Along with the signing and negotiation of many trade agreements with countries and regions around the world, the trade between Vietnamese and foreign businesses is increasing significantly. At the same time, there are also many international trade disputes in which enterprises in Vietnam are one of the parties involved. This raises issues of enforcement of foreign commercial arbitration awards in Vietnam. This article will provide an overview of the conditions and procedures for the recognition and enforcement of foreign arbitral awards in Vietnam.
1. Foreign arbitral awards are considered for recognition and enforcement in Vietnam in the following cases:
(i) Award of a foreign arbitrator to which that country and the Socialist Republic of Vietnam are both parties to an international treaty on recognition and enforcement of foreign arbitral awards;
(ii) The foreign arbitral award has not yet joined an international treaty to which Vietnam is a contracting party but is applied on the basis of the principle of reciprocity.
2. The judgments in Section 1 must satisfy all of the following conditions:
(i) The foreign arbitral award must be the final award of the arbitral tribunal to settle the entire content of the dispute, terminate the arbitration proceedings, and take effect.
(ii) Foreign arbitration and foreign arbitral awards are determined in accordance with the provisions of the Commercial Arbitration Law of Vietnam.
(iii) No more than 03 years from the date the foreign arbitral award takes legal effect (In case the application cannot be submitted on time because of force majeure events or objective obstacles).
(iv) The award is not considered by a foreign competent authority to annul or suspend the enforcement of that foreign arbitrator’s award.
The judgment creditors (or their legal representative) have the right to request the Vietnamese Court to recognize and enforce the foreign arbitral award in Vietnam when:
(i) Individuals must reside and work in Vietnam; or
(ii) The judgment creditors agency or organization has its head office in Vietnam; or
(iii) Assets related to the enforcement of foreign arbitral awards are present in Vietnam at the time of the request.
To recognize and enforce in Vietnam a foreign arbitral award, it needs to go through the following basic steps:
Step 1: Submitting an application
The executor sends the application to one of the following agencies:
(i) Ministry of Justice of Vietnam in accordance with the provisions of international treaties to which the Socialist Republic of Vietnam is a signatory; or
(ii) The competent court of Vietnam in cases where an international treaty to which the Socialist Republic of Vietnam is a contracting party does not provide or there is no relevant international treaty to request the Court to recognize and enforce a such judgment in Vietnam.
Step 2: Transfer the file to the Court
If the petition and dossier are transferred to the Ministry of Justice, the Ministry of Justice must transfer them to a competent court within 5 working days from the date of receipt of the petition and the prescribed papers and documents.
Step 3: Acceptance of the application
Within 5 working days from the date of receipt of the dossier transferred by the Ministry of Justice or receipt of the application and accompanying papers and documents sent by the petitioner, the competent court shall consider, accept and notify in writing:
(i) The judgment creditors, the judgment debtors, the legal representative in Vietnam;
(ii) Procuracy of the same level;
(iii) Ministry of Justice.
If, after accepting the case, the Court considers that the settlement of the request for recognition and enforcement in Vietnam of a foreign arbitral award falls within the jurisdiction of another Vietnamese court, the Court that has accepted shall issue the decision to transfer the file to the competent Court and delete the name of the request in the acceptance book. This decision must be immediately sent to the procuracies of the same level and the involved parties.
The involved parties have the right to complain, the procuracies have the right to make a petition against this decision within 03 working days from the date of receipt of the decision.
Step 4: Preparation for consideration of applications
Within 02 months and can be extended for no more than 02 months from the date of acceptance, the Court has the right to request the judgment debtor to explain any unclear points in the application. Depending on the case, the Court will issue one of the following decisions:
(i) Temporarily suspending the consideration of the application; or
(ii) Suspension of the application for consideration; or
(iii) Opening a meeting to consider the application.
The meeting to consider the petition must be held within 20 days from the date of the issuance of the decision (iii). The court must transfer the file to the procuracies of the same level for study within 15 days before the opening of the meeting; At the end of this time limit, the Procuracy must return the file to the Court to open a meeting to consider the application.
Step 5: The meeting to review the application
(i) Application review council;
(ii) Procurators of the procuracies of the same level;
(iii) The judgment creditors, the judgment debtors (or their legal representative).
How to perform:
Step 6: Sending of decisions of Courts
Within 15 days from the date of issuing the decision at Step 5, the Court must send such the decision to the involved parties (or their lawful representatives), the Ministry of Justice, and the Procuracy of the same level. Or
Within 05 working days from the date of issuance of the decision to suspend or terminate the settlement of the petition, the Court must send that decision to the involved parties (or their lawful representatives), Ministry of Justice and Procuracy at the same level.
Step 7: Appeal, protest (If any)
Appeal: The involved parties and their legal representatives have the right to appeal the decision at Step 5 within 15 days (except in case of force majeure events or objective obstacles) from the date the Court issues the decision.
Protest: The time limit for a protest of the People’s Procuracy of the province is 07 days and that of the High-Level People’s Procuracy is 10 days from the date the Procuracy receives the decision at Step 5.
Step 8: Considering appeals and protests (If any)
The superior people’s court shall review the decision of the provincial people’s court which is appealed or protested against within 1 month and may be extended for another 2 months from the date of receipt of the dossier.
The meeting to review the appealed or protested decision is conducted in the same way as the meeting to consider the application in Step 5.
The council to consider the appealed or protested decision has the following rights:
(i) Upholding the first-instance Court’s decision;
(ii) Modifying part or all of the first-instance Court’s decision;
(iii) Temporarily suspending the settlement of appeals and protests;
(iv) Suspending the settlement of appeals and protests;
(v) Canceling the decision of the first-instance court and transferring the file to the first-instance court for re-settlement according to first-instance procedures;
(vi) Canceling the first-instance decision and suspending the processing of the petition.
A decision of the Supreme People’s Court has legal effect from the date of its issuance and it can be protested against according to cassation and reopening procedures under the provisions of the Civil Code.
It can be seen that the process of recognition and enforcement of foreign court judgments in Vietnam is carried out as a case and the actual processing time can take up to several years. Therefore, the parties to the disputes need to make appropriate decisions to optimize time, opportunity costs, and actual losses.
The article is based on applicable law at the time noted as above and may no longer be appropriate at the time the reader approaches this article as the applicable law has changed and the specific case that the reader wishes to apply. Therefore, the article is only for reference.