How Violations of Fundamental Principles Causes Annulment of Arbitral Awards?

Arbitration award is final and binding upon the parties. The arbitral award takes effect from the date of its issuance and is not subject to appeal and protest which is a feature of dispute resolution through commercial arbitration. Therefore, the regulations on annulment of arbitral award should be carefully implemented to closely monitor these awards, ensure compliance with the laws and protect the interests of the parties involved. This is an important matters to discuss when lawyers specializing in dispute through commercial arbitration encounter when requested by the client to assist the enforcement of the arbitral awards under Vietnam laws.

 

Annulment of arbitral award also known as setting aside is means that the Court as a juridical authority is entitled to review such award upon request of parties in dispute in case there is a ground proving that the arbitral award belongs to one of the annulment cases under the laws. The competent court to take this action is the provincial court of locality at which the parties agree or at which the Arbitral tribunal given the award.

An arbitral award in contrary to the fundamental principles of Vietnam laws is one of five grounds to set aside. The Court is responsible for verifying and collecting evidences to determine whether or not to annul the arbitral award; the requesting party is responsible for other grounds.

Fundamental principles of Vietnam laws are the basic principles impacting the formation and implementation of Vietnam laws. Each law or code contains those principles on its own. Arbitration awards are respected by laws, however within the boundary permitted by laws to not infringe the interests of concerned parties and the national interests, which has been mostly referred to by the court.

When reviewing a request for annulment of arbitral award, the court shall determine whether the award violates any fundamental principle and how such principle concerns or bind the dispute settlement of arbitrator. The court shall set aside an arbitral award in case it contains decisions in contrary to any fundamental principle of Vietnam laws which are not abided by arbitral tribunal upon issue of the arbitral award and the arbitral award seriously infringe upon the interest of the state, the lawful rights and interests of either party or parties, third parties.

In order to apply this fundamental principle ground, the Court may review the application of substantive law decided by the Arbitral Tribunal, as such, the Court may review legal issues of case. In the meantime, Vietnam Courts are not entitled to review the substantive matters resolved by the arbitral tribunal when reviewing request of requesting parties, the Courts are permitted to refer annulment cases stipulated by laws and evidences proving its conclusion. Therefore, the above restriction conflicts with the ground which is annulment of arbitralawards caused by violation of fundamental principles of Vietnamese laws. In fact, to consider whether or not to violate the fundamental principles, the Courts seem to review the substantive matters of dispute to make an argument for its decision.

Hence to improve the efficiency and judicial system under Vietnam laws, it is expected that the fundamental principle ground to cause annulment arbitral award of arbitrator should be instructed in more detail in Vietnam laws to improve the independence of the Arbitral Tribunal and avoid the Vietnam Court trying to re-resolve the substantive matters.

ANT Lawyers – Arbitration law firm in Vietnam with international standard, local expertise and strong international network. We focus on customers’ needs and provide clients with a high quality legal advice and services. For advice or service request, please contact us via email ant@antlawyers.vn, or call us +84 24 730 86 529.

 

 

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What Are Procedures for Postponement at the First Instance Court?

In case that civil lawsuit cannot be mediated or cannot conduct the mediation, the Judge shall hold the meetings for checking the handover, access, disclosure of evidences and mediation. In cases there are many parties in a case and some of them are absent but present parties agree to conduct the meetings and the conduct of the meeting does not affect rights and obligations of absent parties, the Judges shall conduct meeting between present parties. If parties request to postpone the mediation meeting until all parties attend, the Judge shall postpone the meeting. The Judges must notify postponement and re-open of meeting to the parties. The litigation lawyers could be the best advisors to the client to utilize the procedures for the best interests of their client depending on the situation.

 

 Procedures for Postponement at the First Instance Court

In the first-instance court hearings, when being summoned duly the the Court for the first time, the parties or their representatives and defense counsels shall be present at the Court hearings. If any of them is absent, the Trial Panel shall postpone the Court hearings, unless such person requests for trial in his/her absence. The Courts must notify the postponement of the Court hearings to the parties, their representatives and defense counsels. When being summoned duly for the second time, parties or their representatives and defense counsels shall be present at the Court hearings unless they request for trials in their absence. If the absence is caused by a force majeure event or an objective obstacle, the Court may postpone the Court hearings, otherwise the Court shall handle as follows: (i) The absence of plaintiff without his/her representative shall be considered giving up the lawsuit initiation, thus the Court shall issue a decision to terminate the case resolution for his/her request for lawsuit initiation, unless such plaintiff requests for trials in their absence. The plaintiff may re-initiate lawsuits according to law provisions; (ii) If neither the defendant without counter-claims or a person with relevant interests and duties (relevant person) without independent claims nor his/her representative participates in the Court hearings, the Court shall conduct trial in their absence; (iii) If neither the defendant with counter-claims nor his/her representative participates in the Court hearings, such defendant shall be considered giving up the counter claims, thus the Court shall issue a decision to terminate the resolution for his/her counter claims, unless such defendant requests for trial in his/her absence. The defendant may re-initiate lawsuits for his/her counter-claims according to law provisions; (iv) If neither relevant person with independent claims nor his/her representative participates in the Court hearings, such person shall be considered giving up the independent claims, thus the Court shall issue a decision to terminate the resolution for his/her independent claims, unless such person requests for trial in his/her absence. Such person may re-initiate lawsuits for his/her independent claims according to law provisions; (v) If the defense counsels of the parties is absent, the Court shall conduct trial in their absence.

When the witnesses are absent, the Trial Panels shall decide to conduct trial or to postpone the court. The Trial Panels shall still conduct trial if the witnesses are absent but have earlier given their testimonies in person or sent their testimonies to courts. The presiding Judges shall make such testimonies public. The Trial Panels shall decide to postpone the Court hearings if the absence of the witnesses at Court creates difficulties or affects the objective and comprehensive resolution of the cases.

If the expert-witnesses are absent, the Trial Panels shall decide to conduct trial or to postpone the court. If the interpreters are absent without substitutes, the Trial Panels shall decide to postpone the Court hearings. If expert-witnesses or interpreters must be replaced, the Judges, the Trial panels or the Civil matter-resolving council shall issue decisions to postpone the Court hearings.

When any procedure participants are absent from Court hearings and it does not fall into the cases which the Courts must postpone the Court hearings, the presiding Judges must ask if there is any one requesting to postpone the Court hearings. If there is, the Trial Panels shall consider and decide to accept or not accept such request. In case of non-acceptance, the reasons must be clearly stated.

In addtion to absence and change of procedure participants, the change of procedure-conducting person may make the Court hearings be postponed. Firstly, in case of change of the Judge, People’s Jurors, Ombudspersons, Court clerks, procurators, the Trial Panels shall issue decisions to postpone the Court hearings.

Decision on postponing the Court hearings in above circumstances is made by Trial Panels and the time limit for postponing shall not exceed 01 month or not exceed 15 days, applicable to Court carried out under simplified procedure, from the day on which the decision to postpone the Court session is issued.

Having said that, the client could rely on the litigation lawyers in Vietnam for the solution in each case to protect the best interests if postponement procedures of the first instance trial could be applied.

 

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