|
THE PRESIDENT OF
THE STATE
ORDER No. 42-L/CTN
OF SEPTEMBER 27, 1995 OF THE PRESIDENT OF THE STATE PROMULGATING THE
ORDINANCE ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS
IN VIETNAM
----------------------------------
THE PRESIDENT OF
THE SOCIALIST REPUBLIC OF VIETNAM
Pursuant to Article 103 and Article 106 of the 1992 Constitution of the
Socialist Republic of Vietnam;
Pursuant to Article 78 of the Law or Organization of the National
Assembly,
PROMULGATES:
The
Ordinance on the Recognition and Enforcement of Foreign Arbitral Awards
in Vietnam which was passed on September 14, 1995 by the Standing
Committee of the National Assembly, IXth Legislature, of the
Socialist Republic of Vietnam.
The President of
the Socialist Republic of Vietnam
LE DUC ANH
ORDINANCE ON THE
RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN VIETNAM
With a
view to expanding and developing economic relations with foreign
countries; and to protecting the interests of the State as well as the
legitimate rights and interests of Vietnamese and foreign organizations
and individuals;
Pursuant to Article 91 of the 1992 Constitution of the Socialist
Republic of Vietnam; and
Pursuant to the Resolution of the Sixth Session of the Ninth Assembly on
the law-making activities for 1995:
This
Ordinance prescribes the recognition and enforcement of foreign arbitral
awards in Vietnam.
Chapter I
GENERAL PROVISIONS
Article 1: Foreign arbitral awards.
In
this Ordinance, a “foreign arbitral award” is understood as the award
which is made outside the territory of Vietnam by an arbitrator selected
by the parties concerned to settle dispute arising from commercial law
relations.
“Foreign arbitral awards” also include awards that are made in the
territory of Vietnam but not by Vietnamese arbitrators.
Article 2: Principles of recognition and enforcement
1.
Vietnamese
Courts handle the recognition and enforcement of a foreign arbitral
award in Vietnam in case the award is made in, or by an arbitrator of, a
country which has together with the Socialist Republic of Vietnam signed
or acceded to an international agreement on this matter.
A
foreign arbitral award can also be recognized and enforced in Vietnam by
Vietnamese Courts on a reciprocal basis without either side having
signed or acceded to an international agreement.
2.
A foreign
arbitral award shall be enforced in Vietnam after it is recognized and
its enforcement is ordered by a Vietnamese Court. The enforcement must
be carried out in conformity with this Ordinance and provisions of
Vietnamese law on the enforcement of civil sentences.
Article 3: Right to request recognition and to order enforcement
The
organization and/or individual in favor of which/whom an award is
enforced or their legitimate representatives have the right to request
the Court to recognize and enforce a foreign arbitral award in Vietnam,
if the organization against which the award is enforced has its
headquarters in Vietnam; or the individual against whom the award is
enforced resided and/or works in Vietnam; or if the assets related to
the enforcement are available in Vietnam at the moment the request is
sent.
Article 4: Competent Courts to handle requests for recognition and
enforcement
The
competent Courts to handle requests for the recognition and enforcement
of foreign arbitral awards in Vietnam are the People’s Courts of the
provinces and cities directly under the Central Government, where the
organization against which the award is enforced has its headquarters,
or where the individual against whom the award is enforced resides
and/or works, or where the assets related to the enforcement are
available.
Article 5: Guarantee of the right to appeal or protest
1.
A Court
decision recognizing or not recognizing a foreign arbitral award may be
appealed by the organization or person in question, or by the Procuracy.
2.
If a Court
decision is not appealed within the time limit provided for in Article
18 of this Ordinance, the decision shall take legal effect.
3.
The Supreme
People’s Court handles appeals against decisions made by the People’s
Courts of the provinces and cities directly under the Central Government
regarding the recognition and enforcement of foreign arbitral awards in
Vietnam.
Article 6: Guarantee of the legal of Court decisions on the recognition
and enforcement of foreign arbitral awards in Vietnam.
1.
Foreign
arbitral awards recognized and enforced in Vietnam by Vietnamese Courts
have the same legal effect as the already effective decisions made by
Vietnamese Courts.
2.
The Court
decisions, which have taken legal effect concerning the recognition and
enforcement of foreign arbitral award in Vietnam, must be strictly
implemented by the parties concerned, and respected by State
authorities, economic and social organizations, the people’s armed
forces and all citizens.
In
case the organization or individual against which or whom the award is
enforced is not willing to implement the effective Court decision,
enforcement measures shall be applied in accordance with Vietnamese law.
Article 7: Notification of Court decisions
Immediately after the decision mentioned in Item 1 of Article 14, Item 5
of Article 15, and Item 3 of Article 19, of this Ordinance is made, the
Court shall, through the Ministry of Justice, notify the organization or
individual requesting the recognition and enforcement of the decision.
Article 8: Guarantee of the right to transfer money and properties
related to the enforcement of foreign arbitral awards
The
State of the Socialist Republic of Vietnam guarantees the transfer of
money and assets acquired from the enforcement of foreign arbitral
awards from Vietnam to foreign countries; the transfer of money and
assets shall be carried out in accordance with Vietnamese law.
Article 9: Fees
The
organizations/individuals sending the request as provided for in Article
10 of this Ordinance shall have to pay fees.
The
Government shall stipulate in detail the level of the fees, procedures
for their payment and for their management and utilization.
Chapter II
HANDLING OF
REQUESTS FOR RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN
VIETNAM
Article 10: Requests for the recognition and enforcement of foreign
arbitral awards in Vietnam
1.
Requests
for the recognition and enforcement of foreign arbitral awards in
Vietnam shall be sent to the Vietnamese Ministry of Justice.
2.
The request
mentioned in Item 1 of this Article must include the following:
a)
The full
name and address of the headquarters of the organization in favor of
which the award is enforced; the full name and address of the individual
in favor of whom the award is enforced; or the organization’s or the
individual’s legal representatives in Vietnam, if available.
b)
The full
name and address of the headquarters of the organization against which
the award is enforced; or the full name, place of residence and work of
the individual against whom the award is enforced.
In
case the organization against which the award is enforced does not have
its headquarters in Vietnam; or the individual against whom the award is
enforced does not reside and/or work in Vietnam, the name of the
Vietnamese location where assets related to the enforcement are
available must be clearly mentioned;
c)
The request
of the organization/individual in favor of which/whom the award is
enforced.
3.
Requests
written in foreign languages must be translated into Vietnamese, and the
translations must be duly certified in accordance with Vietnamese law.
Article 11: Papers attached to the requests
1.
Attached to
the requests provided for in Article 10 of this Ordinance shall be
papers stipulated in international agreements which the Socialist
Republic of Vietnam has signed or acceded to as mentioned in Item 1,
Article 2 of this Ordinance.
In
case the aforesaid international agreements do not mention the papers to
be attached to the requests or in case there is no relevant
international agreement the following papers must be attached to the
request:
a)
The
original foreign arbitral award or its copy duly certified in accordance
with Vietnamese law.
b)
The
original agreement on arbitration or its copy duly certified in
accordance with Vietnamese law.
The
agreement on arbitration mentioned in Point b Item 1 of this Article is
a written document agreed upon by the parties on the resolution of their
disputes which may arise or have already arisen according to the
arbitration modalities prescribed by the laws of the countries
concerned.
An
agreement on arbitration can be an arbitral provision laid down in a
contract, or a separate agreement on arbitration concluded by the
parties after a dispute arises. The conclusion of this agreement can be
done by way of correspondence.
2.
The
attached papers in foreign languages must be translated into Vietnamese,
and the translations must duly certified in conformity with Vietnamese
law.
Article 12: Transfer of files to the Court
1.
Within 7
days from the receipt of the request and other legal papers, the
Ministry of Justice shall transfer the file(s) to the competent Court
provided for in Article 4 of this Ordinance.
2.
In case the
Ministry of Justice has already transferred the file(s) to the Court,
but later received a notice from the competent body of the foreign
country mentioned in Point c, Item 1, Article 16 of this Ordinance,
saying that the foreign arbitral award is being handled, or has been
overruled, or the implementation of the award has been suspended, the
Ministry of Justice shall send a written notice to the Court, which
shall make an appropriate decision in accordance with Points a and c of
Item 1, Article 14, Item 3, Article 19, and Item 4, Article 20, of this
Ordinance.
Article 13: Receipt and study of file(s)
1.
Upon
receipt of the file(s) from the Ministry of Justice, the Court has to
study them and notify the organization/individual against which/whom the
award is enforced, and the Procuracy of the same level.
2.
The Court
has the right to request the organization/individual which/who has sent
the request to explain matters that are not clear in the file(s).
Article 14: Preparation for the handling of the request
1.
Within two
months from the receipt of the file(s), the Court, depending on each
case, shall make one of the following decisions:
a)
Temporary
suspension of the handling of the request in case the Court has received
a written notice from the Ministry of Justice informing that the
competent body of the foreign country was considering the possibility of
overruling, or suspending the implementation of, the foreign arbitral
award.
b)
Suspension
of the handling of the request if the requesting organization/individual
withdraws the request; or the organization/individual against which/whom
the award is enforced implements it of its own free will; or the
organization against which the award is enforced has been dissolved or
gone bankrupt, whose rights and liabilities have been settled in
accordance with Vietnamese law; or the individual against whom the award
is enforced died, whose rights and obligations are not inherited.
c)
Suspension
of the handling of the request in case a written notice is received from
the Ministry of Justice informing that the competent body of the foreign
country has canceled, or suspended the implementation of, the foreign
arbitral award;
d)
Suspension
of the handling of the request and returning the file(s) to the Ministry
of Justice if they are beyond the Court’s authority; if the organization
against which the award is enforced does not have its headquarters in
Vietnam, if the individual against whom the award is enforced does not
reside and/or work in Vietnam, or the location where assets related to
the enforcement of the award are available cannot be found;
e)
Opening a
Court session to handle the request.
In
case a clarification of stipulation in Item 2, Article 13 of this
Ordinance is requested, the time limit can be extended for two months.
2.
The Court
shall open a session to handle the request within 15 days from the date
the decision mentioned in Point e, Item 1 of this Article is made.
Within 7 days after the decision to open the Court session is issued,
the Court has to transfer the file(s) to the Procuracy of the same
level.
Article 15: Court session to handle the request
1.
A request
shall be handled at a Court session by a panel of three judges, one of
whom shall be in the chair.
2.
A
prosecutor from the Procuracy of the same level must participate in the
session. In case the procurator is absent, the Court session must be
postponed.
3.
The Court
session shall be held in the presence of the lawful representative of
the organization against which the award is enforced, the individual
against whom the award is enforce, or of his/her lawful representative.
These persons shall be summoned to the Court in accordance with
Vietnamese law.
The
handling of the request shall continue if the lawful representatives of
the organization against which the award is enforced, the individual
against whom the award is enforced, or his/her lawful representative
request the Court to hold the session in their absence; or if they are
absent without plausible reasons after two official summons.
4.
While
handling the request, the panel does not retry the dispute already
settled by the foreign arbitrator, but only examines and compares the
foreign arbitral award and the attached papers with the provisions of
this Ordinance, other provisions of Vietnamese law and international
agreements which the Socialist Republic of Vietnam has signed or acceded
to, in order to make decision.
5.
After
considering the request, the attached papers and evidence, if any, and
hearing the persons summoned and the Procurator, the Panel shall discuss
and decide the case by majority of votes.
The
panel of judges has the right to make a decision to recognize and
enforce, or not to recognize and enforce, a foreign arbitral award.
Article 16: Cases in which a foreign arbitral award is not recognized
1.
a foreign
arbitral award shall not be recognized and enforced in Vietnam if the
organization/individual against which/whom the award is enforced has
legitimate evidence for the Court to confirm that:
a)
The parties
to the agreement on arbitration mentioned in Item 1, Article 11 of this
Ordinance, are not legally capable of signing that agreement in
accordance with the law applied to each party; agreement on arbitration
is not legally valid under the law of the country which was chosen by
the parties, or under the law of the country where the award was made,
in case the parties did not choose the law to be applied for that
agreement;
b)
The
organization/individual against which/whom the award is enforced was not
given timely and proper notice on the selection of the arbitrators and
the procedures for resolving the dispute through arbitration; or for
other legitimate reasons this organization/individual cannot exercise
its/his or her rights of proceedings.
c)
The foreign
arbitral award is made over a dispute which was not requested for
settlement by he parties or beyond the request of the parties to the
agreement on arbitration. In case the decision on a requested issue can
be separated from one not requested for settlement through arbitration,
the decision on a requested issue can be recognized and enforced in
Vietnam.
d)
The
composition of the arbitral body and/or procedure for resolving the
dispute through arbitration vary with the agreement on arbitration or
with the law of the country where the award was made, in case the
agreement on arbitration does not stipulate the matters;
e)
The
arbitral award has not yet become binding on these parties;
f)
The
arbitral award has been overruled or suspended by the competent
authority of the country where the award was made, or of the country the
law of which applies to the rendering of awards.
2.
A foreign
arbitral award is not recognized and enforced in Vietnam if the Court
decides that:
a)
Under
Vietnamese law the dispute shall not be resolved by way of arbitration;
b)
The
recognition and enforcement of the foreign arbitral award in Vietnam are
contrary to basic principles of Vietnamese law.
Article 17: Sending a copy of the Court decision to the Procuracy
Immediately after the decision mentioned in Item 1, Article 14, and Item
5, Article 15 of this Ordinance, is made, the Court shall send a copy of
that decision to the Procuracy of the same level.
Article 18: Appeals
1.
Within 15
days from the date the Court made the decision mentioned in Points a, b,
c and d of Item 1, Article 14, and Item 5, Article 15 of this Ordinance,
the parties, or their lawful representatives, have the right to appeal
the decision.
The
appeal must clearly state the reasons and the protest.
In
case the parties concerned are not present at the Court session to hear
the appeal, the time limit for the appeal is counted from the date a
copy of the decision is delivered to them; if the appeal has expired and
there are justifiable reason for this delay, the time limit for the
appeal is counted from the date the obstacles causing the delay have
been removed.
2.
The
Procuracy of the same level or the Supreme People’s Procuracy has the
right to appeal the Court decision mentioned in Points a, b, c and d of
Item 1, Article 14, and Item 5, Article 15 of this Ordinance.
The
time limit for the appeal by the Procuracy of the same level is 15 days,
and that by the Supreme People’s Procuracy is 30 days, starting from the
date of the Court’s decision.
Article 19: Hearing of Appeals
1.
The Supreme
People’s Court shall hear the appeal against a decision by the People’s
Court of the province or city under the Central Government within one
month from the date the appeal is received; if explanations are
necessary as stipulated in Item 2, Article 13, of this Ordinance, the
time limit is extended for two months.
2.
The panel
to hear the appeal shall be composed of three judges, one of whom being
in the chair.
The
procedure for hearing appeals is similar to that for hearing requests
provided for in Article 15 of this Ordinance.
3.
The panel
has the right to keep intact, or to partly or fully change, the decision
made by the People’s Court of the province or city under the Central
Government; to temporarily suspend or to suspend the appeal in cases the
appellant withdraws the appeal; or the Procuracy withdraws the appeal,
or there are reasons for doing so as provided for in Points a, b and c,
Item 1, Article 14 of this Ordinance.
The
decision by the Supreme People’s Court is final and effective.
Article 20: Enforcement of foreign arbitral awards
1.
Within 15
days from the date the decision on the recognition and enforcement of a
foreign arbitral award in Vietnam becomes effective, the Court shall
send a copy of that decision and a copy of the award to the enforcement
agency in accordance with Vietnamese law on the execution of civil
verdicts.
2.
The
enforcement of foreign arbitral awards in Vietnam must be carried out in
accordance with the Vietnamese law on civil verdicts enforcement.
3.
In case a
written notice is received from the Ministry of Justice to the effect
that the foreign competent authority is considering the possibility of
overruling or suspending the implementation of the foreign arbitral
award that has already been recognized to be enforced in Vietnam, the
Head of the civil verdicts enforcement agency shall make a decision to
temporarily suspend the enforcement of the award, and send a copy of
that decision to the Court which made the decision on the recognition
and enforcement of the foreign arbitral award in Vietnam.
The
Head of the civic verdicts enforcement agency may take necessary
measures to ensure the continued enforcement of the foreign arbitral
award if so requested by the organization/individual in favor of
which/whom the award is enforced.
4.
Immediately
after receiving the written notice from the Ministry of Justice saying
that the competent foreign authority has already overruled or suspended
the enforcement of the foreign arbitral award, the Court which made the
decision on the recognition and enforcement of the award in Vietnam
shall make a decision repealing its previous decision, and send a copy
of this decision to the enforcement agency.
Immediately after receiving the decision of the Court, the Head of the
civil verdicts enforcement agency shall issue a decision to suspend the
enforcement of the foreign arbitral award.
Chapter III
FINAL PROVISIONS
Article 21: Application of international agreements
In
case an international agreement which the Socialist Republic of Vietnam
has signed or acceded to, contains provisions contrary to the provisions
of this Ordinance, the provisions of the international agreements shall
prevail.
Article 22: Court’s refusal to handle the recognition and enforcement of
foreign arbitral awards
In
case a decision made by a Vietnamese arbitrator or a request by a
Vietnamese organization/individual on the recognition and enforcement of
an arbitral award in a foreign country is rejected by the competent
authorities of that country on the ground of discrimination, Vietnamese
Courts have the right to apply according retaliatory measures to the
handling of requests for the recognition and enforcement of arbitral
awards by that country in Vietnam, or to requests made by organizations/
individuals of that country regarding this matter.
Article 23: Effectiveness of Ordinance
This
Ordinance takes effect from January 1st, 1996
Article 24: Implementation provision
The
Government, the Supreme People’s Court, and the Supreme People’s
Procuracy within their respective competence shall issue detailed
regulations for the implementation of this Ordinance.
On behalf of the
Standing Committee of the National Assembly
Chairman
NONG DUC MANH |
