NEED TO MODIFY THE LAW ON COMMERCIAL ARBITRATION 2010
TO MEET PRACTICE'S REQUIREMENTS
TO MEET PRACTICE'S REQUIREMENTS
Law on Commercial Arbitration was passed by the 12th National Assembly in the 7th session on June 17, 2010. With the implementation of more than ten years, from the view of experts, besides the positive achieved, the Law has revealed many existing limitations. Therefore, the study, amendment, and completion of the Law on Commercial Arbitration to meet practice's requirements, to improve the efficiency of arbitration in Vietnam, is an urgent requirement in the current period.
Regarding this issue, Doctor-Lawyer Nguyen Thanh Nam - Permanent Vice President cum Secretary General of the Vietnam Trade and Investment Arbitration Center (VTIAC) gave an interview to Vietnam Television (channel VTV2) in the program named "Business and Law: Law on Commercial Arbitration - Some inappropriateness". The full text of the interview is given below:
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Reporter: Sir, can you evaluate some achievements of the method of commercial dispute settlement by arbitration in recent years?
Dr-Lawyer. Nguyen Thanh Nam: Arbitration is one of the four methods of resolving disputes accepted by law, besides negotiation, mediation, and court proceedings. The condition for the parties to settle disputes by arbitration is that the parties must have an arbitration agreement. The arbitration agreement may be made either prior to or after a dispute arises. Thus, thanks to arbitration, the involved parties have more opportunities to choose a method of dispute resolution. The settlement of disputes through arbitration helps the parties to maximize their autonomy and self-determination with simple, convenient, and highly confidential procedures and helps their disputes to be resolved quickly with the final award. At the same time, the parties have the right to choose arbitrators, who are reputable and knowledgeable in settling disputes, so the results of this are often ensured with correctness and reasonableness.
Reporter: Sir, there is an opinion that some arbitration jurisdictions in commercial arbitration law are limited. What is your opinion on this issue?
Dr-Lawyer. Nguyen Thanh Nam: I fully agree with this view. In my opinion, it is not advisable to limit the dispute that the arbitrators are entitled to settle as commercial disputes, but expand the scope of those in general. On the other hand, it is necessary to review and ensure the synchronization of the legal system when determining that the arbitration has the same jurisdiction as the court (the difference here is that the arbitration's jurisdiction is agreed upon by the parties, while the court's jurisdiction is prescribed by law). Another example of the limitation of arbitration compared to the court is that the court has the right to summon witnesses having related rights and obligations, while the arbitrator does not, which makes it difficult for the arbitrator to carry out the trial.
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Reporter: Sir, Which grounds for setting aside an arbitral award are provided in the current law? There are opinions that these regulations are not clear and cause many inadequacies. What is your opinion on this matter?
Dr-Lawyer. Nguyen Thanh Nam: The grounds for setting aside arbitral award are provided in Article 68 of the Law on Commercial Arbitration 2010, according to which, the arbitral award is set aside in one of the following cases: i) There is no arbitration agreement or arbitration agreement is void; ii) The composition of the arbitral tribunal was [or] the arbitration proceedings were inconsistent with the agreement of the parties or contrary to the provisions of this Law; iii) The dispute was not within the jurisdiction of the arbitration tribunal; where an award contains an item which falls outside the jurisdiction of the arbitration tribunal; iv) The evidence supplied by the parties on which the arbitration tribunal relied to issue the award was forged; [or] an arbitrator received money, assets or some other material benefit from one of the parties in dispute which affected the objectivity and impartiality of the arbitral award; v) The arbitral award is contrary to the fundamental principles of the law of Vietnam.
Among the grounds for setting aside the arbitral award mentioned above, the fifth one "Arbitral award is contrary to fundamental principles of the law of Vietnam" is unclear and causes many inadequacies in practical application. Because there is no explanation about what is the fundamental principle of the law, thus, in practice, the court may refer to circulars of ministries or local government resolutions and decisions as grounds for setting aside the arbitral award, which is quite arbitrary and reduces the preeminence or confidence of the disputing parties when choosing an arbitration.
Reporter: Thank you very much for this interview.