PROOF OBLIGATIONS IN RECOGNITION AND ENFORCEMENT IN VIET NAM OF FOREIGN ARBITRATOR’S AWARDS

In the article “Recognition and enforcement of foreign Arbitrator’s Awards”, we have shared experiences on procedures to request the Court to recognize and enforce foreign Arbitrator’s Awards in Vietnam. In this article, we analyze the proof obligation of the involved parties in the Court’s process of reviewing and resolving the request for recognition and enforcement of foreign Arbitrator’s Awards. Whether an Arbitrator’s Award is certainly recognized and enforced or must meet other conditions for the recognition and enforcement in Vietnam? At that time, which subject must prove and how to prove for the recognition and enforcement in Vietnam of the foreign Arbitrator’s Award? We hereby analyze and clarify the above issues.

1. The proof obligation in recognition and enforcement of foreign Arbitrator’s Awards

1.1. Under provisions of Vietnamese law

Under Article 424 of the 2015 Civil Procedure Code, the following foreign Arbitrator’s Award shall be considered being recognized and enforced in Vietnam: (i) 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; (ii) Foreign arbitral award other than those specified in Item (i) based on the principle of reciprocity. Accordingly, the foreign Arbitrator’s Award is not certainly recognized and enforced but must be considered and decided by the competent Court.

The 2015 Civil Procedure Code does not stipulate that the party in favor of the foreign Arbitrator’s Award must prove his/her request, and he/she only need to submit a Request Letter attached with the foreign Arbitrator’s Award or an Arbitration agreement between the parties for the Court’s consideration.

Under Article 459.1 of the 2015 Civil Procedure Code, in case the party subject to the enforcement of the foreign Arbitrator’s Award protests against the request for recognition, he/she must provide materials and evidence to the Court to prove such protests are well-grounded … In addition, under Article 91.2 of the 2015 Civil Procedure Code, the involved parties protesting against other persons’ claims against them must present in writing and collect, supply and hand over materials and evidence proving such protests to the Courts.

Thus, the party in favor of the foreign Arbitrator’s Award is not obliged to prove the recognition and enforcement of the foreign Arbitrator’s Award. The Court will consider the request and the attached foreign Arbitrator’s Award to issue a decision to recognize and enforce the foreign Arbitrator’s Award under Vietnamese law and international treaties. And the party subject to the enforcement of the foreign Arbitrator’s Award must prove when they protest against the request for recognition in Vietnam of foreign Arbitrator’s Awards.

1.2. Under the 1958 New York Convention

Vietnam is a member of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitrator’s Awards. The provisions of the 1958 New York Convention on the proof obligation in the recognition and enforcement of Arbitrator’s Awards have similarities to those provided for in the 2015 Civil Procedure Code.

Accordingly, the 1958 New York Convention also does not stipulate the proof obligations of the parties in favor of foreign Arbitrator’s Awards, and only states the proof obligation of the parties subject to the enforcement of foreign Arbitrator’s Awards in case they protest against the recognition and enforcement of the award under Article 5 of the Convention.

These similarities show Vietnam’s efforts to internalize its national legislation according to international treaties to which Vietnam is a signatory and a member. They also show the agreement of Vietnamese civil law on the proof obligation in recognition and enforcement of the foreign Arbitrator’s Award as specified in the 1958 New York Convention.

2. Difficulties in the proof obligation of the party subject to the foreign Arbitrator’s Awards when protesting against the request for recognition and enforcement of such award

To protest against the request of the party in favor of the foreign Arbitrator’s Award for recognition and enforcement of such award, the parties subject to the enforcement of such award must provide materials and evidence proving that the award belongs to one of the cases of non-recognition under Article 459 of the 2015 Civil Procedure Code.

For example, in case the party subject to the enforcement of the foreign Arbitrator’s Award argues that the party in favor of such award does not have the legal capacity to sign the arbitration agreement. To protest the request for recognition and enforcement in Vietnam of the foreign arbitrator’s award, the party subject to the enforcement of such award must prove that under the legal system applying for the transaction between the parties, the representative of the party in favor of such award does not have the legal capacity to sign the arbitration agreement.

For another example, in case the party subject to the enforcement of the foreign Arbitrator’s Award assumes that some contents of the foreign Arbitrator’s Award are beyond the requests of the parties, he/she must prove that under the legal system applying for the transaction between the parties, the Arbitral Tribunal has resolved issues beyond the request of the party in favor of such award.

Thus, to prove the foreign Arbitrator’s Award belongs to one of the cases of non-recognition in Vietnam, the party subject to the enforcement of such award needs to understand and research not only Vietnamese law but also the legal system of the country where the arbitrator’s award is located and the law chosen by the parties to resolve the dispute as well as the procedural rules and dispute settlement procedures of the foreign Arbitration. The differences and variety of legal systems will make it difficult for the proof process of the party subject to the enforcement of the foreign Arbitrator’s Award.

With the above analysis and legal share of the proof obligation in recognition and enforcement in Vietnam of foreign Arbitrator’s Awards, we hope that the parties in the dispute can better understand their proving role in the process of requesting or protesting against the request for recognition and enforcement of the award to protect their legitimate rights and interests.

Best Regards.

TNTP and Associates International Law Firm