Abstract: The concept of recognition and enforcement of foreign arbitral awards has long been established in the private international law, which can ben understood as a special procedure performed by the competent authority of the host country to consider the recognition of validity and enforcement of foreign arbitral awards within its territory. This special procedure is intended to sercue the resolution of jurisdictional conflicts and to present respect for each country’s jurisdiction.
1. Governing laws
Vietnam recognizes and enforces foreign arbitral awards based upon: the Convention on the Recognition and Enforcement of Arbitral Awards 1958 (New York Convention 1958); and the provisions in Chapters XXXVI and XXXVII of the Vietnam’s Code of Civil Procedure 2015 (CPC). Grounds to deny the recognition and enforcement of a foreign court judgement or arbitral award in Vietnam are stipulated by Articles 3, 4, and 5 of the New York Convention 1958, Articles 439 and 459 of the CCP.
2. Grounds for the recognition and enforecement of foreign arbitral awards in Vietnam
To request the recognition and enforcement of foreign arbitral awards in the Vietnamese territory, the creditors (or their legal representatives) shall submit an Application to competent Courts of Vietnam. However, not all foreign arbitral awards of said description will be accepted and considered by the Courts. Before receiving the Application and handling it in accordance with the laws, the Vietnamese Courts will examine whether such the Award meets the conditions to be taken into consideration of recognition and enforcement in Vietnam. In principle, an Application requesting for recognizing and enforcing foreign arbitral award will be accepted when:
(i) Such an award is the arbitral award of a foreign country which is a signatory to an International treaty about recognition and enforcement of foreign arbitral award together with Vietnam; or the recognition and enforcement shall be taken on the the basis of principle of reciprocity in case of none of international treaty exists;
(ii) Such an award shall be the final ones of the arbitral tribunal, resolving all the contents of the dispute, finish the arbitral procedures and are effective.
Satisfying the said-above conditions, the foreign arbitral award will be considered and recognized by the Vietnamese Court in accordance with the provisions of the CPC as well as relevant international treaties.
In principle, a foreign arbitral award will be recognized and enforced in Vietnam if it does not fall into the unrecognized and enforceable cases specified in Article 459 of the CPC, specifically:
Article 459. Cases of non-recognition
1. The Court shall not recognize a foreign arbitrator’s award when deeming that the evidences provided by the judgment debtors to the Court for appealing against the application for recognition are well-grounded and the arbitrator’s award falls within one of the following cases:
a) The parties of the arbitration agreement do not have capacity to conclude such agreement according to law applicable to each party;
b) The arbitration agreement is not legally effective according to the law of a country which is chosen to be applied or according to the law of where the award is made in case the parties cannot choose a law to be applied to such agreement;
c) The judgment debtors being agencies, organizations and individuals are not promptly and conformably notified of the appointment of arbitrator officer and of procedures for processing the disputes at foreign arbitrator, or due to other plausible reasons, such agencies, organizations and individuals cannot exercise their procedure rights;
d) The foreign arbitrator’s award over a dispute is not requested to be settled by any parties or exceeds the request of parties of the arbitration agreement. If it is able to separate the parts of the decision on the matter which are requested and not requested to be settled at foreign arbitrator, the decision on the matter requested to be settled may be recognized and enforced in Vietnam;
dd) Compositions of foreign arbitrator and/or procedures for settlement of disputes conducted by foreign arbitrator is not conformable to the arbitration agreement or to the law of the country where the foreign arbitrator’s award has been made, in case the arbitration agreement does not provide for such matters;
e) The foreign arbitrator’s award has not taken compulsory legal effect on parties;
g) The enforcement of the foreign arbitrator’s award has been canceled or terminated by a competent agency of the country where such award is made or the home country of the law that is applied.
2. The foreign arbitrator’s award shall not be recognized is the Vietnam’s Court deems that:
a) According to Vietnam’s law, the dispute shall not be settled according to arbitral procedures;
b) The recognition and enforcement in Vietnam of foreign arbitrator’s award are contrary to basic principles of law of the Socialist Republic of Vietnam.
3. Time limit and subject to request recognition and enforcement
According to Article 451 of the CPC, the statute of limitations for submission of application for recognition and enforcement is 03 years from the date on which the foreign arbitral award takes legal effect, unless the creditors prove that they fail to submit the Application due to force majeure event or external obstacles. Under that case, the time of such force majeure events or external obstacles shall not be included in the application submission time limit.
The subjects entitled to request recognition and enforcement of the Award shall be: (i) the creditors; (ii) persons with relevant legitimate rights and interests; or (iii) their legal representative (hereinafter referred to as “the creditor”).
4. Competent authorities to recognize and enforce foreign arbitral awards
Pursuant to Articles 31, 37, 39, 425 and 451 of the CPC, the competent Court handling the recognition and enforcement of foreign arbitral awards in Vietnam is the People’s Court of the province where Vietnamese enterprises – the person who has to enforce the foreign arbitral award is headquartered or the People’s Court of the province where the assets related to the enforcement of the foreign arbitral award are located.
Note that the creditor may submit their application to Vietnam’s Ministry of Justice according to provisions of International treaty to which Vietnam is a signatory or to a competent Vietnam’s Court specified in the CPC, in case the International treaty to which Vietnam is a signatory does not provide for or there is no relevant International treaty provisions.
5. Composition of required documents
Components of the initial dossier to request recognition and enforcement in Vietnam of a foreign arbitral award include:
- An application for recognition and enforcement of judgments;
- The original or a certified copy of the Arbitration Agreement;
- The original or a certified true copy of the Arbitral Awardi;
Papers and documents enclosed with the application that are in foreign languages must be enclosed with their Vietnamese versions which are duly notarized or authenticated.
Basically, the procedure of recognition and enforcement in Vietnam of Foreign Arbitral Awards will include the following steps:
Should Clients need further information on this issue in Vietnam, feel free to contact ALB & Partners Law Firm. With a team of experienced lawyers, some of whom are former judges and arbitrators, we are recognized and appreciated by Clients as one of the leading law firms in the field of arbitration in Vietnam.
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