Resolution No.01/2014/NQ-HDTP Guidelines for Law on Commercial Arbitration

RESOLUTION

GUIDELINES FOR THE LAW ON COMMERCIAL ARBITRATION

COUNCIL OF JUDGES OF THE PEOPLE’S SUPREME COURT

Pursuant to the Law on organization of People’s Courts;

For the purpose of adherence to the Law on Commercial arbitration which is passed by the National Assembly on June 17, 2010 and takes effect on January 01, 2011 (hereinafter referred to as LCA);

After obtaining opinions from the Chief Procurator of the Supreme People’s Procuracy and the Minister of Justice,

RESOLVES:

Article 1. Scope of regulation

This Resolution provides guidelines for some regulations of LCA on the entitlements and proceedings of Courts applied to arbitration; registration of arbitral awards.

Article 2. Determination of entitlements to resolve cases between arbitral tribunals and courts according to LCA

1. Arbitral tribunals are entitled to resolve the disputes mentioned in Article 2 of LCA if the parties concerned have an arbitration agreement prescribed in Article 5 and Article 16 of LCA, except for the cases mentioned in Clause 3 of this Article.

2. When the court is requested to resolve one of the disputes mentioned in Article 2 of LCA, the court shall request either party to provide information about whether such dispute is under an arbitration agreement. The court shall examine documents enclosed with the petition to determine whether such dispute is one of the cases mentioned in Clause 3 of this Article as follows:

a) If the dispute is not under an arbitration agreement, or an effective judgment or decision has been given by a court, or an effective tribunal award determines that the dispute is not under an arbitration agreement, the court shall consider undertaking and handling the case within its competence.

b) If the dispute is under an arbitration agreement and such arbitration agreement is not any of the cases mentioned in Clause 3 of this Article, the court shall return the petition and documents enclosed therewith to the plaintiff pursuant to Point d Clause 1 Article 168 of the Civil Procedure Code 2014, which is amended in the Law on amendments to the Civil Procedure Code (hereinafter referred to as the Civil Procedure Code).

If the court finds that the dispute is under an arbitration agreement and such arbitration agreement is not any of the cases mentioned in Clause 3 of this Article after the case is undertaken by the court, the court shall issue a decision to terminate the adjudication, return the petition and documents enclosed therewith to the plaintiff pursuant to Point i Clause 1 Article 192 of the Civil Procedure Code.

c) If the court is requested to resolve a dispute that is being handled by an arbitral tribunal, the court shall terminate the adjudication and return the petition to the plaintiff even if the court finds that the dispute is not within the competence of the arbitral tribunal, not under an arbitration agreement, or the arbitration agreement is not any of the cases mentioned in Clause 3 of this Article, unless the court undertakes the case before the arbitral tribunal is requested to handle it. If the plaintiff requests the court to handle the case after a decision or award is issued by the arbitral tribunal as prescribed in Articles 43, 58, 59, and 61 of LCA, the court shall consider undertaking and handling the case under common procedures.

3. In one of the following cases, the dispute shall be handled by the court though it is under an arbitration agreement, unless otherwise agreed by the parties concerned or prescribed by law:

a) The court issues a decision to annul the arbitral award or the decision made by the arbitral tribunal to certify the parties’ agreement made;

b) There is a decision to suspend the arbitral tribunal or arbitration center from resolving disputes as prescribed in Clause 1 Article 43, Points a, b, d, and dd Clause 1 Article 59 of LCA;

c) The dispute is one of the cases mentioned in Clauses 1, 2, 3, and 5 Article 4 of this Resolution.

4. In case the parties have an agreement to have the dispute resolved both by an arbitral tribunal and a court, such agreement is not changed and not any of the cases in Clause 3 of this Article, the dispute that arises shall be handled as follows:

a) If the plaintiff requests an arbitral tribunal to resolve the dispute before requesting the court to do so or before the case is undertaken by the court as prescribed in Point b Clause 4 of this Article, the court shall refuse to undertake the case pursuant to Article 6 of LCA. In this case, the court shall return the petition. If the case has been received, the court shall issue a decision to terminate the adjudication because it is beyond the competence of the court, return the petition and documents enclosed therewith to the plaintiff pursuant to Point i Clause 1 Article 192 of the Civil Procedure Code.

b) In case the plaintiff requests the court to resolve the dispute: right after receiving the petition, the court must determine whether an arbitral tribunal is requested by either party to handle the case.

Within 05 working days from the receipt of the petition, if the court finds that the dependant or the plaintiff has requested an arbitral tribunal to resolve the dispute, the court shall return the petition to the plaintiff. If no arbitral tribunal is requested by the dependant or the plaintiff to resolve the case, the court shall undertake the case and handle it under common procedures.

If the court has undertaken the case and then finds that an arbitral tribunal is requested to resolve such case before it is undertaken by the court, the court shall, pursuant to Point i Clause 1 Article 192 of the Civil Procedure Code, issue a decision to terminate the adjudication because it is beyond the competence of the court, return the petition and documents enclosed therewith.

Article 3. Void arbitration agreement prescribed in Article 6 and Article 18 of LCA

An arbitration agreement is void if it is one of the cases mentioned in Article 18 of LCA. After declaring an arbitration agreement void, the cases below should be considered:

1. “The dispute that arises is related to the fields beyond the competence of arbitral tribunals” prescribed in Clause 1 Article 18 LCA means the case in which an arbitration agreement is negotiated to resolve the disputes related to the fields other than those mentioned in Article 2 of LCA.

2. “The arbitration agreement is negotiated by incompetent persons as prescribed by law” in Clause 2 Article 18 means the arbitration agreement is negotiated by persons other than legal representatives or authorized persons, or authorized persons that act beyond his/her authorized entitlements.

If arbitration agreement principles are established by incompetent persons, such arbitration agreement is void. If the arbitration agreement is negotiated by incompetent persons but the persons competent to negotiate arbitration agreements accept it or do not object to it during the negotiation or arbitral proceedings, such arbitration agreement is not void.

3. “The arbitration agreement is negotiated by persons in capable of civil acts as prescribed by law” prescribed in Clause 3 Article 18 means the minors or the persons incapable of civil acts. In this case, the court must collect evidence that the person that negotiates the arbitration agreement are not capable of civil acts, including papers bearing his/her date of birth, a conclusion by a competent authority or declaration by a court that such per person is not capable of civil acts.

4. “Format of the arbitration agreement is not conformable with Article 16 of LCA” prescribed in Clause 4 Article 18 of LCA means the case in which the arbitration agreement is not negotiated using the methods mentioned in Article 16 of LCA and the guidance in Article 7 of this Resolution.

5. “Either party is cheated, threatened, or forced to reach the arbitration agreement” prescribed in Clause 5 Article 18 of LCA means the case in which either party is cheated, threatened, or forced according to Article 4 and Article 132 of the Civil Code.

6. “The arbitration agreement contravenes the law” prescribed in Clause 6 Article 18 of LCA means any arbitration agreement in the cases prescribed in Article 128 of the Civil Code.

Article 4. The arbitration agreement is not viable as prescribed in Article 6 of LCA

“The arbitration agreement is not viable” as prescribed in Clause 6 Article 18 of LCA means any arbitration agreement in the cases below:

1. The parties concerned have an agreement to resolve their disputes at a specific arbitration center which has now shut down without any arbitration center that inherit its cases, and the parties concerned fail to reach an agreement on another arbitration center to resolve their disputes.

2. Bother parties have an agreement on appointment of a specific arbitrator to resolve disputes, but when the dispute arises, because of force majeure events or objective difficulties, such arbitrator cannot resolve the case, or the arbitration center or court cannot find a substitute arbitrator as agreed by the parties concerned, and the parties concerned also fail to reach an agreement to select a substitute arbitrator.

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Article 19. Effect

1. This Resolution is passed by the Council of Judges of the People’s Supreme Court on March 20, 2014 and takes effect on July 02, 2014. Instructions provided by the People’s Supreme Court before the effective date of this Resolution are annulled from July 02, 2014.

2. Difficulties that arise during the implementation of this Circular should be reported to the People’s Supreme Court for timely explanation and instructions.