It is not a must to choose the court.
“We have settled a case where a foreign ship crashed into the Saigon harbor. If the case was tried by the Court, the litigation would consume a lot of time, and then nobody would know when the ship would be released. The material lost would be uncountable”, Mr. Nguyen Minh Chi, the President of International Commercial Arbitration Center of Vietnam, which is near by the Vietnam Industry and Commerce Chamber, opened the workshop.
Yet, the dispute parties did choose the form of Commercial arbitration and after 10 days the case had been completely settled. Mr. Chi questioned: “So what are the reasons to force parties to bring the case to the Court if the disputes are not criminal?”
The Ordinance on Commercial Arbitration limits the jurisdiction of the Commercial Arbitrators in settling disputes. Thus, instead of negotiating with each other and the Council of Arbitrations would recognize the result of negotiation, the parties has only one choice and that is to bring the case to the Court.
On the other hand, in big cities, the Economic Court is overloaded while the Arbitration Center is constantly “hungry” for job. Some judges “wish” to transfer certain work to the Arbitration Center.
Mr. Jean – Pierre Ancel, Honorable Chief Judge of the Supreme Judicial Court of the Republic of France shared that: in France, parties of non-commercial contracts may choose arbitrators to settle disputes (for example professional contracts between doctors and hospitals, contracts among lawyers). The Court may intervene only in two cases: first to support the arbitrators and second, after the Council of Arbitration have issued decisions but the Court only considers whether the decision was given under a due procedure. The Court would not review the content of the case.
Mr. Jean-Pierre Ancel regretted if Vietnam limits the Arbitrator’s jurisdiction in “Commercial” field.
To what extend should the jurisdiction be expanded?
According to the latest Draft Law on Commercial Arbitration which was amended after having comments of the Standing Committee of the National Assembly, the jurisdiction to settle dispute of commercial arbitrators is expanded more in comparison with that provided by the present laws. The Draft proposed two solutions and accordingly the second one get more supports.
However, Mrs. Nguyen Thi Minh Hong, Deputy Director General of the Democracy and Law Board, The Father Land of Vietnam opposed that: The title of the law does not match with its scope of regulation. As the present definition of commerce is too narrow, it does not regulate disputes where only one party conducts commercial operation but another party does not. Thus, Mrs. Hong proposed that if the jurisdiction was expanded then the title of the Law should change accordingly as, for instance, the Law on Arbitration. Yet, if the definition “commercial” was omitted, then that would cause misunderstanding as there are a number of arbitrators (in Vietnamese language there is only one word for the concept arbitrator even in the field of sport): referee (arbitration in football), referee or umpire (volleyball arbitration )…
“We have experienced bitter lessons because of the limitation of arbitrator’s jurisdiction in dispute settlement”, Lawyer Nguyen Manh Dung – Deputy President of the Pacific-Asian Arbitration Center noticed. He supported the expansion of the jurisdiction and he opposed the provision that would forbid arbitrators to handle the disputes relating to real estates as such a provision does no comply with international custom. “Foreign investors put their money in real estates in Viet Nam and how we can explain to them when we exclude the disputes of this nature from the arbitrator’s jurisdiction?”, Mr. Dung wondered.
With regard to this issue, Mrs. Nguyen Minh Hong initiated that: It should be limited that one of the two subjects is the state management agency having power to render decision on land.
Thu Hằng