Recognition and Enforcement of Foreign Arbitral Awards in Vietnam

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1 CLICK TO EDIT MASTER TITLE STYLE Recognition and Enforcement of Foreign Arbitral Awards in Vietnam Hanh Tran, Partner, DFDL Vietnam Ho Chi Minh City 12 November 2018 BANGLADESH CAMBODIA INDONESIA LAO P.D.R. MYANMAR SINGAPORE THAILAND VIETNAM

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4 Presentation Outline Overview on key legal framework When can foreign arbitral awards be enforced in Vietnam? What is the process for the recognition and enforcement of foreign arbitral awards? Grounds for refusal of recognition and enforcement Procedures to be followed to enforce the award Traditional dispute resolution options 4

5 Overview on Key Legal Framework

6 Overview on Key Legal Framework The 1958 New York Convention (Vietnam became a member in 1995) The Civil Procedure Code 2015 The Law on Commercial Arbitration 2010 Resolution 01/2014 issued by the Supreme People s Court in 2014 on implementation of the Law on Commercial Arbitration

7 When can Foreign Arbitration Awards be Enforced in Vietnam?

8 When can Foreign Arbitration Awards be Enforced in Vietnam? When can Foreign Arbitration Awards be Enforced in Vietnam? Awards of arbitrators of a foreign country where such foreign country and Vietnam are both members of an international treaty on recognition & permission for enforcement of foreign arbitration awards (inter alia, a signatory state to the New York Convention 1958); or Awards of foreign arbitrators not falling under the case above, on the basis of the principle of reciprocity To be enforced in Vietnam, a foreign arbitral award must be formally recognized and held enforceable by a relevant Vietnamese court The court in Vietnam should not retry the case but may refuse recognition 8

9 What is the Process for the Recognition & Enforcement of Foreign Arbitral Awards?

10 What is the Process for the Recognition & Enforcement of Foreign Arbitral Awards? STEP 1 Petition for recognition and enforcement in Vietnam of foreign arbitral awards & supporting documents to the Ministry of Justice or the competent court (i) If the petition is submitted to the Ministry of Justice, the Ministry of Justice must forward the case file to the relevant competent court (ii) The competent court: the court of provincial level in which the award debtor resides (if an individual) or has its headquarters (if a company or organization) or the place where the property relating to the enforcement is located 10

11 What is the Process for the Recognition & Enforcement of Foreign Arbitral Awards? (cont.) STEP 2 Within 5 working days from the date of receiving the petition & its supporting documents The competent court must: Accept the case Notify: Award debtor Prosecuting agencies 11

12 What is the Process for the Recognition & Enforcement of Foreign Arbitral Awards? (cont.) STEP 3 The competent court will have 2 months (can be extended by another 2 months) to examine the case file to decide to: suspend theproceedings;or terminate the proceeding; or open a meeting session to consider the petition 12

13 What is the Process for the Recognition & Enforcement of Foreign Arbitral Awards? (cont.) STEP 4 Within 20 days from the date of the decision The competent court opens a meeting session for consideration of the petition 13

14 What is the Process for the Recognition & Enforcement of Foreign Arbitral Awards? (cont.) Recognizing and permitting enforcement in Vietnam STEP 5 After the meeting session The petition consideration council will issue a decision on: OR Non recognizing the award of the foreign arbitrators 14

15 Grounds for Refusal of Recognition & Enforcement

16 Grounds for Refusal of Recognition & Enforcement Incapacity of party Invalidity of arbitration agreement Lack of notice Arbitrator acting in excess of authority Arbitral process not consistent with arbitration agreement 16

17 Grounds for Refusal of Recognition & Enforcement (cont.) Award not yet binding Award set aside Dispute not arbitrable Award is contrary to the basic principles of the laws of Vietnam 17

18 Procedures to be Followed to Enforce the Award

19 Procedures to be Followed to Enforce the Award The parties are encouraged to comply with the award voluntarily Procedures set out in the Law on Enforcement of Civil Judgments 2008, as amended in 2014 If on expiry of the time limit for complying with the award, the award debtor has not voluntarily complied with the award: The award creditor has the right to request competent state enforcement agency to enforce such award 19

20 Procedures to be Followed to Enforce the Award (cont.) The award creditor generally has to submit a separate application to the competent state enforcement agency for an order enforcing the award The enforcement agency issues an enforcement decision and notifies the award debtor If the award debtor fails to comply within the 15 day period for voluntary compliance: The award debtor has 15 days to voluntarily comply with such decision & will be coerced into complying with the decision 20

21 Traditional Dispute Resolution Options

22 Traditional Dispute Resolution Options Int l Arbitration Local Arbitration Local Courts Professionalism ***** *** * Ethic/Transparency ***** *** * Quality of Decision ***** *** * Timeline *** *** ** Enforceability * *** **** Note: Comparison based on informal feedback from international clients 22

23 Thank you Hanh Tran Partner, Head of HCMC office, DFDL Vietnam 23

24 CLICK TO EDIT MASTER TITLE STYLE Excellence Creativity Trust Since 1994 BANGLADESH CAMBODIA INDONESIA LAO PDR MYANMAR SINGAPORE THAILAND VIETNAM BANGLADESH CAMBODIA INDONESIA LAO P.D.R. MYANMAR SINGAPORE THAILAND VIETNAM