MINSTRYOFJUHIACNE LMWIUSNTRVYEOFDUCATION&RIG LL.M NGO TRONG QUAN Ha Noi - 2024 DECLARATION I hereby declare that this is my own research work the conclusions and data in the graduation thesis are truthfiill and reliable / Confirmation of ŠLpervisor Author of the Graduation Thesis Nguy Ha en Ngoc Anh LIST OF ABBRE VIATIONS ADR : Alternative Dispute Resolution cc : Civil Code CPC : Civil Proceeding Code IBA : International Bar Association LCA : Law onCommercial Arbitration VIAC : Vietnam International Arbitration C enter UNCITRAL : United Nations Commission on International Trade Law TABLE OF CONTENTS LIST OF ABBREVIATIONS TABLE OF CONTENTS. Necessity of the research. we Literature review 1.1 Definition and characteristics. Necessity of arbitral award annulment.
Common reasons for annulment ofarbitral awards. Substantive grounds CONCLUSION OF CHAPTER 1 2. Regulations on grounds of arbitral award annulment 2. Application of grounds of arbitral award annulment 2.1 Shortcomings of applying grounds of arbitral awards annulment 2.
Notable cases of annulling arbitral awards CONCLUSION OF CHAPTER 2. CHAPTER 3: RECOMMENDATIONS FOR IMPROVEMENT OF VIETNAMESE LEGAL FRAMEWORK 42 3. Directions and policies on improvement of legal framework. Recommendations for improvement of legishtions.
Provision on the form of arbitral agreemteHifs. Necessity of the research After six years of the implementation of the 2003 Ordinance of Commercial Arbitration, in response to the needs of using arbitration as a means of alternative dispute resolution (hereby “ADR”) and creating a solid legal framework to support this method,! the National Assembly of Vietnam passed the Law No. 54/2010/QH12 dated 17 June 2010 on Commercial Arbitration (hereby “LCA”). The legislation is composed of 11 chapters and 75 articles, regulating all matters concerning the proceedings of arbitration After 13 years of the LCA enforcement, arbitration has gained its popularity among traders and companies, both from Vietnam and from other countries that have trading activities in Vietnam.
According to Vietnam International Arbitration Center C'VIAC”) — Vietnam’s largest and most prestigious arbitration center, the Center handled 292 cases in 2022,? which is 365% more than the mumber of cases admitted in VIAC in 20113 However, accompanied with the rising number of cases is the rising number of annulled awards.* Annulment or setting aside an arbitral avardrefersto the legal process by which a court sets aside or nullifies an arbitration award that has been issued by an arbitral tribunal. The process acts both as a means of scrutinizing and assisting the arbitral proceedings, detecting “faulty” decisions and halting their enforcement, while reinforcing the validity of the “correct” and “appropriate” ones. Such process is prescribed in all international and domestic legal instruments, namely the UNCITRAL Model Law on International Arbitration (hereby “Model Law”) and the Convention on the Recognition and Enforcement of F oreign Arbitral Awards (hereby “New York Convention”). ` Vietnam Lavryers Association (2009), Report No.HLGVNon the Project of the Law on Commercial Arbitration, p 2.
? Vietnam Intermutional Arbitration Center (2023), 2022 Amma} Report, retrieved 07 Jumuary 2024 from: hitps /Áyvntr viac savimages/Resources/Amuual- Reports/2022/VIAC_Aramal-report-2023_230822. + Vu Hoang (2021), Hin’ phẩm quyết rong tài thương mea theo pháp luật Việt Nem và một số kien ngĩủ, Viemama Lawyer Jounal, retrieved 07 Jutuary 2024, from https //isvn víilaty-pientctryst-trong-takthatong-nsai-theo- phap-hut-viet-mum-va-mot-so-kien-nghil6 10677477 hmal 1 Following the framework of Model Law, LCA and its guiding document, Resolution No. 01/2014/NQ-HDTP dated 20 March 2014 by the Council of Judges of the People’s Supreme Court on Guidelines for the Law on Commercial Arbitration (hereby “Resolution No. 01/2014/NQ-HDTP”), provide the legal basis for the process of arbitral avard annulment in Article 68 LCA and Article 14 Resolution No.
In recent time, Vietnamese legal community has observed a surge in the number of arbitral awards that get annulled by the courts. Such decisions, however, often meet with criticisms from practitioners. Since the establishment of the new law, a common critique comes from the way the court explains the grounds and proves the case fall within the provision, especially requests based in Article 6§.đ Evenin the Resolution, laymakers have not cleared out on the meaning of the provision, making interpretation of the law difficult and non-uniform.’ It is argued that issues regarding arbitration agreements, procedural complications, and grounds for annulling arbitral awards exist. Since arbitration is essentially a "private adjudicatory body," during the dispute resolution process, it still needs support and intervention from the courts, which serve as dispute resolution authorities with the characteristics of state pow er.Š Such a dependence makes the interpretation of the law at the judges’ hands, which might not be the same in each case of annulment.
This court practice poses a critical question How should the grounds for annulment provided in the LCA be construed? However, again, it ends up unanswered. Although the Judges’ Committee gave out instructions for application in the Resolution No. 01/2014/NQ-HDTP, specifically Article 14 of the Resolution, it remains silent on the application of some other grounds, especially in the grounds as listed in Article Ving Nguyen(2024), Luật nian bắt cấp khiển doanh: nghiệp lo lắng lồn lựa chon trong tài tương mại, Pháp nit TP. Ho Chi Mh Onlzw,retrieved 20 December 2023,from hitps://plo vvhut-nhitu-bat-cap-khuen- dowhnghiep-lo-lmg-Ichi-hua-chon-trong-tai-thmong-naai-post7 71392 html * Nguyen Vin Plmc, Nguyen Nhất Duong (2023), Ria ro cho các phan quyét của trong tài thương mai, The Saigon Times, retrieved 25 December 2023, from https:/thesaigontimes wnuui-ro-cho-cac-phan-quyet-cua- tong-tai-thnong-nay 4 ‘Buu Mian Hai (2015), Thận bản các nguyên nhên cia tình trang huy phẩm quosét wong tài ở Việt Neon hiện nay, Vietmansese Jounal of Legal Science ,03 (88)/2015 — 2015, retrieved retrieved 20 December 2023 from Iuttps /Aapchikhp hn hamalaw edu vrimodule /xemachuitie tb abao 2o3xi=e 14802 90-2¢25-456a-a026- 30 'badt$386fc “Nguyen Van Kich (2023), Hod thiện: thể chế, pháp luật, nang vi thé Thong tài Đương mad đáp ing yêu cẩu tie hội nhập và phát triển, Phaphy net retrieved 25 December 2023 from ]itos s/phuply net vavhomn-thuen-the- che-phap-huat-nang-vi-the-trong.
taythuong-mai-dap-ng-yeu-cau-cus-hormhap-va-phat-trien-4257588 him 2 68.d!°, and the application of different judges and courts makes the outcome of such annulment requests become unpredictable. That is when a unified understanding and a solid approach is needed. Yeaming to find the answer to that question, the writer chose the topic “Grounds for Annulment of Arbitral Awards According to Vietnamese Law on Commercial Arbitration — Current Situations and Recommendations” for this thesis. Literature review Review of foreign literature shows that the matter of arbitral avard annulment has been well discussed among both academics and practitioners.
Such discussion on the annulment process could be found in manuscripts such as International Commercial Arbitration by Gary Barn or International Arbitration by Redfern and Hunter. Further commentaries on the UNCITRAL Model Law on International Arbitration also give a comprehensive view on setting aside arbitral awards in the international legal framework, with the Model Law being the leading figure. Foreign research on the matter can be divided into three groups: overview on the theoretical matters involved in the procedure of award annulment, commentaries on the provision of the Model Law on annulment of award, and analysis of law from countries in comparison to the Model Law. In the first group, Gary Born!! and Alen Redfern and Martin Hunter! detailed the common grounds for arbitration, in relation to international conventions and frameworks such as the UNCITRAL Model Law on International Commercial Arbitration and the New York Convention The necessity of the annulment procedures has been examined” and has been used to explore each of the grounds for challenge!*.
The commentaries on the annulment provision in the Article 68.2 LCA: “The arbitration council's composition or procedures of arbitral proceedings is/are ancompliant with the parties’ agreement or the LCA” ‘© Art le 68 24 LCA: “The award contravenes the fundamental prac ples of Vietmese lav” `! Gary B. Bom (2021), Suternational Commercial Arbitration (3" dition), Wolters EEhuver, The Netherlands. !2 Alan Redfem, Martin Himter (2015), Redfern coud Hioter on International Arbitration (6 Zdirion), Oxford University Press. Park (2001), Wi Conots Review Arbitval Awards ,in Recht der Intemationalen Wirtschaft mad Streiterk digumg im 21.
Jalelumdert: Liber Amicon Karl- Heinz Boeckstiege] 595 (Robert Brmer,L. Yves Fortier, Klaus Peter Berger & Jens Bredow ed.,2001) 4 George A Bemmam (2017), Aousiment of aeards , Intemational Arbitration and Private Intemational Law, Brill 3 Model Law showed that the global approach on the matter is quite anonymous and closely follows the theory and the reasons for judicial review of awards. !* In the third categories, annual reports ÌẾ and dissertations analyze the law from various jurisdictions and compare with Model Law to recommend on the law of the countries to enhance the efficiency of the annulment procedure. In his most recent thesis, Mohammad A.
Odeibat used the comparative approach between national law of countries across Europe and the Middle East to look into each of the grounds for annulment according to the UNCITRAL Model Law to propose a new model for challenging arbitral awards.” In Vietnam, since the enactment of the 2010 Commercial Arbitration Law, regulations on annulment of arbitral awards has been widely debated in academic writings. Recently, some articles, journals, andrelatedresearch works have addressed the existing limitations in the lay concerning the annulment of commercial arbitral awards in Vietnam, including: () the grounds of annulment are unclear,"* (43) lack of uniform understanding on the grounds of annulment,” and (iii) lack of a judicial review procedure with the decisions to annul by the court? Additionally, articles such as “Perfecting Vietnam's Arbitration Law" by author Tran Viet Dung published in Issue 01 (14) of the Legal Science Journal or "Current Situation of Annulment of Arbitral Awards at VIAC" by Vu Anh Duong” can be mentioned However, most of them focus on the whole process of annulment or just one of the five grounds for annulment as prescribed by law, and the cases mentioned in the articles were only updated until 2018. Phan Thong Anh claimed that the grounds for annulment of ‘Pietro Ortolani (2020), Application for Setting Aside as Exclusive Recourse aginst Arbitral Award, UNCITRAL Mode] Lav on Intemational Commercial Arbitration: A Commentary ,p. 958-908, Cambridge: Cambridge University Press !* Global Arbitration Review (2023), The Asia Pacific Artitration Review 2024 retrieved 10 March 2024 from.
hitps //globalarbarationreview comieview the-asia-pac#ic-arbitration-reviews/2024 Mohmmud A. Odebat (2023), 4 Legislative Comparative Assessment of Challenging Arvitral Awards Under UNCITRAL Model Law: A.New Hamnontsed Proposed Model for Challenging Arbitral Awards ,Doctar of Philosophy Thesis, University of Manchester `* Supra note 7, Nguyên Thi Fimong (2013), Hig pin quoét trong tài theo quay định của pháp luật Việt Nem: ‘Master’s thesis, Hanoi Law University, Hanoi ° Nguyên My Anh (2020), “Cin cirhiy phán quyết trong tải tsường mai quốc tế- Góc nhàn từ pháp hiật Thuy 5ý vi kash nghiim cho Việt Num”, Bachelor’s thesis Ho Chi Minh Cay University of Lavt,Ho Chi Minh Cay, “Do Fim Chien (2017),Hip phn quyét trong tài Dương mại theo pháp kiật Điệt Nem từ tực tiễn Thành phổ #6 Chi Minh, Masterthesis, Viewum Academy of Social Sciences, Hanoi *'Vu Anh Duong 2015), Thực trạng juiy phím quyết trong tài tại VIAC, Aruuoed of Arbsra) Award: Scientific Conference ,Ho Chi Mạnh City University af Layy, 20 Jmuary 2015 4 arbitral awards in Vietnam were vague and hard to apply, which led to the judges annulling the awards without much serious consideration ? Tuong Duy Luong pointed out that the application of the grounds for cancelling the arbitral awards has been heavily influenced by the viewpoint of the Code of Civil Procedure, to which the author disagreed.3 Dang Xuan Hop compared the provisions on recourse against arbitral awards between the Model Law and the LCA, pointing out the inconsistent and unclear terms used in the LCA The most recent article by Phan Huu Thu only mentioned the gap in regulations on arbitral awards, but only in theory without mentioning the court’s decisions.