Can arbitrators in Vietnam settle disputes to which they have related interests?
Can arbitrators in Vietnam settle disputes to which they have related interests?
Under the provisions of Point b, Clause 1, Article 42 of the Law on Commercial Arbitration 2010 on the change of arbitrators:
Change of arbitrators
1, An arbitrator shall refuse to settle a dispute and the parties may request a change of an arbitrator to settle the dispute in the following cases:
a/ The arbitrator is a relative or representative of one party:
b/ The arbitrator has an interest related to the dispute;
c/ There is a clear ground to conclude that the arbitrator is neither impartial nor objective;
d/ The arbitrator was a conciliator, representative or lawyer of one party before the dispute is brought to arbitration for settlement. unless such is consented in writing by the parties.
2. After being selected or designated, the arbitrator shall notify in writing the arbitration center or arbitration council and parties of the circumstances which may affect his/her objectivity or impartiality.
3. For a dispute to be settled at an arbitration center, pending the formation of an arbitration council, the arbitration center's chairman shall decide on the change of an arbitrator. If the arbitration council has been formed, such change shall be decided by other members of the arbitration council. When these members cannot make decision or if the arbitrators or the sole arbitrator refuse(s) to settle the dispute, the arbitration center's chairman shall decide on change of the arbitrator.
4. For a dispute to be settled by an ad hoc arbitration council, change of an arbitrator shall be decided by other members of the arbitration council. When these members cannot make decision or if the arbitrators or the sole arbitrator refuse(s) to settle the dispute, within 15 days after receiving a request from the arbitrator(s) and one disputing party or all disputing parties, the president of the competent court shall assign a judge to decide on change of the arbitrator.
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According to the above provisions, an arbitrator shall refuse to settle a dispute and the parties may request a change of an arbitrator to settle the dispute to which the arbitrator has a related interest.
Thus, the arbitrator is not allowed to settle a dispute to which he or she has a related interest.
What is the administrative fine imposed on arbitrators who settle disputes to which they have related interests in Vietnam?
Under Point b, Clause 1, Article 27 of Decree 82/2020/ND-CP stipulating violations against the regulations on the operation of arbitrators:
Violations against the regulations on the operation of arbitrators
1. A fine of between VND 10,000,000 and VND 20,000,000 shall be imposed for one of the following acts:
a) Settle disputes in cases where arbitrators are relatives or representatives of a party to the dispute;
b) Settle disputes in cases where arbitrators have related interests to the dispute;
c) Settle disputes in cases where arbitrators are already conciliators, representatives, or lawyers of one of the parties before bringing such disputes to arbitration unless otherwise approved in writing by the parties;
d) Settle disputes when there are clear grounds to show that the arbitrator is not impartial and objective.
2. A fine of between VND 20,000,000 and VND 30,000,000 shall be imposed for one of the following acts:
a/ Disclose the contents of the dispute that they have settled, except for cases where they have to provide information to competent authorities as prescribed by law;
b) Act as commercial arbitrators without meeting the required qualifications and requirements.
3. Remedial measures:
Forcible return of illegal profits obtained from the commission of violations specified in Clauses 1 and 2 of this Article.
According to the above provisions, arbitrators who settle disputes to which they have related interests will be administratively fined from VND 10,000,000 to VND 20,000,000.
In addition, they are forced to return the illegal profits obtained from committing the violation as prescribed.
Do arbitrators in Vietnam have the right to refuse to provide dispute-related information?
Under Article 21 of the Law on Commercial Arbitration 2010, the rights and obligations of arbitrators are stipulated as follows:
Rights and obligations of arbitrators
1. To accept or refuse to settle disputes.
2. To be independent in dispute settlement.
3. To refuse to provide dispute-related information.
4. To enjoy remuneration.
5. To keep secret the circumstances of disputes they settle, unless they have to provide information to competent state agencies under law.
6. To ensure impartial, fast and prompt settlement of disputes.
7. To adhere to the rules of professional ethics.
Thus, according to the above provisions, arbitrators in Vietnam have the right to refuse to provide dispute-related information.
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