1. Necessary legal conditions
According to Article 5 of the 2010 Commercial Arbitration Law, dispute resolution by Arbitration need to meet the following conditions:
– Disputes will be resolved by arbitration if the parties have an arbitration agreement. Arbitration agreements can be made before or after a dispute arises.
– In case a party to the arbitration agreement who is an individual dies or loses legal capacity, the arbitration agreement will still be valid for that person’s heirs or legal representatives, unless the The parties have otherwise agreed.
– In case a party to the arbitration agreement is an organization that must cease operations, go bankrupt, dissolve, consolidate, merge, divide, separate or convert its organizational form, the arbitration agreement still has effect for the organization receiving the rights and obligations of that organization, unless the parties agree otherwise.
To apply commercial arbitration effectively and legally, it is necessary to comply with the necessary legal conditions. First of all, the prerequisite is the consent of the parties to the dispute. The arbitration agreement must be in writing, either as a provision in the main contract or as a separate agreement signed after the dispute arises. This document should clearly identify the arbitration rules and procedures to be applied, including the selection of arbitrators and the location and language of the arbitration.
In addition, the dispute must be of a type that the law allows for resolution by arbitration. According to the regulations of many countries, some disputes cannot be resolved by arbitration, such as disputes related to public interest, criminal cases, divorce and child custody disputes, or issues related to land ownership.
Thirdly, the arbitrator must ensure neutrality, fairness and have sufficient professional capacity to resolve disputes. The parties are free to choose arbitrators, but must ensure that they do not have any conflicts of interest with the participating parties.
Finally, the arbitration process must comply with basic principles of law, including the parties’ right to be heard, the right to present evidence and the right to protect their rights. The arbitration award needs to be made in writing, with reasons and sent to the parties involved.
Compliance with these legal conditions not only ensures the legality of the arbitration process but also helps arbitral awards be widely recognized and enforced, both domestically and internationally, in accordance with the New York Convention. York on the recognition and enforcement of foreign arbitral awards.
2. Arbitrator’s authority
The arbitration council is established on a case-by-case basis and is only formed after the arbitrator selection process is carried out. Arbitration will not be automatically applied in dispute resolution if there is no agreement between the parties on the use of arbitration or it can be said that arbitration is contractual – there will be no arbitration if there is no agreement. agreement of the parties on the use of this form to resolve disputes arising from them.
The 2010 Commercial Arbitration Law, as the governing law on arbitration proceedings, has provisions and grants the Arbitration Council a number of rights in the proceedings even when the parties do not have an agreement.
An obvious example of the Arbitration Council’s authority being determined by law and not by the will of the parties is the issue of determining applicable law. Accordingly, for disputes without foreign elements, the Arbitration Council applies Vietnamese law. For disputes with foreign elements, the Arbitration Council applies the law chosen by the parties; In case there is no agreement on applicable law, the Arbitral Tribunal shall decide to apply the law that the Arbitral Council considers most appropriate. In addition, the Arbitration Council may apply international practices to resolve disputes if the application or the consequences of such application do not contravene the basic principles of Vietnamese law.
According to the provisions of Article 43 (1) of the Commercial Arbitration Law 2010, before considering the content of the dispute, the Arbitration Council must first consider its authority to determine whether the Arbitration Council has authority to resolve the case or not. This issue is especially important in cases where a party objects to the jurisdiction of the Arbitral Council for common reasons such as: the arbitration agreement is invalid, the arbitration agreement cannot be implemented, the parties have not fully implement the dispute resolution steps (in terms of multi-level dispute resolution) before the case goes to arbitration,…
For arbitration cases around the world, the issue of the jurisdiction of the Arbitral Tribunal is often expressed through the partial award or interim award of the Council referee. A less common case is that the Arbitral Tribunal will not issue a decision on its jurisdiction through a partial arbitration award but will express it in a general award or final arbitration award. The final decision of the Arbitration Council will be issued at the conclusion of the arbitration. The final judgment will resolve all open issues, both procedural and substantive, and will usually include a decision on costs.
Determining the jurisdiction of the Arbitration Council plays a prerequisite role in the dispute resolution process. The right to supervise the proceedings of the Arbitral Council belongs first of all to the disputing parties during the dispute process, whereby the parties can complain to the Arbitral Council if it detects that the Arbitral Council has exceeded authorization. In case of disagreement with the decision (on complaint resolution) of the Arbitration Council, the parties have the right to submit a request to the competent Court to review the decision of the Arbitration Council.
Therefore, it is extremely necessary for the Parties to clearly understand the regulations on the jurisdiction of the Arbitration Council to ensure their own interests in the arbitration proceedings.
3. Cases where commercial arbitration is not applicable
Although commercial arbitration has many advantages and is widely applied in commercial disputes, there are some cases where arbitration is not an appropriate method of resolution. These cases often involve areas that are required by law to be resolved in courts or competent state agencies. Below are some specific examples of cases where commercial arbitration is not applicable.
Firstly, disputes related to public interest and public policy are not usually resolved by commercial arbitration. This includes criminal cases, divorce disputes, child custody and other family issues. These issues often involve civil rights and obligations, and are required by law to be resolved in court to ensure transparency and fairness.
Secondly, disputes related to land and real estate ownership are often not subject to commercial arbitration. Resolution of disputes over land use rights, land transfer and other related issues is often subject to the specific legal regulations of each country. In Vietnam, for example, land disputes often have to be resolved in court or by competent state agencies, such as the People’s Committee or land management agencies.
Thirdly, disputes related to intellectual property rights, although they can be resolved by commercial arbitration in some cases, are sometimes not appropriate. For example, when a dispute involves determining ownership of a patent, trademark or copyright, the parties may need to resolve it with state regulatory agencies or courts to obtain a judgment. The decision is highly legally binding and widely recognized.
Fourth, disputes related to labor contracts are also often not resolved by commercial arbitration. Issues such as wages, working conditions, dismissal and other employee rights are often detailed in labor law and need to be resolved in courts or labor dispute resolution agencies. Resolving labor disputes in court helps protect workers’ rights and ensures fairness and transparency.
Fifth, disputes related to the financial rights and obligations of the state, public agencies or state-owned enterprises are also often not resolved by commercial arbitration. These disputes often involve public interests and need to be resolved in courts or competent state agencies to ensure transparency and accountability.
Finally, some disputes of a complex or sensitive nature may not be suitable for resolution by commercial arbitration. For example, disputes involving large contracts or high-value projects may need to be resolved in court to ensure legal binding and enforceability of the award.
In summary, although commercial arbitration is an effective and flexible method of dispute resolution, there are cases where the law requires resolution in court or competent state agencies. These cases often involve public interests, land ownership, intellectual property rights, labor disputes, state financial obligations and other complex or sensitive disputes. Resolving these disputes in court helps ensure transparency, fairness and enforceability of judgments.
4. How to resolve disputes using Bigboss International Commercial Arbitration Center
To resolve disputes by commercial arbitration at BBIAC. Customers can write in the contract one of the following two contents:
4.1. Model arbitration clause
“Any dispute arising out of or in connection with this contract shall be resolved by arbitration at the BIGBOSS International Commercial Arbitration Center (BBIAC) in accordance with its Rules of Arbitration”.
In addition, the parties may add:
(a) the number of arbitrators is [one or three].
(b) the place of arbitration is [city and/or country].
(c) the law applicable to the contract is [ ].*
(d) the arbitration language is [ ].** Note: *
Only applicable to disputes with foreign elements **
Only applies to disputes with foreign elements or disputes in which at least one party is a foreign-invested enterprise.
4.2. Model arbitration clause applicable to summary proceedings
“Any dispute arising out of or in connection with this contract shall be resolved by arbitration at the BIGBOSS International Commercial Arbitration Center (BBIAC) in accordance with its Rules of Arbitration. The parties agree that the arbitration proceedings will be conducted in accordance with the Summary Procedures set out in Article 37 of the BBIAC Arbitration Rules.”
In addition, the parties may add:
(a) the place of arbitration is [city and/or country].
(b) the law applicable to the contract is [ ].*
(c) the arbitration language is [ ]. **
Note:
* Only applies to disputes with foreign elements
**Only applies to disputes with foreign elements or disputes where at least one party is a foreign-invested enterprise
