What are the regulations on appointment of arbitrators under the Model Law of International Commercial Arbitration in Vietnam? - Chi Kien (HCMC, Vietnam)
Article table of contents
Regulations on appointment of arbitrators under the Model Law of International Commercial Arbitration in Vietnam (Internet image)
1. What is the arbitration agreement?
Article 7 of the Model law on international commercial arbitration 1985 stipulates for the form of arbitration agreement as follows:
Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
An arbitration agreement may be in the form of
- An arbitration clause in a contract o
- A separate agreement.
The arbitration agreement shall be in writing.
An arbitration agreement is in writing if its content is recorded in any form, whether or not the arbitration agreement or contract has been concluded orally, by conduct, or by other means.
Furthermore, an arbitration agreement is in writing via electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. if it is contained in an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other.
The reference in a contract to any document containing an arbitration clause constitutes an arbitration agreement in writing, provided that the reference is such as to make that clause part of the contract.
2. Appointment of arbitrators in Vietnam
Article 11 of the Model law on international commercial arbitration 1985 provides for the appointment of arbitrators as follows:
- No person shall be precluded by reason of his nationality from acting as an arbitrator, unless otherwise agreed by the parties.
- The parties are free to agree on a procedure of appointing the arbitrator or arbitrators, subject to the provisions of paragraphs (4) and (5) of Article 11 of the Model law on international commercial arbitration 1985.
- Failing such agreement,
+ In an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two arbitrators thus appointed shall appoint the third arbitrator;
If a party fails to appoint the arbitrator within thirty days of receipt of a request to do so from the other party, or if the two arbitrators fail to agree on the third arbitrator within thirty days of their appointment, the appointment shall be made, upon request of a party, by the court or other authority specified in Article 6 of the Model law on international commercial arbitration 1985;
+ In an arbitration with a sole arbitrator, if the parties are unable to agree on the arbitrator, he shall be appointed, upon request of a party, by the court or other authority specified in Article 6 of the Model law on international commercial arbitration 1985.
- Where, under an appointment procedure agreed upon by the parties,
+ A party fails to act as required under such procedure, or
+ The parties, or two arbitrators, are unable to reach an agreement expected of them under such procedure, or
+ A third party, including an institution, fails to perform any function entrusted to it under such procedure,
Any party may request the court or other authority specified in Article 6 of the Model law on international commercial arbitration 1985 to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.
- A decision on a matter entrusted by paragraph (3) or (4) of Article 11 of the Model law on international commercial arbitration 1985 to the court or other authority specified in Article 6 of the Model law on international commercial arbitration 1985 shall be subject to no appeal.
The court or other authority, in appointing an arbitrator, shall have due regard to any qualifications required of the arbitrator by the agreement of the parties and to such considerations as are likely to secure the appointment of an independent and impartial arbitrator and, in the case of a sole or third arbitrator, shall take into account as well the advisability of appointing an arbitrator of a nationality other than those of the parties.
Ngoc Nhi
