PROCEDURES FOR PARTICIPATION IN THE DISPUTE SETTLEMENT BY COMMERCIAL ARBITRATION IN VIETNAM
In the previous article, we have introduced and guided the process of drafting and submitting a lawsuit petition for the dispute settlement by Commercial Arbitration. Please refer to the below link:
In this article, we continue to share our experiences on procedures for participation in the dispute settlement after the involved parties make the charge advance payment and the Arbitral Tribunal is formed.
1. Preparation for the dispute settlement
After the Arbitral Tribunal is formed, it will consider and prepare to settle the commercial dispute between the parties under the Arbitration Center’s procedural rules or the procedural rules agreed by the parties in case of Ad-hoc Arbitration. At this stage, the parties should note the following issues:
1.1. The validity of the arbitration agreement
Before considering the circumstances of the dispute, the Arbitral Tribunal will consider the validity of the arbitration agreement between the parties.
In case the arbitration agreement is invalid or unrealizable or the dispute falls beyond the Arbitral Tribunal’s jurisdiction, the Arbitral Tribunal will issue a decision to terminate the dispute settlement and immediately notify the parties thereof.
1.2. Verifying matters, collecting evidence, and summoning witnesses
The Arbitral Tribunal may meet or exchange with one party in the presence of the other party to clarify matters related to the dispute.
At the same time, the parties may request the Arbitral Tribunal to (i) verify matters from a third party; (ii) request witnesses to provide information; and/or (iii) request an appraisal and valuation of assets in the dispute or consultation of experts.
The Arbitral Tribunal may summon witnesses to appear at meetings to settle the dispute when necessary.
At that time, the Arbitral Tribunal will request the parties to pay expenses arising from the above requests, if any.
1.3. Requesting to apply interim urgent measures
The disputing parties have the right to request the Arbitral Tribunal apply interim urgent measures to protect their rights and interests unless otherwise agreed by the parties (“Requesting Party”). However, before applying interim urgent measures, the Requesting Party may be obliged to perform the financial security obligation at the request of the Arbitral Tribunal. During the dispute settlement, the parties have the right to request the Arbitral Tribunal to change, supplement or cancel the applied interim urgent measure.
2. The participation in meetings of the dispute settlement
Under the regulation of law, unless otherwise agreed by the parties or not otherwise provided by the Arbitration Center’s procedural rules, the Arbitration Tribunal must send summons to participate in the meeting to the parties at least 30 days before the meeting begins.
Unless otherwise agreed by the parties, the dispute settlement meeting will be held in private, on time, and venue for opening the meeting under the Arbitral Tribunal’s decision. The Arbitral Tribunal may allow others to participate in the dispute settlement meeting when agreed by the parties.
2.1. The absence of the parties
In case the plaintiff is absent without a plausible reason or leaves the meeting without the Arbitral Tribunal’s approval will be regarded as having withdrawn his/her petition. In this case, the Arbitral Tribunal will proceed with the dispute settlement if the defendant requests or files a counter-claim. On the contrary, if the defendant is absent without a plausible reason or leaves the meeting without the Arbitral Tribunal’s approval, the Arbitral Tribunal will still proceed with the dispute settlement based on available documents and evidence.
2.2. The conciliation between the parties
If one or both of the parties request conciliation to reach an agreement on the dispute settlement, the Arbitral Tribunal will conduct the conciliation for the parties.
During the conciliation, if such an agreement can be reached, the Arbitral Tribunal will make a record of successful conciliation and have it signed by the parties and certified by the Arbitrators. Then, the Arbitral Tribunal will issue a decision recognizing the parties’ agreement. This decision is final and as valid as an Arbitral Award.
When the parties fail to conciliate or do not request the conciliation, the Arbitral Tribunal will continue to settle the dispute. The dispute settlement result will be contained in the Arbitral Award.
2.3. The procedures of dispute settlement meetings
The procedures for holding the dispute settlement meeting will comply with the Arbitration Center’s procedural rules or the agreement between the parties.
At the end of the final meeting, the Arbitral Tribunal may issue an Award right at the meeting or within 30 days later.
3. Receiving the Arbitral Award
The disputing parties will receive the Arbitral Award right after the date of its issuance. At the same time, they may request the Arbitration Center or Ad-hoc Arbitral Tribunal to grant copies of the arbitral award to them.
The Arbitral Award is final and takes effect on the date of its signing. However, within 30 days after receiving the Award, a party may request the Arbitral Tribunal to correct, explain or supplement the requirements presented in the course of proceedings but not recorded in the Award, unless otherwise agreed by the parties.
4. The enforcement of the Arbitral Award
The parties must accept and voluntarily enforce the Arbitral Award. If the time limit for enforcing the Arbitral Award expires, the party to enforce the Arbitral Award fails to voluntarily enforce it and does not request to cancel it, the party in its favor may request in writing the competent civil judgment enforcement agency to enforce it.
For Ad-hoc Arbitration’s award, the party in its favor may request in writing the competent civil judgment enforcement agency to enforce it after it is registered under the law.
Above is our legal share on the procedures for participation in the dispute settlement by Commercial Arbitration. We hope that this article can help you better understand and take notes on these procedures to protect your legitimate rights and interests when participating in the dispute settlement by Commercial Arbitration.
Best regards.
TNTP & Associates International Law Firm
