered or resides shall assign one judge to select the sole arbitrator for the involved parties within 15 days after receiving such request, then notify the involved parties thereof.

The sole arbitrator shall act as an Arbitration Council. The sole arbitrator’s awards shall be as effective as those of an Arbitration Council.

Article 27.- Replacement of arbitrators

1. Arbitrators must refuse to settle disputes or the involved parties may request change of arbitrators to settle their disputes in the following cases:

a/ Arbitrators are relatives of either party or representatives of such party;

b/ Arbitrators have their interests in the dispute.

c/ There are explicit grounds that arbitrators are not impartial nor objective while performing their duties.

2. From the time of being selected or appointed and during the process of arbitral proceedings, the arbitrators must notify in a public and timely manner any matters that may cause doubts over their impartiality and objectivity.

3. After having selected their arbitrators, should the involved parties discover that their selected arbitrators fall into one of the cases specified in Clause 1 of this Article, they may request such arbitrators to refuse to settle disputes.

4. Replacement of arbitrators shall be decided by the other arbitrators in the Arbitration Councils. Where a decision cannot be made or if both arbitrators refuse or the sole arbitrator refuses to settle the dispute, the change of arbitrator shall be effected as follows:

a/ For disputes to be settled by Arbitration Centers, the presidents of the Arbitration Centers shall decide;

b/ For disputes to be settled by Arbitration Councils set up by the involved parties, at the claimants’ requests, the chief judges of the provincial-level courts of the localities where the respondents are headquartered or reside shall assign one judge to consider and made decision. The courts’ decisions are final ones.

5. During the process of arbitral proceedings, if an arbitrator cannot continue his/her participation, the replacement of such arbitrator shall comply with the provisions of Clause 4 of this Article, depending on whether the Arbitration Council is set up by the Arbitration Center or by the involved parties

6. In case of necessity, after consulting the involved parties, the newly-set up Arbitration Councils may review matters already considered in the previous dispute settlement meetings.

Article 28.- Amendment, supplementation or withdrawal of claims

Claimants may amend, supplement or withdraw their claims before the Arbitration Councils issue arbitral awards.

Article 29.- Counter-claims

1. The respondents may file counter-claims against the claimants on matters related to the latter’s demands.

2. Counter-claims must be sent to the Arbitration Councils and concurrently to the claimants before the date when the Arbitration Councils open meetings to settle the claimants’ claims.

The claimants must issue written statements in reply to the counter-claims within 30 days after receiving such counter-claims. Such written statements must be sent to the respondents and the Arbitration Councils.

3. The counter-claim procedures shall be the same as those for settling the claimants’ claims and simultaneously settled by the Arbitration Councils.

Article 30.- Examination of arbitration agreements, Arbitration Councils’ jurisdiction to settle disputes

1. Before considering the dispute’s details, if any party lodges a written complaint that the Arbitration Council has no jurisdiction to settle the dispute; the dispute has no arbitration agreement or the arbitration agreement is invalid, the Arbitration Council must consider the written complaint and make decision in the presence of the involved parties, unless otherwise requested by the involved parties. If the complainants, though having been summoned properly, are absent without plausible reasons, they shall be deemed to have withdrawn their complaints. The Arbitration Councils shall continue to consider and settle the dispute.

2. In case of disagreement with the Arbitration Council’s decision on the content mentioned in Clause 1 of this Article, within five working days after receiving the Arbitration Council’s decision, the involved parties may request the provincial-level court of the locality where the Arbitration Council has made such decision to review such decision. The requesting party must notify concurrently the Arbitration Council thereof.

Such a written request must contain the following principal contents:

a/ The date on which the request is made;

b/ The name and address of the requester;

c/ The request’ contents.

The written requests must be enclosed with copies of the claim, arbitration agreement and the Arbitration Council’s decision. Copies must be duly notarized.

Within five working days after receiving the written requests, the chief judge of the court shall assign one judge to consider and settle them. Within 10 days after being assigned the task, the judge must consider and make decision. The court decisions are final ones.

In cases where the courts decide that the disputes do not fall under the jurisdiction of the Arbitration Councils, the disputes have no arbitration agreement or the arbitration agreements are invalid, the Arbitration Councils shall issue decisions to stop the settlement of the disputes. Unless otherwise agreed upon, the involved parties may bring their disputes to court. The statute of limitations for initiating lawsuits at court shall comply with the provisions in Article 21 of this Ordinance, excluding the duration between the date when the claimants lodge their claims at the Arbitration Councils and the date when the courts issue decisions under the provisions of this Article.

Article 31.- Examination of dossiers and verification of facts

1. After being selected or appointed, the arbitrators must examine dossiers and verify facts if deeming it necessary.

2. The Arbitration Councils may meet the involved parties to hear their opinions. At the request of one party or all parties involved or on their own initiative, the Arbitration Councils may inquire into the facts from a third person either in the presence of the involved parties or after notifying them thereof.

Article 32.- Gathering of evidences

1. The involved parties shall be obliged to provide evidences proving the facts presented by themselves. The Arbitration Councils may request the involved parties to supply evidences related to their disputes.

2. In case of necessity, the Arbitration Councils may gather evidences by themselves; invite expertise at the request of one party or all parties involved, and must notify them thereof. The expertise requestor must pay an advance of the expertise charge; where all the involved parties invite expertise, they shall all pay an advance of the expertise charge.

Article 33.- The right to request the application of interim urgent measures

While the Arbitration Councils are settling disputes, if their rights and legitimate interests are infringed upon or in danger of being directly infringed upon, the concerned parties may file their written requests at the provincial-level courts of the localities where the Arbitration Councils are receiving and handling the disputes to apply one or a number of the following interim urgent measures:

1. To safely protect evidences in case they are being destroyed or in danger of being destroyed;

2. To inventory the disputed properties;

3. To ban the transfer of the disputed properties

4. To ban any change in the present conditions of the disputed properties;

5. To inventory and seal up the properties at their storing places;

6. To blockade bank accounts.

Article 34.- Procedures for application of interim urgent measures

1. The requesters of the application of interim urgent measures specified in Article 33 of this Ordinance must send written requests to the provincial-level courts of the localities where the Arbitration Councils which are handling the disputes are based.

2. A written request for the application of interim urgent measures must be enclosed with copies of the claim with full contents as prescribed in Article 20 and the arbitration agreement as prescribed in Article 9 of this Ordinance. These copies must be duly notarized.

Depending on the requested types of interim urgent measures, the requesters must supply to the courts concrete evidences in need of safe protection, evidences that the respondents are dispersing or hiding properties, which may render the enforcement of arbitral awards impossible.

3. The requesters of the application of interim urgent measures must deposit security money amounts required by the courts, which, however, must not exceed the property obligation the obligees have to fulfill in order to protect the legitimate interests of the respondents and prevent any abuse of interim urgent measures by the requesters. These money amounts shall be deposited at the banks in the places where the courts which have decided on the application of interim urgent measures are headquartered.

4. After receiving the written requests and documents specified in Clauses 1, 2 and 3 of this Article, the chief judges of the provincial-level courts defined in Clause 1 of this Article shall assign one judge to consider and settle them. Within five working days after being assigned such task, the judge must check the accuracy of the documents prescribed in Clause 2 of this Article, and within the scope of the claimants’ requests, may decide to apply one or several interim urgent measures specified in Article 33 of this Ordinance. In case of application of one or several measures specified in Clauses 2, 3, 4, 5 and 6, Article 33 of this Ordinance, the properties to which the interim urgent measures are applied must have a value not exceeding the property obligations that the obligees have to fulfill.

5. The decisions on the application of interim urgent measures must be immediately sent to the Arbitration Councils, the disputing parties and the Procuracies of the same level.

The decisions on the application of interim urgent measures shall be executed promptly and in accordance with the law provisions on execution of civil judgments.

6. Within three working days after receiving the decisions on the application of interim urgent measures, the chairmen of the Procuracies of the same level shall be entitled to protest and the respondents shall be entitled to request the chief judges of the courts which have issued such decisions to consider and change, cancel or keep such measures. Within three working days after receiving the protests of the Procuracies or the requests of the respondents, the chief judges of the courts must have decisions and issue replies thereon to the Procuracies or the respondents.

Article 35.- Alteration or cancellation of interim urgent measures

The requesters of the application of interim urgent measures may requests in writing the alteration or cancellation of the applied interim urgent measures when they are no longer appropriate or necessary.

Within three working days after receiving the written requests for alteration or cancellation of interim urgent measures, the chief judges of the provincial courts which have decided on the application of the interim urgent measures shall assign one judge to consider and decide on the alteration or cancellation of the applied interim urgent measures. Such decisions must be immediately sent to the Arbitration Councils, the disputing parties and the Procuracies of the same level.

In case of cancellation of interim urgent measures, the judge must consider and decide to allow the requesters of the application of such measures to receive back the security money specified in Clause 3, Article 34 of this Ordinance, except for the case specified in Article 36 of this Ordinance.

Article 36.- Responsibilities of the requesters of the application of interim urgent measures

The requesters of the application of interim urgent measures shall bear responsibility for their requests.

In cases where the requesters of the application of interim urgent measures are wrong and cause damage to the other party or a third party, they must pay compensations therefor.

Article 37.- Conciliation

1. During the process of arbitral proceedings, the involved parties may conciliate on their own. In case of successful conciliation, the Arbitration Councils shall, at the involved parties’ requests, stop the proceedings.

2. The involved parties may request the Arbitration Councils to act as conciliator. In case of successful conciliation, the involved parties may request the Arbitration Councils to make records on and issue decisions recognizing the successful conciliation. The successful conciliation records must be signed by the involved parties as well as arbitrators. The Arbitration Councils’ decisions recognizing the successful conciliation shall be final ones and implemented under the provisions of Article 57 of this Ordinance.

Article 38.- Meetings to settle disputes

1. The time for opening meetings to settle disputes shall be decided by the chairmen of the Arbitration Councils, unless otherwise agreed upon by the involved parties.

2. Summons shall be sent to the involved parties to attend a dispute-settling meeting no later than 30 days before the opening date of the meeting, unless otherwise agreed upon by the involved parties.

3. Dispute-settling meetings shall not be conducted publicly. If it is so consented by the involved parties, the Arbitration Councils may permit other persons to attend the meetings.

Article 39.- Attendance of dispute-settling meetings

The involved parties may directly attend or authorize their representatives to attend dispute-settling meetings. They may invite witnesses and lawyers to protect their rights and legitimate interests.

Article 40.- Absence of the involved parties

1. If the claimants, though having been summoned to attend dispute-settling meetings, fail to attend the meetings without plausible reasons or leave the meetings without the Arbitration Councils’ consent, they shall be deemed as having withdrawn their claims. In this case, the Arbitration Councils shall continue settling the disputes if the respondents so request or lodge counter-claims under the provisions of Article 29 of this Ordinance.

If the respondents, though having been summoned to attend dispute-settling meetings, fail to attend the meetings without plausible reasons or leave the meetings without the Arbitration Councils’ consent, the Arbitration Councils shall continue settling the disputes on the basis of available documents and evidences.

2. The Arbitration Councils may base themselves on the dossiers to settle disputes without the presence of the involved parties if it is so requested by the involved parties.

Article 41.- Postponement of dispute-settling meetings

1. If they have plausible reasons, the involved parties may request the Arbitration Councils to postpone the dispute-settling meetings.

2. The Arbitration Councils must postpone the dispute-settling meetings if they deem that there are not enough grounds for settling disputes.

Article 42.- Principles for issuing arbitral awards

The Arbitration Councils’ arbitral awards shall be made on the majority principle, except where disputes are settled by the sole arbitrator. The minority opinions shall be recorded in the meetings’ minutes.

Article 43.- Minutes of dispute-settling meetings

1. The minutes of dispute-settling meetings shall be made by the Arbitration Councils and signed by their chairmen.

2. The involved parties may see the minutes’ contents, ask for amendments and/or supplements thereto. If the Arbitration Councils reject the requests for amendments and/or supplements, they must record such in the minutes.

Article 44.- Arbitral awards

1. An arbitral award must contain the following principal contents:

a/ The date and place of issuance of the arbitral award; for disputes settled by the Arbitration Centers, the arbitral awards must contain the names of the Arbitration Centers;

b/ The names and addresses of the claimant and respondent;

c/ The full names of arbitrators or the sole arbitrator;

d/ Summary of the claim and disputed issues;

e/ Bases for issuing the arbitral award;

f/ Decision on the dispute; decision on the arbitration charge and other expenses;

g/ The time limit for enforcement of the arbitral award;

h/ Signatures of the arbitrators or the sole arbitrator.

2. In cases where an arbitrator refuses to sign the arbitral award, the chairman of the Arbitration Council must record such in the arbitral award, clearly stating the reason therefor.

3. The involved parties may request the Arbitration Councils not to include the disputed matters, bases of decisions on the disputes into the arbitral awards.

4. The arbitral awards come into force as from the date of their announcement.

Article 45.- Announcement of arbitral awards

1. The arbitral awards may be announced right at the final meetings or afterwards but no later than 60 days after the end of the final meeting. The full texts of the arbitral awards must be sent to the involved parties right after the date of their announcement.

2. At the involved parties’ requests, the Arbitration Centers or Arbitration Councils set up by the involved parties shall issue to the requesting parties copies of the arbitral awards.

Article 46.- Correction of arbitral awards

1. Within 15 days after receiving the arbitral awards, any involved party may request the Arbitration Council to correct computing, typing, printing or other technical errors. Within 30 days after receiving such request, the Arbitration Council shall correct errors and notify the other party thereof.

2. Correction decisions shall constitute part of the arbitral awards and must be signed by the Arbitration Councils.

Article 47.- Stoppage of dispute settlement

The Arbitration Councils shall stop the dispute settlement in the following cases:

1. The claimants withdraw their claims or are deemed as having withdrawn their claims under the provisions of Clause 1, Article 40 of this Ordinance, unless the respondents request the Arbitration Councils to continue settling the disputes;

2. The involved parties agree upon the termination of the dispute settlement.

Article 48.- Archival of arbitration dossiers

1. For disputes the settlement of which is organized by the Arbitration Centers, arbitration dossiers, arbitral awards and/or conciliation written records shall be archived at the Arbitration Centers

2. For disputes settled at the Arbitration Councils set up by the involved parties, within 15 days after the arbitral awards or conciliation records are announced, the Arbitration Councils must send the arbitral awards or conciliation records together with the dispute settlement dossiers to the provincial-level courts of the localities where they have issued the arbitral awards or made the conciliation records, for archival.

Article 49.- Settlement of disputes involving foreign elements by arbitration

1. Under the agreement of the involved parties, the disputes involving foreign elements may be settled at the Arbitration Councils organized by the Arbitration Centers or at the Arbitration Councils set up by the involved parties under the provisions of this Ordinance.

2. The Arbitration Councils organized by the Arbitration Centers or set up by the involved parties may apply other proceeding rules, if it is so agreed upon by the involved parties.

3. Arbitrators selected by the involved parties or appointed by courts may be those on or not on the lists of arbitrators of Vietnam’s Arbitration Centers or foreign arbitrators according to their countries’ law provisions on arbitration.

4. Where one party or all parties involved request foreign courts to appoint arbitrators, the courts competent to appoint arbitrators shall be those determined under the law provisions of such foreign countries.

5. The involved parties may agree on selecting laws under the provisions of Clause 2, Article 7 of this Ordinance and/or international commercial practices for settling their disputes.

6. The involved parties may agree on the places for settling their disputes, either in Vietnam or in a foreign country; if they fail to reach such agreement, the Arbitration Councils shall decide on such places but must ensure convenience for the involved parties in the settlement.

7. The involved parties may agree on the language(s) to be used in arbitral proceedings, if they have no agreement thereon, the language used in arbitral proceedings shall be Vietnamese.

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