Resolution clarifies court's role regarding arbitration

27 August 2014
Vietnamnews

Resolution No 01/2014/NQ-HDTP (the "Resolution") issued by the Judge Council of the Supreme People's Court on March 20 guiding the implementation of several provisions of Law on Arbitration No 54/2010/QH12 (the "Arbitration Law") has broadened the court's competence over arbitration activities in resolving disputes.

Under the Arbitration Law, the Court shall refuse to handle a dispute which was agreed to be settled under arbitration procedures by the parties, provided that the arbitration agreement is still valid and capable of being performed in accordance with the laws.

To further clarify this point, the Resolution defines cases which are considered to be incapable of performing arbitration agreements and therefore can be resolved by the Court if requested by one party as follows:

(i) The parties agree to resolve their dispute at a specific arbitration centre, but such centre has terminated its operation without a successor and the party cannot reach an agreement on the selection of another arbitration centre to resolve their dispute;

(ii) The parties have a specific agreement on the selection of an ad hoc arbitrator but at the time a dispute arises, due to force majeure or other objective reasons, the ad hoc arbitrator cannot participate in settling the dispute or the arbitration centre cannot assign the arbitrator as agreed by the parties - and the parties cannot reach an agreement on selection of the arbitrator to resolve their dispute;

(iii) The parties have specific agreement on selection of an ad hoc arbitrator, but at the time a dispute arises, the arbitration centre or ad hoc arbitrator refuses such selection and the parties cannot reach an agreement on selection of the arbitrator to resolve their dispute;

(iv) The parties agree to resolve their dispute at a specific arbitration centre but agree to apply the procedural rules of another arbitration centre, and such procedural rules are not permitted in accordance with its charter and the parties cannot reach an agreement on selection of the arbitrator to resolve their dispute.

Moreover, in case the consumer does not agree with the arbitration clause in the general terms of goods and services provision prepared in a standard form by the goods or service providers in accordance with Article 17 of the Arbitration Law, the consumer is entitled to bring the dispute to the Court.

The Resolution also stipulates that in specific cases, the Court will accept jurisdiction over arbitration agreements in the event that the documents have been made as follows:

(i) Court's decision setting aside arbitration awards, decisions of the arbitration tribunal on recognition of the mutual agreement of the parties.

(ii) A decision suspending dispute settlement issued by an arbitration tribunal or arbitration centre in the following cases:

"The arbitration agreement is void and incapable of being performed;

"One party, being an individual, dies without a successor of his or her rights and obligations; being an agency or organisation has terminated its operation, become bankrupt, dissolved, consolidated, merged, demerged, separated or converted its structure without the new agency or organisation succeeding to the former's rights and obligations;

"The parties agree on the dispute settlement's termination;

"The Court's decision provides the dispute is not under the jurisdiction of the arbitration tribunal, or the parties have no arbitration agreement, or such arbitration agreement is invalid or incapable of being performed based on the parties' petition to the Court with respect to the above matter.

This Resolution took effect as of July 2, 2014.

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