THE PROCESS OF DRAFTING AND SUBMITTING A LAWSUIT PETITION FOR THE DISPUTE SETTLEMENT BY COMMERCIAL ARBITRATION IN VIETNAM
By the advantages of flexibility, commercial arbitration is currently the preferred method of dispute settlement for many enterprises. For the beginning of proceedings to settle the lawsuit by commercial arbitration, the enterprise needs to carry out the procedure to submit a lawsuit petition to request Arbitrators for settlement (“Petition”). In this article, we would like to share our legal experience guiding the process of drafting and submitting a lawsuit petition for the dispute settlement by Commercial Arbitration.
1. Some issues to note before drafting and submitting the Petition
1.1. The parties’ agreement for the dispute settlement by commercial arbitration
When the parties want to settle a dispute by Commercial Arbitration, they must agree with each other on the method of dispute settlement by Commercial Arbitration. Under the law, an arbitration agreement can be made before or after a dispute arises in the form of a term in the contract or an independent agreement. Therefore, in case the parties have not yet reached an arbitration agreement but want to proceed with the dispute settlement at commercial arbitration, then the parties can negotiate to supplement a term on the method of dispute settlement by Commercial Arbitration in the contract or enter into a written arbitration agreement.
1.2. The statute of limitations for initiating a lawsuit
In addition, under the regulation of law, unless otherwise provided by discrete laws, the statute of limitations according to arbitral procedures is 2 years from the time of the infringement of lawful rights and interests. Therefore, the parties should note the statute of limitations for initiating the lawsuit at Commercial Arbitration not to lose the right to initiate the lawsuit due to the expiration of the statute of limitations and to draft and submit the Petition for the dispute settle settlement by Commercial Arbitrator accordingly.
1.3. The form of dispute settlement
The parties can select the form of dispute settlement at an Arbitration Center and under its procedural rules (“Institutional arbitration”), or appoint Arbitrators and agree on procedural rules under the law (“Ad-hoc Arbitration”). Depending on the form of dispute settlement selected by the parties, methods of submitting the petition are different. For details on these methods, please refer to Item 3.1 below.
2. Drafting the Petition
2.1. The form and contents of the Petition
The form and content of the Petition for the dispute settlement by Commercial Arbitration must comply with the provisions of law. Accordingly, the petitioner can draft a Petition that meets the form and content specified by law or use the Petition Form of the Arbitration Centers.
The petitioner can refer to the Petition Form issued by the Vietnam International Arbitration Center (VIAC) below:
2.2. Some issues to note in the process of drafting the Petition
(i) Briefly and objectively summarizing the case and specifically presenting the grounds proving that the legitimate rights and interests of the petitioner are infringed so that the Arbitral Tribunal can understand the case and determine the grounds for consideration and dispute settlement.
(ii) Specifically presenting figures data, debts, compensation (in a correct currency such as Vietnam Dong, US Dollar…), in particular, the total disputed value since it is an important basis for determining the arbitration charge.
(iii) Specifically and accurately presenting the information of the Arbitrator appointed by the petitioner.
(iv) The petitioner must submit the Arbitration Agreement and documents and evidence attached to the Petition to prove that his or her requests are grounded and lawful.
3. The submission of the Petition
3.1. Methods of the submission
After preparing the Lawsuit Dossier (including the Petition, the Arbitration Agreement, and relevant documents and evidence), the petitioner can submit the Lawsuit Dossier as follows:
(i) In case the dispute is settled in the form of the Ad-hoc Arbitration, the petitioner must send the Lawsuit Dossier to the defendant. The defendant will then send a Self-defense Statement to the petitioner and appoint Arbitrators. At that time, the formed Arbitral Tribunal will consider the Petition and the Self-defense Statement of the parties.
(ii) In case the dispute is settled by the Arbitration Center, the petitioner can submit the Lawsuit Dossier to the Arbitration Center by 02 following methods: (a) Directly submitting to the Arbitration Center; (b) Sending to the Arbitration Center by post.
3.2. Results of the submission
(i) In case of the dispute is settled in the form of the Ad-hoc Arbitration, the Arbitral Tribunal will decide on the arbitration charge advance and the parties will carry out further proceedings under the agreed procedural rules.
(ii) In case the dispute is settled by the Arbitration Center, after receiving the lawsuit dossier, the petitioner will be required to pay the arbitration charge advance and the payment receipt. After that, the Arbitration Center will notify the defendant of the lawsuit and the parties will carry out the procedure for selecting Arbitrators, forming Arbitral Tribunal to settle the lawsuit under the Arbitration Center’s procedural rules.
Above are our legal shares on the process of drafting and submitting a Petition for the lawsuit settlement by Commercial Arbitration. We hope that the article can help you better understand this process and effectively draft and submit the Petition when participating in the lawsuit settlement by Commercial Arbitration to protect your legitimate rights and interests.
TNTP & Associates International Law Firm