MINISTRY OF EDUCATION AND TRAINING FOREIGN TRADE UNIVERSITY MASTER THE THE IMPACT OF PUBLIC POLICY ON COMMERCIAL ARBITRATION IN VIETNAM Major: International Economics Specialisation: International Trade Policy and Law Code: 821111 Full name: Cao Hong Tam Supervisor: Dr. Ha Cong Anh Bao Hanoi, 2023 STATEMENT OF ORIGINAL AUTHORSHIP Thereby declare that this master’s thesis was exclusively conducted on my own and that all data indicated in the thesis is clear, accurate, and collected from reliable sources of information. In addition, 1 hereby assure that all of the supports in the process of implementation cited in the master’s thesis have been rightfully specified as sources. Author Cao Hong Tam ii ACKNOWLEGEMENTS I would like to express my sincere gratitude to Dr.
Ha Cong Anh Bao, my supervisor, for his invaluable guidance and expertise throughout this research. His insightful feedback and constructive criticism have been instrumental in shaping the direction and quality of this thesis. I would also like to thank my mother, whose love, encouragement, and unwavering belief in my abilities have been a constant source of motivation and strength. Iam indebted to my family and friends for their continuous encouragement.
Their support has been a constant source of motivation. I would like to express my thankfulness to the Foreign Trade University and the Faculty of Graduate Studies for providing a conducive academic environment and resources for my research. Lastly, I extend my appreciation to the authors, researchers, and scholars whose works have contributed to the field of international commercial arbitration and public policy. Their dedication to research and their insightful contributions have served as inspiration and a valuable resource for this thesis.
Thank you all for your contributions and support iii TABLE OF CONTENTS STATEMENT OF ORIGINAL AUTHORSHIP. LIST OF ABBREVIATIONS. ABSTRACT SUMMARY OF THESIS RESULTS. CHAPTER 1: INTRODUCTIO! 11 Research rationale 1 1.
Subject matter and scope of research 5 15. Research disposition 7 CHAPTER 2: THEORETICAL FRAMEWORK. Overview of commercial arbitration 8 2. Arbitral awards, types of arbitral awards, their recognition and enforcement 12 2.
Overview of public policy 15 2. Types of public policy 17 2. The link between commercial arbitration and public policy 18 CHAPTER 3: IMPACT OF PUBLIC POLICY ON COMMCERCIAL ARBITRATION ON AN INTERNATIONAL LEVEL. Overview of the legal framework in international conventions on the recognition and enforcement of foreign arbitral awards.
Public policy under the New York Convention. Impact of public policy on commercial arbitration in the common law system 27 3.21 The United States. The United Kingdom 30 3. Impact of public policy on commercial arbitration in the civil law system 36 3.
Evaluation of public policy’s impact on commercial arbitration on an international level 42 CHAPTER 4: IMPACT OF PUBLIC POLICY ON COMMERCIAL ARBITRATION IN VIETNAM. Overview of the legal framework of public policy on the recognition and enforcement of foreign arbitral awards in Vietnam 45 4. Public policy as a refusal ground of the recognition and enforcement of foreign arbitration awards 47 4. Practical application of public policy on commercial arbitration in Vietnam 59 4.
Evaluation of public policy’s impact on commercial arbitration in Vietnam 74 CHAPTER 5: LESSONS AND RECOMMENDATIONS FOR VIETNAM ON COMMERCIAL ARBITRATION WITH PUBLIC POLICY IMPLICATION +78 5. Lessons from other countries 78 5. Recommendations for Vietnam 82 CONCLUSIO! 86 LIST OF REFERENCES. LIST OF ABBREVIATIONS.
CPC 2004 Code No. 24/2004/QH11 dated June 15, 2004, of Civil Procedure CPC 2015 Code No. 92/2015/QH13 dated November 25, 2015, of Civil Procedure IFC International Finance Corporation ILA International Law Association LCA 2010 Vietnam’s Law on Commercial Arbitration 2010 MOI Vietnam’s Ministry of Justice Ordinance Vietnam’s Ordinance No. 42-L/CTN dated September 14, 1995 1995, on the Recognition and Enforcement of foreign arbitral awards in Vietnam Ordinance Vietnam’s Ordinance No.
08/2003/PL-UBTVQH dated 2003 February 25, 2003, on Commercial Arbitration Resolution No. Vietnam’s Resolution No. 01/2014/NQ-HDTP, dated March 01/2014/NQ- 20, 2014 guiding the implementation of the Law on HDTP. Commercial Arbitration 2010 SPC Vietnam’s Supreme People’s Court The Database ‘The Database on the Recognition and Enforcement of foreign court judgments and decisions and arbitral awards in Vietnam from 1 January 2012 to 30 September 2019 The Report The Report on Evaluation and Comparison of Vietnamese Legal Regulations on Accreditation and Enforcement of Arbitral Awards with the UNCITRAL Model Law on International Commercial Arbitration, suggesting the Applicability of the Model Law in Vietnam 2019 UK ‘The United Kingdom UN ‘The United Nations UNCITRAL UNCITRAL Model Law on Intemational Commercial Model Law Arbitration (1985), with amendments as adopted in 2006 US ‘The United States VLA Vietnam Lawyers Association vi ABSTRACT This thesis critically examines the role of public policy on commercial arbitration in Vietnam, with a specific focus on the recognition and enforcement of foreign arbitral awards within the jurisdiction.
By examining international practices and Vietnamese legal texts, it sheds light on Vietnam’s approach to this important aspect of international commercial arbitration. An analysis of noteworthy court decisions elucidates the application of public policy in refusing enforcement. The research findings reveal that Vietnam is aligning itself with the prevailing pro-arbitration trend and adopting a more delimited scope for the application of public policy. Additionally, this thesis identifies both areas of convergence and divergence in comparison to intemational standards and provides tailored recommendations for Vietnam.
The findings contribute to the ongoing discourse on public policy in arbitration and offer valuable insights for practitioners and policymakers alike. vii SUMMARY OF THESIS RESULTS. This thesis explores the impact of public policy on commercial arbitration in Vietnam, focusing on its role in shaping the recognition and enforcement regime of foreign arbitral awards. The research findings provide valuable insights into the interplay of public policy in the context of enforcing foreign arbitral awards in Vietnam.
The study commences with an in-depth overview of commercial arbitration, providing a foundation for understanding the context in which the recognition and enforcement of foreign arbitral awards operate. It explores the fundamental principles and key concepts that underpin commercial arbitration, setting the stage for a more focused analysis of the role of public policy. Building upon this foundation, the thesis delves into the international understandings and applications of public policy, examining different countries’ viewpoints and approaches to public policy as a ground for refusing enforcement. Through an examination of relevant case studies from diverse jurisdictions, the complexities and challenges associated with public policy in enforcing foreign arbitral awards are elucidated.
It seems that leading jurisdictions of both common and civil law systems are heading towards a pro-arbitration approach and a limited scope of application of public policy on the recognition and enforcement of foreign arbitral awards. Moving to the Vietnamese legal context, the analysis of Vietnamese legal texts reveals the understanding and interpretation of public policy within the Vietnamese legal framework. By incorporating academic perspectives, the study further explores the implications of public policy for the recognition and enforcement of foreign arbitral awards in Vietnam. It finds that the definition of public policy in Vietnam is still a debated subject.
‘The research also investigates recent legal developments and reforms in Vietnam, providing an overview of the Vietnamese legal system’s adherence to intemational standards. Noteworthy changes in legislation and evolving judicial practices are examined to understand their impact on the enforcement regime. 01/2014/NQ-HDTP issued by the Council of Judges of the Supreme People’s Court serves as a significant reference point, offering guidance on the basic principles of Vietnam’s law concerning the enforcement of foreign arbitral awards. Furthermore, the study delves into Vietnam’s approach to the recognition and enforcement of foreign arbitral awards, examining historical perspectives and court decisions that highlight the application of public policy in refusing enforcement.
Notably, the thesis provides a compelling case study of six different decisions viii throughout the years, illustrating the complexities and implications of public policy in the enforcement landscape. Through a comparative analysis of intemational standards and practices, the thesis identifies areas of convergence and divergence between Vietnam’s approach and global norms. The research findings have implications not only for Vietnam but also for the broader international arbitration community, highlighting the importance of understanding the role of public policy in the recognition and enforcement of foreign arbitral awards. In conclusion, this thesis contributes to the existing body of knowledge by providing a comprehensive analysis of the recognition and enforcement of foreign arbitral awards in Vietnam, with a specific focus on the role of public policy.
The research findings enhance our understanding of the complexities surrounding this area of law and provide valuable insights for practitioners, scholars, and policymakers in Vietnam and beyond. Research rationale The thesis on the impact of public policy on commercial arbitration, with a particular emphasis on the recognition and enforcement of foreign arbitral awards in Vietnam, is crucial for a number of compelling reasons. First, this research is important because it contributes to the development and improvement of the legal framework that governs international commercial arbitration in Vietnam. This study fills an important void by shedding light on the complexities and challenges associated with the application of public policy in the jurisdiction, thereby contributing to the refinement of the legal framework and its alignment with intemational standards.
Examining the role of public policy in the recognition and enforcement of foreign arbitral awards, this study addresses a crucial aspect of the enforcement regime that has far-reaching implications for domestic and intemational parties. A robust and effective legal mechanism for enforcing arbitral awards is essential as Vietnam continues to position itself as an attractive location for international investments and cross-border transactions. In addition, the evolving nature of commercial arbitration in a global context necessitates this thesis. The recognition and enforcement of foreign arbitral awards is, a topic of significant global interest and importance, as it has a direct bearing on the enforceability and efficacy of arbitration as the preferred method of dispute resolution in international commercial transactions.
By examining international understandings and applications of public policy, this study provides valuable insights into the various approaches adopted by various jurisdictions. This comparative analysis enriches the academic discourse surrounding public policy and contributes to a broader understanding of the challenges and best practices associated with enforcing foreign arbitral awards internationally. Vietnam’s ever-changing legal landscape also highlights the importance of this research. As the nation continues to undergo legal reforms and align its legal system with international standards, the regime for enforcing foreign arbitral awards requires careful analysis and evaluation.
This research captures the current state of the enforcement framework in Vietnam and explores its implications for the recognition and enforcement of foreign arbitral awards by analysing recent legal developments and reforms. This analysis would be a vital resource for policymakers, practitioners, and scholars involved in formulating and implementing legal reforms in Vietnam, facilitating informed decision-making, and advancing the legal system. Moreover, the current research is important because of the practical implications it has for businesses and investors engaged in cross-border transactions involving Vietnam. The recognition and enforcement of foreign arbitral awards have a direct bearing on the enforceability of contractual obligations, the protection of investments, and the general stability of the business environment.
By providing insights into Vietnam’s approach to the recognition and enforcement of foreign arbitral awards, this research equips stakeholders with a thorough understanding of the legal landscape and potential obstacles. Businesses, practitioners, and investors who wish to navigate the complexities of international arbitration, plus make informed decisions when entering into contracts and resolving disputes should possess this knowledge. In conclusion, the significance of this thesis ~ “Impact of Public Policy on Commercial Arbitration in Vietnam” stems from its contributions to the development of the legal framework for the recognition and enforcement of foreign arbitral awards in Vietnam, its insights into international practices and standards, its analysis of recent legal developments, and its practical implications for businesses and investors. By addressing these vital aspects, this research serves as a foundational resource that enriches academic discourse, informs policy decisions, and facilitates the effective operation of the Vietnamese arbitration regime.
Literature review Commercial arbitration has been demonstrated to be an effective altemative method of dispute resolution.