Decision no. 05/2017/QDKDTM-ST dated july 21, 2017 on petition for recognition and enforcement of foreign arbitral award in vietnam

PEOPLE’S COURT OF HANOI CITY

DECISION NO. 05/2017/QDKDTM-ST DATED JULY 21, 2017 ON PETITION FOR RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARD IN VIETNAM

On July 21, 2017, at the head office of People’s Court of Hanoi City, a public meeting is held to consider the petition for recognition and enforcement of foreign arbitral award in Vietnam No. 01/2017/TT dated January 9, 2017 according to the Decision to Open Meeting No. 133/2017/QD-MPH dated June 5, 2017; Decision to Postpone the Meeting No. 151/2017/QD-HPH dated June 20, 2017 between:

Award creditor: GI Company

Headquartered at B 3, P.O. B 1363, CH, Baar, T; authorized representatives: Mr. Nguyen Duc C and Mr. Chu Bao K (according to the Letter of Authorization dated October 11, 2016) (Mr. K: present; Mr. C: absent).

Award debtor: T Investment and Development Joint Stock Company

Headquartered at 52 Nguyen Binh K, L D H Ward, H District, Hanoi City; legal representative:  Mr. Tran Trong H, General Director (Mr. H: absent).

Specific issues that the award creditor require the Court to resolve:

Representation of representative of award creditor GI Company (hereinafter referred to as award creditor) in the petition dated November 29, 2016 and subsequent depositions:

The award creditor and T Investment and Development Joint Stock Company (hereinafter referred to as award debtor) signed the Contract No. CXL44594 dated December 10, 2014 on wholesale of Australian coke, modified by Annex No. 1 dated January 8, 2015 and Annex No. 2 without the date of signing, but signed by Rolf Stuessi on behalf of the award creditor about May 11, 2015 and agreed by the award debtor at the same time (“Contract”), the award creditor agreed to sell and the award debtor agreed to buy and receive 50,000 tons of Oaky Creedk clean coke of Australia, +/- 10% deviation because of transportation.

After the trial, the Arbitral Tribunal of SIAC concluded that the award debtor committed breach of the contract when it did not guarantee the opening of the Letter of Credit as required in the Contract.  The award debtor have declined and refused to acknowledge debt and pay for goods sold under the Contract. In addition, the Arbitral Tribunal also concluded that the above action of the award debtor is a breach in the form of refusal to perform the contract, whereby the award creditor agrees to terminate the Contract on May 22, 2015. The Arbitral Tribunal has decided that the award debtor must be responsible for all damages and losses that occur as a result of breach of contract.

Regarding arbitration agreements, Arbitral Tribunal and laws applicable to dispute settlement:

The award creditor and the award debtor have agreed on governing law and agreed that arbitrator is the dispute settlement body when a dispute arises out under Article 13 of the Contract, in specific: "This Contract, including arbitration clause, governed, understood and interpreted in accordance with the laws of Singapore, not including the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980 (CISG).  Any dispute arising out of or in connection with this Contract, including disputes on the formation, validity or termination of the Contract, shall be referred to and resolved by arbitration according to the Rules of the Singapore International Arbitration Center ("SIAC Rules"), in force at that time, which are considered to be specified in this Contract by reference to this Article.  The place for arbitration dispute resolution is in Singapore.  The Arbitral Tribunal consists of 3 people. The language used in arbitration proceedings is English.  The law governing the Contract is the applicable laws of England and Wales. SIAC's decision is considered final and binding for the Parties."

Complying with the arbitration agreement mentioned above, on May 22, 2015, the award creditor brought the dispute to settle through SIAC under the Arbitration Rules of SIAC (SIAC case No. 091 2015 (ARB091/15/JJ). The place for arbitration dispute resolution is in Singapore.

 Regarding Arbitral Award:

After the arbitration process, the Arbitral Tribunal issued a Partial Award No. 060 of 2016 on May 16, 2016 and the Final Award No. 101 of 2016 on August 31, 2018 ("Awards").  According to these Awards, the award debtor has the following obligations:

The award debtor must pay the award creditor a claim amount of USD 2,255,000 (two million and two hundred and fifty five thousand US dollars) for loss of market value and USD 776,000 (seven hundred seventy six thousand U.S. dollars) for the amount payable to pay for the damages for detention and other requirements.  Total USD 3,031,000 (three million and thirty one thousand US dollars).

The award debtor must pay to the award creditor:

- The amount of interest on USD 2,225,000 related to the loss of market value until and including June 6, 2016: USD 56,816.14 (fifty six thousand eight sixteen fourteen US dollars).

- The amount of interest on USD 776,000 above related to the amount payable to pay for the damages for detention and other requirements until and including June 6, 2016: USD 18,283.89 (eighteen thousand two hundred and eighty three point eighty nine US dollars).

- The subsequent interest from and including June 7, 2016 until the payment is made with a daily interest of USD 220.89 (two hundred and twenty eight and eighty nine US dollars).

- Cost of the arbitration: SGD 305,268.38 (three hundred and five thousand two hundred and sixty eight and thirty eight Singapore dollars).

- Legal costs and other expenses of GBP 90,239.44 (ninety thousand two hundred and thirty nine and forty four pounds).

On November 29, 2016, the award creditor submits a petition for recognition and enforcement of the above arbitral award in Vietnam as prescribed in Article 424 and Article 425 of the Civil Procedure Code, because Vietnam is the place where the award debtor is incorporated and where the award debtor is headquartered.  Singapore is the place to conduct arbitration proceedings between the award creditor and the award debtor, they are all member states of the 1958 New York Convention on the Recognition and Enforcement of arbitral awards in member countries.

The award debtor has been duly summoned by the Court but has been absent and has not sent documents to present its views during the whole process of resolving the case and today's hearing is the waiver of its rights and obligations.

At today's meeting:

Representation of representative of award creditor: The award creditor still retains the requirements and requests the Meeting Council to make a decision on recognition and enforcement in Vietnam the Partial Award No. 060 in 2016 on May 16, 2016 and Final Award No. 101 of 2016 on August 31, 2018 of Singapore International Arbitration Center (SIAC).

The representative of the People’s Procuracy of Hanoi City expresses opinions as follows:

In terms of court procedures: People’s Court of Hanoi City's acceptance of recognition and enforcement of Arbitral Award is accordant with Clause 5 Article 31 of the Civil Procedure Code. Presiding officers and Meeting Council have complied with Articles 457 and 458 of the Civil Procedure Code.

At today’s meeting, the award creditor has complied with laws and regulations, and has presented bases to protect its rights and legitimate interests.

The award debtor was duly served by the Court with legal documents of the Court. However, the award debtor is absent at the today’s meeting without any reasons. This is the opening of the 3^rd meeting, the absence of the award debtor without any reason can be interpreted as waiver of its rights and obligations. The Court opens the meeting in the absence of the award debtor in accordance with provisions of the Civil Procedure Code.

Regarding the contents of the case: Request the Meeting Council to consider recognition and enforcement in Vietnam the Partial Award No. 060 in 2016 on May 16, 2016 and Final Award No. 101 of 2016 on August 31, 2018 of Singapore International Arbitration Center (SIAC) because this arbitral award is accordant with basic principles of Vietnam’s laws. The litigants have an agreement in the contract to choose arbitration for dispute settlement and the arbitrator has carried out the proceedings in accordance with SIAC Rules.

CONSIDERING THAT

After consideration of documents in the business case file assessed and the adversarial process at the court hearing, the Trial Panel judges as follows:

According to the provision of Clause 4, Article 458 of the Civil Procedure Code, the Meeting Council does not reconsider the dispute resolved by foreign arbitration but only checks and verifies foreign arbitral awards, papers and documents attached to the provisions in Chapter XXXV and Chapter XXXVII of the Civil Procedure Code, other relevant provisions of Vietnamese law and international treaties to which the Socialist Republic of Vietnam is a signatory to serve as a basis for making a decision to recognize or not recognize that award.  Documents in the case file show that:

- The award creditor and the award debtor have agreed: any dispute arising out of or in connection with the Contract No. CXL44594 dated December 10, 2014, including disputes on the formation, validity or termination of the Contract, shall be referred to and resolved by arbitration according to the Rules of the Singapore International Arbitration Center ("SIAC Rules"), in force at that time, which are considered to be specified in this Contract by reference to this Article.  The place for arbitration dispute resolution is in Singapore.  The Arbitral Tribunal consists of 3 people. The language used in arbitration proceedings is English.  The law governing the Contract is the applicable laws of England and Wales. SIAC's decision is considered final and binding for the Parties. Accordingly, the dispute between the parties resolved at the Singapore International Arbitration Center (SIAC) is conformable to the parties' agreement.

- Regarding the serving of procedural documents to the award debtor:  the procedural proceedings of the Singapore International Arbitration Center (SIAC) have been sent to the award debtor via email and by post at the address No. 52 Nguyen Binh K, L D H Ward, District H, Hanoi City according to the correct address and email address stated in the Contract (case file p. 135-170). The award debtor has received the notice of the official hearing, but the award debtor was still being absent, the Arbitral Tribunal conducted the trial in absence of the award debtor in compliance with the SIAC Rules.

The award debtor has received a Partial Award No. 060 of 2016 on May 16, 2016 of the Arbitral Tribunal of Singapore International Arbitration Center and has the right to appeal against this Award within 14 days from the day on which the Award is received.  However, the award debtor gave no opinion, indicating that the award debtor has given up their right to appeal.

In the Final Award No. 101 of 2016 dated August 31, 2018, it verified the sending of email of the Partial Award No. 060 in 2016 on May 16, 2016 of the Arbitral Tribunal of Singapore International Arbitration Center to the award debtor, as showed in the Microsoft Outlook report sent on May 16, 2016 (at 11:14) regarding mail delivery, then "the delivery of the mail to recipients or group of recipients has been completed, but there is no notification of mail delivery from target server sales@trungdzung.vn (sale@trungdzung.vn)”.

 Thus, the dispute resolution procedure of Arbitral Tribunal of SIAC is in accordance with the SIAC Rules. Furthermore, the decision of Partial Award No. 060 of 2016 on May 16, 2016 and Final Award No. 101 of 2016 on August 31, 2018 is not contrary to the basic principles of Vietnam’s law. Therefore, the Meeting Council has grounds to recognize and enforce in Vietnam the Award of Singapore Arbitration.

During the process of resolving the recognition and enforcement in Vietnam of SIAC, the Court has taken evidence of business information of the award debtor at the Department of Planning and Investment of Hanoi City. According to the documents provided by the Department of Planning and Investment of Hanoi City for People’s Court of Hanoi City:

The award debtor is located at 52 Nguyen Binh K, LDH Ward, District H, Hanoi City; legal representative: Mr. Tran Trong H - Position: Director General; permanent residence and address: No. 5, Alley 61 T, T Q Ward, D District, Hanoi City.

The Court served procedural documents to the award debtor to the address of the company and habitual residence of Mr. Tran Trong H. However, Mr. H, representative of the award debtor, did not appear in the Court and perform the rights and obligations. Therefore, the Court opens the meeting to consider the petition for recognition and enforcement in Vietnam of the Award of SIAC in absence of the legal representative of the award debtor as prescribed in Article 458 of the Civil Procedure Code.

Regarding charges: The award creditor has to pay the charge for business.

Based on the above-mentioned facts and matters,

Pursuant to 

HEREBY DECIDES

- Pursuant to Clause 5 Article 31, Article 37, Article 149, Article 424, Article 425, Article 426, 4 Article 458, Article 460 and Article 461 of the Civil Procedure Code;

- Article 38 of the Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 on court fees and charges, exemption, reduction, collection, transfer, management and use thereof.

Hereby decides:

1. Recognize and enforce in Vietnam the Partial Award No. 060 in 2016 on May 16, 2016 and Final Award No. 101 of 2016 on August 31, 2018 of Singapore International Arbitration Center (SIAC).

 2. Regarding charges: GI Company has to pay the charge for petition for recognition and enforcement of foreign arbitral award in Vietnam of VND 3,000,000 (three million dong). Certify that GI Company paid VND 4,000,000 (four million dong) according to the receipt of advance on court fees and charges No. 09969 dated December 26, 2006 at the Department of Civil Judgment Enforcement of Hanoi City. GI Company may be refunded VND 1,000,000 (one million dong) overpaid at Department of Civil Judgment Enforcement of Hanoi City.

Any litigant present at the hearing may rightfully appeal this decision within 15 days from the decision issuance. Any litigant absent at the hearing may rightfully appeal this decision within 15 days from the day on which the decision is duly served.

The People’s Procuracy has the right to protest this decision as per the law.