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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
Socialist Republic of Vietnam (Vietnam).
2. Date of entry into force of the New York Convention
11 Dec. 1995.
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Yes. Vietnam only considers the recognition and enforcement of arbitral awards made within the territory of another Contracting State of New York Convention. With respect to arbitral awards made in the territories of non-contracting States, it will apply the Convention on the basis of reciprocity.
(b) commercial relationships?
Yes. Vietnam has made a reservation for commercial relationships. Accordingly, awards involved in non-commercial disputes, e.g. matrimonial or criminal disputes, are not qualified for recognition and enforcement in Vietnam.
(Source:Â http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/NYConvention_status.html.)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Yes. Arbitral awards made in the territory of Vietnam but rendered in foreign arbitrations shall not be considered as domestic arbitral awards under Vietnamese laws. Accordingly, the said awards must be subject to recognition and enforcement procedure.
(Source: Civil Procedure Code of the 2015, Art. 424; The 2010 Law on Commercial Arbitration of Vietnam, Art. 3, paras. 11 and 12.)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes.
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
An application for recognition and enforcement of an arbitral award must be filed within three years as from the date the award has legal effect. Under the LCA, the date the award has legal effect will be as from the date of its issuance.
(Source: CPC, Art. 451.1; LCA, Art. 61.5.)
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The award creditor may:
(i) file an application to the Ministry of Justice if the provisions of any international treaty to which Vietnam is a signatory requires that the application for recognition and enforcement be submitted to the Ministry of Justice, e.g. the bilaterial judicial assistance agreement in civil matters between Vietnam and the Kingdom of Cambodia (2013) or between Vietnam and Kazakhstan (2011); or
(ii) directly submit to the provincial competent court of Vietnam if the relevant international treaty on recognition and enforcement of foreign arbitral awards, such as the 1958 New York Convention, does not set out the competent authority to receive the application or there is no relevant international treaty.
In the first case, after examining the application dossier, the Ministry of Justice shall transfer the case files to a provincial Court which has the jurisdiction over recognition and enforcement of foreign awards.
Accordingly, if the foreign arbitral awards are governed by the New York Convention, the award creditor could directly submit the application to the competent court. Pursuant to the CPC, the first-instance competent court is the court of provincial level where (i) the debtor resides (if the debtor is individual) or has its headquarters (if the debtor is an entity), or (ii) where the property subject to the enforcement is located.
(Source: CPC, Arts. 451.1, 454.1, 37.1.b, 39.2.e)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
In order for the Ministry of Justice or competent court to accept jurisdiction over recognition and enforcement of foreign arbitral awards, the award debtor must be domiciled/headquartered, or a relevant asset must exist within the territory of Vietnam.
(Source: CPC, Art. 39.2(e).)
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision on recognition and enforcement are obtained through inter partes proceedings. At the hearings, there shall be the participation of: (i) a hearing panel including three judges, (ii) a procurator representing the competent procuracy, and (iii) the award debtor and the award creditor (or their representatives). However, if the award debtor (or its representative) is absent twice or requests the court to consider the petition in its absence, the court shall still proceed with the hearing to consider the application for the recognition and enforcement.
(Source: CPC, Art. 458, paras. 1, 2, and 3.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
(b) How many levels of appeal or recourse are available against this decision?
In general, two. Firstly, the first instance decision may be appealed to a High People’s Court upon the appeal of a party or the protest of the procuracies. Then, the decision rendered by a High People’s Court may be subject to cassation or retrial procedures.
(Source: CPC, Arts. 461, 462.6.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
An award creditor could request for execution against assets in Vietnam only when the decision granting the recognition and enforcement of foreign arbitral awards takes legal effect. A first-instance decision shall take effect 15 days after its issuance if it is not appealed against (which is the earliest possible time for the award creditor to request for execution). An appellate, cassation, or retrial decision shall take legal effect as soon as it is issued.
(Source: CPC, Arts. 349, 427.3, 461, 482.1(d); LECJ, Art. 2.1 (d).)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing arbitration clause, affidavits, witness statements, etc.)?
Unless otherwise required by an international treaty that Vietnam has ratified, the applications for recognition and enforcement of foreign arbitral awards in Vietnam must be enclosed with:
However, in practice, award creditors are often requested to further provide a business registration certificate to prove the signatory capacity of the legal representative who signed the application. Additionally, during the process of legal proceeding, the court may request the parties to provide other evidence such as the company charter of parties, business registration certificate of the award debtor, or other documents to prove the signatory capacity of the parties’ representatives and/or the proper conduct of the arbitration, for example affidavits/ legal opinions on foreign laws and written confirmations of international express couriers to prove actual service, etc.
(Source: New York Convention, Art. IV; CPC, Art. 453.1.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
For the purpose of recognition and enforcement of foreign arbitral awards in Vietnam, it is required to provide the entire foreign arbitral award and the entire contract which contains the arbitration agreement.
(c) Are originals or duly certified copies required?
The documents enclosed with the application must be either originals or duly certified copies which are notarized, legalized and translated into Vietnamese before submitting to the Ministry of Justice or the court.
(Source: CPC, Art. 453.)
(d) How many originals or duly certified copies are required?
The 1958 New York Convention and CPC do not provide for the number of set of documents to be submitted together with the application. However, in practice, the award creditors are often required to submit one original set of documents which is duly notarized and legalized and translated into Vietnamese language, and three certified copies thereof.
(e) Does the authority or court keep the originals that are filed?
The original set of documents will be kept by the court.
13.
(a) Is it necessary to provide a translation of the documents supplied?
According to Art. 453.2 of the CPC, the award creditors are required to provide the translation of the documents enclosed with the application to submit to the court.
(Source: CPC, Art. 453.2.)
(b) If yes, into what language?
The required documents must be translated into Vietnamese language.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
The Vietnamese translation must be made by a qualified translator who is a collaborator of a notary public office. The translator shall sign every page of his/her translations before the notary public certified such translations.
(Source: Law on Notarization no. 53/2014/QH13 dated 26 June 2014, Art. 61, in force as from 1 Jan. 2015.)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
It is required to provide a full translation of the entire foreign arbitral award and the entire contract which contains the arbitration agreement. Other documents may be partially translated on a case-by-case basis.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. The court shall issue a decision to stay the legal proceedings for recognition and enforcement of the foreign arbitral award if the foreign arbitral award is being re-considered by a competent agency of the country where the award is rendered. Even after a decision recognizing an arbitral award is issued by the court, the enforcement of such decision could be suspended when the court receives the written notification of a competent foreign authority which is considering the request for appealing or setting aside the foreign arbitral award.
(Source: CPC, Arts. 457.2(a), 463.1.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
The court could further stay legal proceedings for consideration of the application for recognition and enforcement of the foreign arbitral awards if (i) the award debtor (individual) has died or the award debtor (agency/organization) has been merged, amalgamated, divided or dissolved without successor; or (ii) the award debtor (individual) lacks legal capacity but his/her lawful representative has not been determined.
The enforcement of the decision recognizing and enforcing a foreign arbitral award can also be suspended where the Chief Justice of the Supreme People’s Court of Vietnam or the Head of the Supreme People’s Procuracy of Vietnam issues a decision on suspension of enforcement following cassation, a retrial procedure, or enrolment of request/application for insolvency of the award debtor.
(Source: CPC, Art. 457.2. (b) and (c) and Art. 463; LECJ, Art. 49.)
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
No.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
Since Vietnamese law is silent in respect of whether the documents filed in legal proceeding for recognition and enforcement form part of the public record, the regulations on the confidentiality of the evidence in general civil proceedings shall apply. Accordingly, all the evidence, documents filed in legal proceedings for recognition and enforcement form part of the public record. There are only some cases where the evidence would be preserved confidential such as contents related to State secrets, fine customs and practices of the nation, professional secrets, business secrets, family secrets or individuals' privacy at the legitimate requests of the involved parties.
Accordingly, a party may file a request to the Court to protect the confidentiality of documents if such documents fall within one of the abovementioned categories.
(Source: CPC, Art. 109.2.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
The hearings on recognition and enforcement, as other court trials, are not confidential. A party may submit a request for a confidential hearing only in some specific cases i.e. State secrets, nation’s fine customs and practices, protect minors, keep professional and business secrets, individuals’ privacy at the request of the involved parties.
(Source: CPC, Art. 15.2.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
The court judgments on recognition and enforcement, as a general rule, are published and posted on e-portal of the Court (http://dichvucong.toaan.gov.vn/ or https://congbobanan.toaan.gov.vn/, in Vietnamese only). However, to avoid the publication of confidential information, the party requesting the preservation of confidentiality must prove that the publication of the court judgements would result in the violation of State secrets, nation’s fine customs and practices, professional secrets, business secrets, individuals’ privacy, family secrets, national and public interests, or the legitimate rights and interests of agencies, organizations and individuals.
(Source: CPC, Arts. 269.4, 315.3, 350.2; Resolution 03/2017/NQ-HDTP dated 16 March 2017 of the Council of Judges of the Supreme People’s People Court regarding the publication of court decision and judgement on the e-portal of the Court, in effect as from 1 July 2017, Art.2.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
In order to be recognized and enforced in Vietnam, a foreign arbitral award must be an arbitral decision resolving the entire dispute, terminating the arbitral procedures and being effective. Thus, the possibility of recognition and enforcement of foreign interim arbitral awards is excluded. Similarly, partial awards are not qualified as arbitral awards for recognition and enforcement under Vietnamese laws.
(Source: CPC, Art. 424.2; LCA, Art. 3.10.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
A party can obtain recognition and enforcement in Vietnam of non-monetary relief in foreign arbitral awards. However, in practice, such arbitral awards may be difficult to enforce.
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
If a foreign arbitral award rendered over a dispute exceeds the parties’ request in the arbitration agreement, part of the relief granted in such award on the matter requested to be settled by the parties may be recognized and enforced by the Court in Vietnam. The award creditor could also request the enforcement agency to enforce only part(s) of the relief granted in foreign awards.
(Source: CPC, Art. 459.1(d); LECJ, Art. 7.1(a).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
Vietnamese courts do not consider recognition and enforcement of foreign arbitral awards set aside by the competent authority of the country in which the arbitral awards were rendered. Even if the court issued a decision recognizing and enforcing a foreign arbitral award in Vietnam, such decision will be repealed if the court receives a notice in writing with regard to the setting aside of such arbitral award by the foreign competent authorities.
(Source: CPC, Arts. 459.1(g); 463.2.)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
The submission of a request for recognition and enforcement of a foreign arbitral awards requires the payment of filing fees of VND 3,000,000.00 (approx. USD 132). To appeal the decision of the first instance court, parties are required to pay an additional appeal court fee advance of VND 300,000 (approx. USD 13). Furthermore, when applying for execution of the court judgement on recognition and enforcement, the award creditor shall pay an enforcement fee which is calculated basing on the actual amount which the award creditor will receive from the execution procedure.
Secondly, Art. 459 Civil Procedure Code 2015 sets out nine grounds to refuse recognition of foreign arbitral awards which, by and large, resemble Art. V New York Convention. However, the violation of “public policy” under Art. V(2)(b) of the New York Convention is notably replaced by the violation of “fundamental principles of Vietnamese law”. Nevertheless, Vietnamese law does not provide for any official definition or detailed guidance to interpret this ground. In the context of annulment proceedings, they are only defined as “basic principles on conduct, whose effects are most overriding in respect of the development and implementation of Vietnamese law”. Thus, when considering the recognition, Vietnamese Courts sometimes rely on this ground to review the merits of the disputes and the content of the arbitral awards.
Another common ground often raised by the award debtor to object the recognition and enforcement of foreign arbitral awards, especially in ex-parte arbitration proceedings where the respondent does not participate in the arbitration but was still notified of the proceedings, is that it was not given proper notice of the appointment of the arbitrators or the arbitration proceedings, or was otherwise unable to present his case. The award creditor is thus, often required to provide the court with evidence proving that the award debtor has actually received these notices of the arbitral tribunal e.g. the receipt, minutes of delivery, etc., rather than evidence of serving, e.g. the express waybill of the couriers.
(Source: CPC, Art. 459.2(b) and Art. 459.1.c; Court cost and fee tariff attached to Resolution No. 326/2016/UBTVQH14 dated 30 Dec. 2016 of the Standing Committee of National Assembly, in force as from 1 Jan. 2017; Decree no. 62/2015/ND-CP dated 18 July 2015 of the Government guiding for law on enforcement of civil judgments, into force as from 1 Sept. 2015, Art. 46.)
Country Rapporteur: Nguyen Manh Dzung
Other contributors: Nguyen Thi Thu Trang and Nguyen Thi Mai Anh.