recognition and enforcement in Vietnam of foreign arbitral award International Arbitration Commerce, Trade and Investment recognition and enforcement in Vietnam of foreign arbitral award Nguyen Manh Dzung (MCIArb) Dzungsrt & Associates LLC Ho Chi Minh City, 21st July, 2016

Outlines Scope Legal Framework Foreign arbitral awards Procedural issues Exceptions for rejecting recognition and enforcement; Practical recommendations

Territorial Scope

Reservations of Vietnam under the 1958 New York Convention Apply the Convention to another Contracting State Apply the Convention on the basis of reciprocity Apply the Convention to differences arising out of commercial relationships

Legal framework The 2015 Civil Procedure Code; The 2015 Civil Code; The 2005 Commercial Law; The 2010 Law on Commercial Arbitration; Resolution No. 01/2014/NQ-HDTP; Official Letter No. 246/TANDTC Etc.

Practice in Vietnam Stage Civil Procedure Code In practice First-instance 2-4 months 6-9 months Appeal 1-2 months Normally 6-9 months / exceptional case: 2 years Cassation 3 years N/A

Recognition and Enforcement in Vietnam

Foreign Arbitral Awards Awards rendered out of the Vietnamese territory; Awards rendered in Vietnam by foreign arbitrations; Awards resolving the entire dispute; Final and binding awards; Effective arbitral awards;

Procedural Issues Amended CPC 2004 CPC 2015 Time bar N/A 3 years (Article 451.1) Jurisdiction Ministry of Justice The Court or the Ministry of Justice (Article. 451.1) Burden of Proof Award debtor Protest Under cassation Procedure (Article 462.6)

Application file Format: Duly legalized and notarized; Documents: Application(Article. 452 of CPC) Arbitration Agreement (Contract) and Arbitral Awards (Article 453 of CPC) Documents related to the legal entity of the company; Relevant arbitration laws and arbitration rules; Issues related to foreign law on contract, arbitration, corporate. Evidences in respect of the foreign arbitral proceedings;

Burden of proof “To obtain the recognition and enforcement mentioned in the preceding article, the party applying for recognition and enforcement shall, at the time of the application, supply: (a) The duly authenticated original award or a duly certified copy thereof; (b) The original agreement referred to in article II or a duly certified copy thereof.”. (Article IV.1 of the 1958 New York Convention)

Burden of proof of the award debtor Article V.1 of the 1958 NYC Article 459 of CPC 2015 “Recognition and enforcement of the award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority where the recognition and enforcement is sought, proof that” Court shall not recognize a foreign arbitral award when deeming that the evidences provided by the award debtor to the Court for protesting against the application for recognition are well-grounded, legal and the arbitral award falls within one of the following cases: . Những trường hợp không công nhận 1. Tòa án không công nhận phán quyết của Trọng tài nước ngoài khi xét thấy chứng cứ do bên phải thi hành cung cấp cho Tòa án để phản đối yêu cầu công nhận là có căn cứ, hợp pháp và phán quyết trọng tài thuộc một trong các trường hợp sau đây:

Identifying and providing foreign law Proof of foreign law Identifying and providing foreign law (Article 481 of CPC 2015) Parties Ministry of Justice,Ministry of Foreign Affair, representative agents of Vietnam in foreign countries Professional individuals, organizations, bodies (under the demand of the Court) when the 6 month period expires, the Court shall apply Vietnamese Law

Exceptions for rejecting recognition and enforcement Lack of capacity to sign the arbitration agreement The arbitration agreement is invalid Violation of the tribunal’s mandate Composition of Arbitral tribunal, violation of due process The award has not taken compulsory legal effect The award has been revoked or suspended Arbitrability of the dispute Contrary to the fundamental principles of Vietnamese laws.

Signatory Capacity Under Vietnamese Law: Under Foreign Law: Applicability of the Corporate Charter and Resolutions of Management Board to the third parties? Signatory capacity of the legal representative Monetary value of the arbitration agreement? Under Foreign Law: The validity of the Registration certificate of a foreign company? Authorization for signing the contract? Proof of signatory capacity

VALIDITY OF ARBITRATION AGREEMENTS Severability The law applicable to arbitration agreements The law selected by the parties to govern an arbitration agreement (different from the law governing contracts); The Law of the country where an arbitration agreement is enforced (usually the place of arbitration); International law ** Model Arbitration Clause of KCAB and VIAC do not provide for the law applicable to arbitration agreements KCAB MODEL CLAUSE FOR FUTURE DISPUTES Any disputes out of or in connection with this contract shall be finally settled by arbitration in accordance with the International Arbitration Rules of the Korean Commercial Arbitration Board. The number of arbitrators shall be[one/three] The seat, or legal place, of arbitral proceedings shall be [Seoul/ Republic of Korea] The language to be used in the arbitral proceedings shall be [language] KCAB MODEL AGREEMENT FOR EXISTING DISPUTES We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the KCAB International Arbitration Rules : [brief description of the dispute] The number of arbitrators shall be [one/three] The seat, or legal place, of arbitral proceedings shall be [Seoul/ Republic of Korea] The language to be used in the arbitral proceeding shall be [language]

International arbitration proceedings Bases to consider the validity of arbitration proceedings : Agreements of the parties on arbitration proceedings The arbitration rules selected by the parties In the event that arbitration rules are not specified, the laws of the country at place of arbitration (where the arbitral award is rendered). *KCAB Rules: Service of notices and documents Directly sent between the parties or between a party and the Arbitral Tribunal By electronic means such as emails, fax or other method with recorded delivery

The fundamental principles of law Public Policy > < fundamental principles of Vietnamese law Resolution 01/2014/NQ-HDTP “The arbitral award contravenes the basic principles of Vietnam’s Law", meaning the arbitral award violates the effective basic rules for formulation and implementation of Vietnam’s Law.”

Recommendations For foreign arbitration institutions For foreign arbitral tribunals For foreign lawyers

Thank you for your kind attention! Q & A Dzungsrt & Associates LLC A Boutique Shipping and ADR Law Firm Hanoi Office Unit 6, 11th floor, HAREC Building, No. 4A Lang Ha Street, Ba Đinh District, Ha Noi city. Tel. (84-4) 3772 6970 / Fax. (84-4) 3772 6971 Saigon office 7th Floor, 162 Pasteur’s Office Building Ben Nghe Ward, District 1, Ho Chi Minh city Tel. (84-8) 3822 0076/ Fax. (84-4) 3772 6971 Email. dzung.nguyen@dzungsrt.com Web. www.dzungsrt.com