The 1958 Convention on Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”) has facilitated the global enforcement of arbitration agreements and awards. By the Vietnam’s accession to the New York Convention in 1995, foreign arbitration agreements and awards can be recognized and enforced in Vietnam. Our article will provide an outline on Vietnam laws and regulations concerning the recognition and enforcement of foreign arbitral awards in Vietnam.
Under the 2005 Civil Proceedings Code of Vietnam, “Foreign Arbitral Awards” are defined as arbitral awards rendered outside Vietnam, or by non-Vietnamese arbitrator within Vietnam. Vietnamese Courts will only consider an application for recognition and enforcement of an award made in or by arbitrators of a Contracting State to the New York Convention. For arbitral awards made in territory of non-contracting state, their enforcement in Vietnam will be considered and approved on reciprocity basis.
The person or entity seeking recognition and enforcement of a foreign arbitral award in Vietnam must, either directly or via his representative, file a petition to the Ministry of Justice of Vietnam. The petition shall include the following information: i) Name and address of the person or entity seeking the enforcement, ii) name and address of the person or entity against whom the enforcement is sought; location and description of the properties which are related to the enforcement of the award in Vietnam, and iii) Claim by the person or entity seeking the enforcement.
Documents that must be attached to the Petition include a duly certified copy of the foreign arbitral award and the relevant arbitration agreement. All documents, if made in foreign languages, must be translated into Vietnamese. The translation must be notarized or certified in accordance with the relevant laws and regulations of Vietnam.
Within seven days from the receipt of the Petition and attached documents, the Ministry of Justice will forward the file to the competent court, which is the provincial court where the person against whom the enforcement is sought resides or, in the case of an entity, where its office is located, or the location of the property concerned by the award.
Within 3 days from the receipt of the file, the Competent Court shall check the file for acceptance and notify the person or entity against whom the enforcement is sought and the Procuracy of the same level. Within two months from the date of acceptance, unless the petition examination process is suspended pursuant to the laws, the Court will issue a Decision to open a court meeting to examine the petition, which shall be held within 20 days from the date of such Decision.
Examination of the Petition
The court meeting to examine the petition will be conducted by a Panel of 3 judges under the supervision of a Prosecutor from the Procuracy of the same level. If the person against whom the enforcement is sought, duly summoned, fails to appear at the meeting for an acceptable reason, the session will be postponed. However, the meeting will be conducted in his absence if it is so requested by him, or if he fails to appear at the meeting again after the second summons. The presence of the applying party is not mentioned in the Civil Proceeding Code.
The Panel shall only examine the procedural issues in accordance with Vietnam Laws and applicable international treaties and subsequently issue a Decision either to recognize and enforce a foreign arbitral award in Vietnam or to refuse the recognition and enforcement of the same. The merit of the award shall not be reviewed under the 1958 New York Convention.
The recognition and enforcement of a foreign arbitral award may be refused if:
the parties lacked the capacity to sign the arbitration agreement in accordance with the law applicable to each party;
the arbitration agreement is invalid under the applicable law;
the person or entity against whom the recognition and enforcement of the award is invoked did not receive due notice of appointment of arbitrators or the arbitration proceedings or for other legitimate reasons the respondent could not exercise its rights in the proceedings;
the foreign arbitral award was made where no settlement was requested or was beyond the request of the disputing parties;
the composition of the arbitration body and/or the arbitration proceedings was not in accordance with the arbitration agreement of the parties or the applicable law;
the award is not yet binding on the parties; or
the award has been overruled or suspended by competent authorities of the countries where the award was made or whose law was the governing law.
The Court may also refuse the recognition and enforcement of a foreign arbitral award if, subject to its judgment, i) the dispute should not be resolved by arbitration under the laws of Vietnam or, ii) the recognition and enforcement of such award is contrary to the "basic principles of the laws of Vietnam".
Appeal and Protest
The concerned parties have the right to make an appeal against the Court Decision within 15 days from the receipt of such decision. The Court decision may also be protested by the Procuracy of the same level or a higher one. In that case, the recognition and enforcement of the award will finally decided by the People’s Supreme Court within one month from the date of receipt of the appeal or the protest.
The Court Decision on recognition and enforcement of a foreign arbitral award shall be cancelled in the case where there is a notification from the Ministry of Justice that such award has been overruled by the competent authorities of the countries where such award was made or whose law was the governing law.
A foreign arbitral award which has been recognized and approved to be enforced in Vietnam shall have the same legal effect as a judgment given by a Vietnam Court, and shall be enforced through a mechanism stipulated in the 2008 Law on Enforcement of Civil Court’s Judgment of Vietnam.
By Tran Anh Hung
BROSS & Partners