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a.

There was no arbitration agreement or the arbitration agreement is void


- Interpretation:
Arbitration agreement is agreement among parties regardings resolving their
disputes by means of arbitration.
=> Regarding 1st verse, “There was no arbitration agreement” shall mean:
+ The parties do not agree that arbitration is the dispute settlement agency before
and after the dispute occurs, hence the arbitration does not have jurisdiction to
solve the dispute.
+ Or: the parties have already agreed on arbitration but have a consensus
afterwards to cancel that arbitration agreement. When dispute occurs, 1 party still
bring the case to the arbitration and the arbitrator still resolves the dispute as they
do not know the cancellation of the arbitration agreement.
In theory, therefore, in 2 above cases, if the arbitrator still settle the dispute, then
the arbitral award shall be the other party request the court to cancel by reason
that “there was no arbitration agreement”.

=> HOLE TO PROTEST:


+ In the first case, court will not accept the case without the arbitration agreement.
+ In the second case, in practice, in the initial procedure prior to the trial, the
Chairman of arbitrator always asks the parties if the arbitration agreement still
available or the parties made change it. If the parties did cancel the arbitration
agreement beforehand, then this agreement will be written in a separate
document as well as the proceeding of the meeting.

=> Regarding 2nd verse, “arbitration agreement is void” shall mean:


+ Dispute arising in fields which is not n the jurisdiction of the arbitrator
+ The person who establish the arbitration agreement does not have jurisdiction
+ The person who establish the arbitration agreement does not have civil act
capacity
+ Arbitration agreement was not made in written form
+ 1 of the parties was deceived, threatened or forced during the time when the
arbitration agreement was made; and there are consensus announcing that the
arbitration agreement is void
+ Or: arbitration agreement violates the law
(check lại)

=> HOLES TO PROTEST:


To be more specific, the writing should give detailed explanation on which
necessary evidence is supplied to prove that 1 party is “deceived, threatened or
forced” or what “violation to law” really defines while arbitration agreement is
merely short regulations about the arbitration agency choice, proceeding rules,
location and arbitration language.
In practice, the situation that the arbitration agreement does “not stipulate” or
does “not clearly stipulate” the exact dispute parties or the arbitration centre/ the
authorities resolving the disputes stands high possibility of occurring. There may
be very small mistake like “general agreement” or “incorrect arbitration
agreement” ect … .

=> Cancel the arbitral award due to these grounds is not appropriate. These
regulations stress the form yet are week in law principle. They are not and will not
appear in any arbitration law elsewhere in any countries over the world. Most
arbitration laws usually cancel the arbitral award due to the following grounds:
+ 1 of the parties signing the arbitration agreement does not have capacity in
signing the agreement; or the arbitration agreement is not legally valid in
accordance with the applied law or the law of the country where the agreement
was made in case the parties did not clearly state; or
+ The party making the request is not fully informed of the appointment of the
arbitrator or of the arbitral tribunal or, in other words, unable to present his case;
or
+ The arbitral award for resolving a dispute is not specified or is not within the
terms of the settlement agreement, or it includes judgments on issues beyond the
scope of the agreement deals with the arbitration provided that the decisions on
the issues addressed by the arbitral tribunal may be separated from those which
are not referred to arbitration and only the part of the decision containing the
determination on the issue not addressed by arbitration may be canceled; or
+ The composition of the arbitral tribunal or of the arbitral proceedings is
incompatible with the agreement between the parties or, in the absence of such
agreement, is inconsistent with the law of the country where the arbitration is
conducted; or
+ The court finds that:
- Under the law of this country, the subject matter of the dispute can not be settled
by arbitration; or
- The decision of the arbitrator violates the public order of that country.
CASES:
1. Vietnam Corporation & Singapore Corporation did business with each other.
Vietnam Corporation, afterwards, was deceived by Singapore Corporation in
L/C procedure. Dispute arised and 2 parties decided to bring the case to the
arbitration in Vietnam. In the arbitration agreement, they agreed to choose
VIAC but in wrong written form: Vietnam International Arbitration Authority.
When the arbitral award was that Singapore was the loser, Singapore
Corporation requested the court to cancel the arbitral award according to
Article 68.2.a as VIAT is not the correct name.
In theory, due to the wrong name of VIAC, there was no arbitration agreement.
However, VIAC used the will and discretion of Vietnam party to determine that
the wrong name did not affect the agreement and the arbitration agreement
was still valid. The court could not cancel the arbitral award of VIAC and
Singapore, afterwards, was judged to be the loser.
2. On 05/10/2010, Thien Nga Company drafted the contract no.18 with the scan
of Mr.Vui’s signature and the stamp of Hanoi Company and sent via email to
National Rubber Corporation. Thien Nga Company also sent this draft to Hanoi
Company yet without the scan of Mr.Vui’s signature and the stamp of Hanoi
Company. Here, the contract No. 18 was established through Thien Nga
Company, but the subject in the contract was the Hanoi Company and National
Rubber. Afterwards, there was a dispute between National Rubber and Hanoi
Company, and National Rubber Corporation, basing on Contract No. 18, filed a
lawsuit against Hanoi Company. However, the Hanoi Company said that they
"did not sign the contract No. 18, which meant they did not sign the arbitration
agreement to select Vietnam International Arbitration Center to resolve the
dispute."
When the arbitral award was made, Hanoi Company requested for the
cancellation of the arbitral award and one of the issues the court resolved is to
determine whether or not the arbitration agreement existed between National
Rubber and Hanoi Company. The court has clearly stated the question: "It is
necessary to consider whether Hanoi and National Rubber have signed an
arbitration agreement to select Vietnam International Arbitration Center to
resolve the dispute on 05/10/2010? ". Then, the court concluded that "Hanoi
Company did not sign the arbitration agreement to select Vietnam
International Arbitration Center to resolve the dispute on October 5, 2010 with
National Rubber." Accordingly, the Court considered that "pursuant to Article
68.2.a of the Commercial Arbitration Law, the Examination Council accepts the
request of the request party, and decides to cancel the Arbitral Award No.
17/11" . Thus, the court canceled the arbitral award on the grounds that there
was no arbitration agreement. On this topic, Assoc. Prof., PhD Do Van Dai
(arbitrator of VIAC) commented that: "the fact that Hanoi Company did not sign
the contract No. 18 (including the arbitration agreement) on 05/10/2010 does
not mean that there is no arbitration agreement binding Hanoi Company. Hanoi
Company did not sign this contract but if there is evidence that this company
has a document invoking this Contract, then it is possible to determine the
arbitration agreement with Hanoi Company.”
In the decision of the court, it can be seen that "In fact, Hanoi company
confirmed that they did business of rubber sales with National Rubber but
under L/C rather than contract.” Normally, L/C would refer to a contract as L/C
does not exist independently. If the L/C mentioned in the court led to the
contract No. 18, it would be necessary to determine Hanoi Company's
agreement on the arbitration agreement in the contract no.18 (ie the binding
arbitration agreement of Hanoi Company though Hanoi Company did not
directly sign the arbitration agreement). This solution is clearly stated in Article
16.1 and Article 16.2.d of the Arbitration Law: “The arbitration agreement shall
be established in the form of arbitration agreement in the contract or in the
form of a separate agreement" and "The following forms of agreement shall
also be deemed to be in written: In the transaction, the parties refer to a
written document presenting arbitration agreement such as contracts,
documents, company regulations and other similar documents."

b. The composition of the arbitral tribunal was [or] the arbitral proceedings
were inconsistent with the agreement of the parties or contrary to the
provisions of this Law;
=> POINT TO PROTEST:
This regulation is, in fact, too broad and have high possibility of being misused since
arbitral proceedings are the summarization of all steps, process and procedure from the
beginning to the date of the arbitral award, specified on the proceeding regulations of
each arbitration centre. During this period, even small mistakes may lead to the ground
for the court to cancel the arbitral agreement.
-> When the arbitral agreement is cancelled due to small violations of the arbitration
cantre in the arbitral proceedings, the parties have to leave the dispute to be settled by
the court or another arbitration centre though they have no faults and do not expect this
situation. This is opposite with the will and discretion of the parties, and makes the parties
suffer loss, lose the trust in the arbitration. Or in other cases, the loser party may put
forward any small violations of the arbitrator so that the court shall cancel the arbitral
award which is disadvantageous for them.
This regulation, furthermore, states that if the arbitrator breaks any provisions out of 62
provisions of Vietnam Arbitration Ordinance, it will become the ground to cancel the
arbitral award. What matters is that among 62 provisions, there are many general
obligation such as “learn from experience, improve skills and levels in resolving dispute
of arbitrator” or “keep the documents, provide the duplicates at other parties’ or
authorities’ request”. This violation is really small/ petty and totally does not affect the
arbitral award.
=> This should be regulated that the parties have more will and initiative rights and reduce
the Court’s intervention in the arbitral award.