In case the parties have an agreement to have the dispute resolved both by an arbitral tribunal and a court, who has right to handle the dispute in Vietnam?

In case the parties have an agreement to have the dispute resolved both by an arbitral tribunal and a court, who has right to handle the dispute in Vietnam?

Pursuant to Clause 4, Article 2 of Resolution 01/2014/NQ-HDTP stipulating determination of entitlements to resolve cases between arbitral tribunals and courts according to LCA as follows:

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.

Pursuant to Clause 4, Article 43 of the 2010 Commercial Arbitration Law, which stipulates consideration of invalid or unrealizable arbitration agreements, jurisdiction of an arbitration council is as follows:

4. When the parties agree to select an ad hoc arbitrator but at the time their dispute arises, the arbitrator cannot conduct the settlement of the dispute due to force majeure circumstances or objectives obstacles, the parties may agree to select another arbitrator in replacement; otherwise, they may bring their dispute to court for settlement.

Thus, because the two parties have not filed a lawsuit in Court or Arbitration, you can sue at arbitration. Based on the fact that the two parties do not agree on the name of the arbitration center and there is no other agreement on the specific arbitration institution, at your request, you can sue at the Vietnam International Arbitration Center next to VIAC.

What is courts' refusal to accept cases in which there is an arbitration agreement in Vietnam?

Pursuant to Article 6 of the Law on Commercial Arbitration 2010 stipulates that courts' refusal to accept cases in which there is an arbitration agreement as follows:

In case the disputing parties have reached an arbitration agreement but one party initiates a lawsuit at a court, the court shall refuse to accept the case, unless the arbitration agreement is invalid or unrealizable.

According to Article 3 of Resolution 01/2014/NQ-HDTP providing for 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.

According to Article 4 of Resolution 01/2014/NQ-HDTP stipulating that 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.

3. Bother parties have an agreement on appointment of a specific arbitrator to resolve disputes, but when the dispute arises, such arbitrator refuses the appointment or the arbitration center refuses the arbitrator appointment, and the parties concerned also fail to reach an agreement to select a substitute arbitrator.

4. The parties concerned have an agreement to resolve their disputes at a specific arbitration center but a set of arbitration rules of another arbitration center, which is different from the arbitration rules of the agreed arbitration center, is applied, the charter of the arbitration selected by both party does not allow the application of arbitration rules of other arbitration centers, and the parties concerned fail to reach an agreement on substitute set of arbitration rules.

5. The goods/service seller and consumers have an overall agreement on provision of goods/services that contain arbitration terms drafted by the seller as prescribed in Article 17 of LCA, but the consumers refuse to have the dispute that arises resolved by an arbitral tribunal.

Best Regards!