The settlement of disputes by arbitration method is considered as a convenient out-of-court dispute settlement method, flexible and fast procedures; have finality; keep business secrets as well as the reputation of enterprises in the market. However, the dispute of the Parties must meet the conditions to be resolved by arbitration. In the following article, TNTP will provide an overview of the Key point to consider in arbitration agreements.
I. First, there must be an arbitration agreement
● Pursuant to Clause 1, Article 5 of the Law on Commercial Arbitration 2010, disputes can be settled by arbitration if the parties have an arbitration agreement. The arbitration agreement may be drawn up before or after the dispute has arisen. Thus, the condition for resolving disputes by arbitration is to have an arbitration agreement.
● An arbitration agreement may be a dispute settlement clause written in a separate contract or agreement, may be an Appendix attached at the time of signing the Contract or signed by the parties after a dispute arises in the form prescribed in Article 16 of the Law on Commercial Arbitration 2010.
According to TNTP’s dispute settlement experience, TNTP proposes that the parties, when signing the Contract, should always stipulate in the Contract about the dispute settlement clause to avoid cases when a dispute arises, one party wants to initiate a lawsuit at Arbitration but the other party always avoids signing attached annexes or agreements to settle disputes at Trong talent.
II. Second, the form of the arbitration agreement is established in accordance with the law
The arbitration agreement must be established in writing. The following forms of agreement are also considered established in writing:
● The Agreement shall be established through exchange between the parties by telegram, fax, telex, email and other forms as prescribed by law;
● The agreement is established through the exchange of written information between the parties;
● The agreement is recorded in writing by a lawyer, notary or a competent organization at the request of the parties;
● In the transaction, the parties have a reference to a document showing the arbitration agreement such as contracts, documents, company charters and other similar documents;
● Through the exchange of the lawsuit and the self-defense which demonstrates the existence of an agreement made by one party and not denied by the other.
The arbitration agreement is completely independent of the contract. The change, renewal, cancellation of the contract, the contract is invalid or unenforceable does not invalidate the arbitration agreement.
III. Third, the arbitration agreement does not fall under the circumstances of statutory invalidity
In addition to the necessary condition that an arbitration agreement is required, a sufficient condition to apply the arbitration method is that the arbitration agreement does not fall into the following invalid cases:
● Disputes arising in areas not within the jurisdiction of Arbitration, that is, cases where the arbitration agreement established to settle the dispute does not fall into the following cases: Disputes between parties arising from commercial activities; Disputes arising between parties in which at least one party has commercial activities; Other disputes between the parties provided for by law shall be resolved by Arbitration.
● The person establishing the arbitration agreement does not have jurisdiction under the provisions of law, i.e. the person establishing the arbitration agreement when he is not a legal representative or is not a legally authorized person or is a legally authorized person but exceeds the scope of authorization.
In principle, an arbitration agreement established by a person without jurisdiction, such arbitration agreement is null and void. Where the arbitration agreement is established by a person without jurisdiction but in the process of establishing and performing the arbitration agreement or in the arbitration proceedings that the person competent to establish the arbitration agreement has accepted or known without objection, the arbitration agreement shall not be invalid.
● The person establishing the arbitration agreement has no civil act capacity, i.e. a minor, a person who has lost civil act capacity or a person with limited civil act capacity. In this case, the Court needs to collect evidence to prove that the person establishing the arbitration agreement does not have civil act capacity, must have documents proving the date of birth or conclusion of the competent authority or the decision of the Court determined, declaring that the person has lost civil act capacity or has limited civil act capacity.
● The form of the arbitration agreement is inconsistent with the provisions of Article 16 of the Law on Commercial Arbitration.
● One of the parties is deceived, threatened or coerced in the process of establishing an arbitration agreement, which is the case specified in Article 4, Article 123 of the Civil Code.
● The arbitration agreement violates the prohibition of law, which is an agreement in the case specified in Article 123 of the 2015 Civil Code.
Pursuant to the above conditions, the effective condition of the arbitration agreement is that the parties must have an arbitration agreement, the form in accordance with the law and not in cases where the arbitration agreement is invalid.
Above is the article: ” Key point to consider in arbitration agreements”. We hope this article was useful to you.
Respect.
