Arbitration, although seen as a separate dispute resolution method from the court, throughout the dispute resolution process at arbitration, to a certain extent, the Court can play an important role in the arbitration proceedings to take place effectively and comply with the provisions of law. In this article, TNTP will point out the interplay of the Court in arbitration proceedings.
1. The Court’s Assistance before arbitration
Article 6 of the Law on Commercial Arbitration 2010 illustrates that if the Court receives a petition, but the provisions in the Contract show that the dispute will be resolved by arbitration, the Court will return the petition, except in some special cases such as the arbitration agreement is void, unenforceable; disputes that allow the choice of court to resolve the dispute despite the arbitration clause such as disputes between suppliers of goods and services and consumers, etc. Rejecting a petition when there is an arbitration clause shows the Court’s recognition of the contract’s arbitration clause.
2. The Court’s Assistance during the arbitration process
During the arbitration proceedings, the assistance of the Court may appear at different stages of the arbitration proceedings, specifically as follows:
2.1. Forming Ad hoc Arbitral Tribunal
• Pursuant to Article 41 of the Law on Commercial Arbitration 2010, in case the timeline for selecting an arbitrator or chairman of the arbitration council has passed but one or more parties have not yet selected an arbitrator/chairman of the Arbitral Tribunal, they may request the Court to select an arbitrator/chairman of the Arbitral Tribunal.
• In addition, Clause 3, Article 42 of the Law on Commercial Arbitration 2010 allows the Court to decide on changing the Arbitrator upon request of the parties or the arbitrator in case the remaining members of the Arbitral Tribunal cannot decide on changing the arbitrator or if the Arbitrators or the Sole Arbitrator refuse to resolve the dispute.
2.2. Resolving complaints related to the jurisdiction of the arbitration
• In case arbitration does not have the jurisdiction to resolve the dispute, a party has the right to file a Complaint to request the competent Court to review the decision of the Arbitral Tribunal regarding the consideration of the Arbitral Tribunal’s jurisdiction.
• If the Court decides that the dispute is not within the jurisdiction of arbitration, there is no arbitration agreement, the arbitration agreement is invalid or the arbitration agreement is unenforceable, the parties have the right to initiate a lawsuit in Court unless otherwise agreed.
2.3. Collecting the evidence
• In case the Arbitral Tribunal or the parties have applied necessary measures to collect evidence but still cannot collect it themselves, they may send a written request to the competent Court to request the agency, organization or individual to provide readable, audible, visible documents or other exhibits related to the dispute. Upon receiving the request, the Court will issue a written request to the agency, organization or individual that is managing or preserving the evidence to provide the Court.
• Upon receiving evidence provided by the agency, organization or individual, the Court must notify the Arbitral Tribunal and the requesting party to proceed with the delivery of the evidence. If the agency, organization or individual fails to provide the evidence as requested within the prescribed time limit, the Court must immediately notify the Arbitral Tribunal and the requesting party and at the same time issue a written request to the competent agency or organization to handle it in accordance with the provisions of law.
2.4. Summoning witnesses
• If a witness fails to attend the meeting without a valid reason despite being duly summoned by the Arbitration Council, and his absence adversely affects the arbitration proceedings, the Court shall, upon request of the Arbitral Tribunal, summon the witness to the meeting.
• Upon receiving the request, the Court shall issue a decision to summon the witness and send this decision to the Arbitral Tribunal, the witness, Procuracy at the same level to perform functions and duties.
2.5. Applying temporary emergency measures
• After filing a lawsuit, if a party finds that its legitimate rights and interests are at risk of being directly infringed or have actually been infringed, they have the right to request the Court to apply temporary emergency measures. The Court shall issue a decision to apply temporary emergency measures immediately after the applicant has implemented the security measures. In case the request is not accepted, the Judge must notify the applicant in writing and state the reasons.
• A party has the right to request the Court to change, supplement or cancel the temporary emergency measures. During the dispute resolution process, the Court shall not apply the temporary emergency measures that a party has requested the Arbitral Tribunal to apply, except in cases where the request is not within the jurisdiction of the Arbitral Tribunal.
3. The Court’s Assistance after the proceedings
When the arbitration proceedings have ended and the Arbitral Award has been issued, the Court may still assist the parties involved in the Arbitral Award with the following activities:
3.1. Registration of the Arbitral Award
According to Article 62 of the Law on Commercial Arbitration 2010, before requesting the competent Civil Judgment Enforcement Agency to enforce the arbitration award, the requesting party must register the award at the provincial People’s Court where the Arbitral Tribunal issued the Award.
3.2. Annulment of the Arbitral Award
In case one of the parties finds that the Arbitral Award is subject to annulment, within 30 days from the date of receipt of the Arbitral Award, that party has the right to submit a request to annul the Arbitral Award to the competent Court. Upon receipt of the request, the competent Court shall establish a review council and hold a meeting to consider the request to annul the arbitration award.
3.3. Recognition and enforcement of foreign arbitral awards
• Pursuant to Article 425 of the 2015 Civil Procedure Code, foreign arbitral awards of which Vietnam and that country are members of an international treaty on recognition and enforcement of foreign arbitral awards or foreign arbitral awards on the basis of the principle of reciprocity may be recognized and enforced in Vietnam.
• It should be noted that, according to Article 451 of Civil Procedure Code 2015, the person entitled to enforcement, the person with related rights and legitimate interests or their legal representative must submit a request to the Vietnamese Court to recognize and enforce in Vietnam the foreign Arbitral Award within 03 years from the date the foreign Arbitral Award takes legal effect.
In general, the Court is always present and supports arbitration activities throughout all stages, from the beginning of the arbitration proceedings until the time after the Arbitral Award has been issued.
Above is the article “Judicial support for arbitration activities” that TNTP sends to readers.
Sincerely,
