FORM OF THE ARBITRATION AGREEMENT
1. Legal Basis for the Formation of the Arbitration Agreement
According to Clause 2, Article 3 of the Law on Commercial Arbitration 2010 of Vietnam, an arbitration agreement is defined as an agreement between the parties to resolve by arbitration any dispute that has arisen or may arise. This agreement is based on the mutual and voluntary consent of the parties to select arbitration as their chosen dispute resolution mechanism.
Pursuant to Clause 1, Article 5 of the same Law, a dispute shall be resolved by arbitration only if there exists a valid arbitration agreement between the parties. Accordingly, the existence of a valid and enforceable arbitration agreement is a prerequisite for an arbitral tribunal to assume jurisdiction over a dispute.
The arbitration agreement may be entered into either before or after the dispute arises, thereby allowing the parties procedural flexibility. As stipulated in Article 16 of the Law, the arbitration agreement may take one of the following two forms:
- An arbitration clause in a contract: This is a contractual provision embedded in the principal contract, expressly providing that disputes arising out of or in connection with the contract shall be resolved by arbitration;
- A separate arbitration agreement: This is an independent written document executed by the parties that refers to the resolution of disputes by arbitration in respect of a prior or future contractual relationship.
2. Formal Requirements of the Arbitration Agreement
Pursuant to Article 16 of the Law on Commercial Arbitration 2010, an arbitration agreement must be made in writing to be legally effective. The term "in writing" is construed broadly and includes the following forms:
- A document signed by the parties;
- Exchange of telegrams, faxes, telexes, emails, or other forms of communication permitted by law that confirm the agreement;
- A written record made by a lawyer, notary public, or competent authority at the request of the parties;
- A reference in a contractual document, invoice, company charter, or other similar instrument that incorporates an arbitration agreement;
- The exchange of a statement of claim and statement of defense, in which one party alleges the existence of an arbitration agreement and the other party does not deny it.
These provisions ensure clarity, traceability, and enforceability of the arbitration agreement while allowing for practical modes of communication common in commercial transactions.
3. Legal Notes on the Form of the Arbitration Agreement
(Pursuant to Article 7 of Resolution No. 01/2014/NQ-HĐTP of the Judicial Council of the Supreme People’s Court)
To ensure the effectiveness and enforceability of the arbitration agreement, the following matters should be observed:
- Multiple arbitration agreements: Where multiple arbitration agreements have been executed with respect to the same dispute, the last valid agreement in chronological order shall prevail and be applicable;
- Ambiguous terms: In cases where the content of the arbitration agreement is unclear or susceptible to multiple interpretations, it shall be construed in accordance with the provisions on interpretation of contracts under the Civil Code;
- Assignment of contractual rights and obligations: When the rights and obligations under a contract containing a valid arbitration agreement are transferred to a third party, the arbitration agreement shall remain binding upon the assignee, unless otherwise agreed by the parties;
- Consolidation of disputes: The consolidation of multiple legal relationships into a single arbitral proceeding is permitted in the following cases:
- The parties have expressly agreed to such consolidation;
- The applicable arbitration rules allow for the consolidation of claims arising from multiple legal relationships.
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VIETNAM TRADE AND INVESTMENT ARBITRATION CENTER
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