Dispute resolution process by commercial arbitration

July 29, 2024

1. Basic process of commercial arbitration

Step 1:

For plaintiffs in lawsuits at commercial arbitration centers

The Plaintiff files a Complaint, appoints an arbitrator, and pays the arbitration fee.
The complaint includes date, month; names and addresses of the parties; summary of the content of the dispute; Legal basis for filing a lawsuit; value of the dispute and other claims of the Plaintiff; the name of the arbitrator chosen by the plaintiff.
The complaint and accompanying documents must be made in 5 copies (In case the Arbitration Council has 3 Arbitrators) or 3 copies (In case the Arbitration Council has 1 Arbitrator).
When filing a Claim, the Plaintiff must also pay the arbitration fee.
The Plaintiff may amend, supplement or withdraw the complaint before the Arbitration Council issues the Arbitration Decision.

For the defendant in a lawsuit at the Commercial Arbitration Center

The defendant submits a self-defense statement and appoints an arbitrator after receiving notice from BBIAC as in step 2.
Self-defense copy includes date; defendant’s name and address; legal basis for self-defense; specific recommendations of the Defendant; the name of the arbitrator chosen by the defendant. Additionally, the defendant may file a counterclaim or raise an objection on the issue of jurisdiction.
In case of a counterclaim, the defendant may amend, supplement or withdraw the counterclaim before the Arbitration Council issues the Arbitration decision.
A defendant’’s failure to submit a statement of defense shall not prevent BBIAC from continuing the arbitration proceedings,
If the Respondent does not submit the self-defense statement, or the self-defense statement does not mention the appointment of an arbitrator, the Arbitration center will appoint an arbitrator for the defendant.

Step 2: The Commercial Arbitration Center preliminarily checks the jurisdiction issue, accepts the Complaint and sends a notice to the Defendant

Step 3: Establishment of Arbitration Council. The Chairman of the Arbitration Council will be elected by the two Arbitrators of the Plaintiff and Defendant or appointed by the President of BBIAC.

Step 4: The Arbitration Council considers resolving the dispute

The Arbitral Tribunal decides how to conduct the proceedings on the basis of the arbitration agreement and the BBIAC Rules of Procedure. However, the Arbitration Council also considers the requests of the parties.

The Arbitration Council studies the dossier, has the right to verify the facts, meet with the parties to hear their opinions, and request the parties to provide additional evidence.

Step 5: The opening of the meeting to resolve the dispute is decided by the Chairman of the Arbitration Council.

If the parties do not attend the meeting to resolve the dispute without a legitimate reason, the Arbitration Council can still decide to continue the meeting and announce the Arbitration Decision.

Step 6: Announcement of Arbitration Decision

The published Arbitration Decision will be final and binding on the Parties.

2. How to select Arbitrators

2.1. Mandatory criteria/conditions according to the provisions of the Vietnam Commercial Arbitration Law 2010 (“Commercial Arbitration Law 2010”):

Clause 1, Article 20 of the Law on Commercial Arbitration 2010 sets out the standards for a person to be an Arbitrator:

Have full civil act capacity according to the provisions of the Civil Code;
Have a university degree and have worked in a field of study for 5 years or more;
In special cases, experts with high professional qualifications and extensive practical experience, although not meeting the requirements stated in point b of this Clause, may also be selected as Arbitrators.

Clause 2, Article 20 of the Law on Commercial Centers 2010 lists cases which a person cannot act as an Arbitrator even though he meets the requirements in Clause 1, Article 20 of the Law on Commercial Centers 2010:

People who are judges, prosecutors, investigators, enforcers, civil servants of the People’s Court, People’s Procuracy, investigation agency, and judgment enforcement agency;
People who are suspects, defendants, or people who are serving a criminal sentence or have completed their sentence but have not had their criminal record erased.

Clause 1, Article 42 of the Law on Commercial Arbitration 2010 lists cases where a person must refuse to resolve a dispute or in other words, cannot act as an Arbitrator:

The arbitrator is a relative or representative of one party;
The arbitrator has a relevant interest in the dispute;
There are clear grounds showing that the Arbitrator is not impartial and objective;
Have been a mediator, representative, or lawyer for any party before submitting the dispute to arbitration, unless otherwise approved in writing by the parties.

People who do not meet the mandatory criteria/conditions as prescribed by the Law on Commercial Centers 2010 are not allowed to act as Arbitrators.

2.2. Criteria to consider according to the provisions of the BBIAC Arbitration Rules

2.2.1. General provisions for Arbitrators (Article 21 of the BBIAC Arbitration Rules)

Upon receipt of notice of selection or appointment as Arbitrator and during the course of the arbitration proceedings, the person selected or appointed as Arbitrator shall promptly notify BBIAC of any such occurrence may raise doubts about its impartiality, independence and objectivity for BBIAC to notify the parties.

The arbitrator shall not act as attorney for any party.
A person selected or appointed as an Arbitrator may not act as an Arbitrator in the following cases:

Be a relative or representative of a party.
Have relevant interests in the dispute.
Have been a mediator, representative, or attorney for any party in the dispute being resolved at BBIAC, unless the parties agree in writing.
There are clear grounds to show that the Arbitrator is not impartial, independent or objective.
Does not meet the specific standards agreed upon by the parties.
Does not meet the standards under applicable arbitration law.

During the arbitration proceedings, the Arbitrator shall not meet or communicate privately with any party; neither party may meet or communicate privately with the Arbitrator to discuss issues related to the dispute.
In cases which the parties have agreed on the specific qualifications of the Arbitrator, the Arbitrator will be deemed to meet those qualifications, unless within 15 days from the date of receipt of notice of the selected Arbitrator or appointed, a party requests to change the Arbitrator on the grounds that the Arbitrator does not meet the qualifications agreed upon by the parties. Changing the Arbitrator in this case is carried out in accordance with the provisions of Article 22 of these Rules.
Upon receiving notice of being selected or appointed as an Arbitrator, the Arbitrator must refuse to resolve the dispute if Arbitrator deems that he/she does not have enough professional capacity, time, or health to ensure the resolution disputes most effectively.

2.2.2. Change of Arbitrator

The arbitrator must refuse to resolve the dispute, the parties have the right to request a change of Arbitrator if the Arbitrator falls into one of the cases specified in Clause 3, Article 21 of these Rules.
Notice of refusal to resolve the dispute by the Arbitrator, Application to change Arbitrator of a party or parties must be sent to BBIAC in writing.
In case the Arbitration Council has not been established, the change of Arbitrator will be decided by the President of BBIAC.

In case the Arbitration Council has been established, the change of Arbitrator is decided by the remaining members of the Arbitration Council. In case the remaining members of the Arbitration Council cannot decide or if the Arbitrators or Sole Arbitrator refuse to resolve the dispute, the BBIAC Chairman decides on the change of Arbitrator.

In case the remaining members of the Arbitration Council or the President of BBIAC decide to change the Arbitrator, the replacement Arbitrator is selected or appointed according to the provisions of Article 18 or Article 19 of these Rules. The parties are not allowed to re-select an Arbitrator who has been changed, and the BBIAC Chairman is not allowed to re-appoint an Arbitrator who has been changed.

In case the remaining members of the Arbitration Council or the President of BBIAC decide not to change the Arbitrator, this Arbitrator must continue to resolve the dispute.

The decision of the President of the BBIAC or the decision of the remaining members of the arbitral tribunal on the change of Arbitrator may not state the basis for the decision. This decision is final.
The BBIAC or the Arbitral Tribunal may fix the costs arising from the change of Arbitrator and decide which party or parties shall bear those costs.
In case the Arbitrator due to force majeure or objective obstacles cannot continue to participate in resolving the dispute or is replaced, the selection and appointment of a replacement Arbitrator will be carried out according to the order and procedures. procedures specified in Article 18 or Article 19 of these Rules.

The arbitral tribunal established after the change of Arbitrator may review issues raised at the dispute resolution sessions of the previous Arbitral Council, in consultation with the parties. .

3. Delivering judgments and legal effects in International Commercial Arbitration

3.1. Making judgments in international commercial arbitration

Base on Clause 10, Article 3 of the Commercial Arbitration Law 2010, the arbitration award is the decision of the Arbitration Council to resolve the entire content of the dispute and terminate the arbitration proceedings.

Base on Article 60 of the 2010 Commercial Arbitration Law, the principles of arbitration are stipulated as follows:

The arbitral tribunal makes the arbitral award by voting according to the principle of majority.
In case the voting does not reach a majority, the arbitration award shall be made according to the opinion of the Chairman of the Arbitration Council.

So the arbitration award is the decision of the Arbitration Council to resolve the entire content of the dispute and terminate the arbitration proceedings and is decided according to the principle of voting by majority of the Arbitration Council.

3.2. Legal effect of international commercial arbitration decisions

Pursuant to Clause 3, Clause 5, Article 61 of the Arbitration Law 2010 Arbitration awards are issued immediately at the meeting or no later than 30 days from the end of the last meeting and take effect from the date of promulgation.

In addition, regarding the decision of the arbitrator in the case, the disputing parties have the right to request registration of the decision of the Arbitrator in the case at the Court where the Arbitration Council has issued the decision before requesting the Judgment Enforcement Agency. civil authority has the authority to organize the enforcement of that arbitral award. Registration or non-registration of an arbitration award does not affect the content and legal value of the arbitration award, based on the provisions of Clause 1, Article 62 of the Arbitration Law 2010.

From the above provisions, the arbitrator’s award is a final judgment that is executed in accordance with the law on enforcement of civil judgments and takes effect from the date of issuance, therefore the legal value of the award Arbitration is considered equivalent to judgment. However, arbitration can only resolve cases related to business and commerce.

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

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].

(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.”