Legal Services - Litigation and Alternative Dispute Resolution - EN - 2

An
Introduction Of an award winning Dispute Resolution
Practice Group & ADR Legal Frameworks
Copyright ©2010 | VCI Legal. All right reserved. This presentation and its contents are copyrighted under applicable Vietnamese and international laws. Contents of this Professional Profile, in whole
or in part, could not be used without the authorization of the author in writing. Any unauthorized use is subject to be penalized under applicable laws and regulations
1
VCI LEGAL INTRODUCTION
 Business Law Firm providing “In‐house Counsel Service”,
specialized legal services for business and some Key Practice
Areas
• Corporations, M&A & Securities
• Investment and restructuring
• Banking, Finance & Capital Markets
• Insurance
• Real Estate & Construction
• Petroleum, Mining & Energy
• Infrastructure, Transport & Logistics
• Trade Policy & Competition
• Tax & Transfer Pricing
• Labor, HR Management & Compliance
• Dispute Resolution/Litigation & ADR: Mediation, Arbitration
LOCAL INSIGHTS MEET
INTERNATIONAL EXPERTISE
 A full service law firm with a seasoned team of
multi‐disciplinary professionals
 in‐depth understanding of the legal system,
business environment, and cultural background
in Vietnam.
 Offices: Hanoi and Ho Chi Minh City
 Professional staffs: 25
 Languages: Vietnamese, English,
Japanese, French, Chinese, Korean
INTERNATIONAL AWARDS
 Legal500, Chambers & Partners, IFLR 1000 and Legalese’s Tax
Director Handbook (global legal directories & ranking agencies)
and international professional magazines list VCI Legal among the
top law firms in Vietnam for: M&A, competition law, banking and
corporate, insurance, taxation, intellectual property, investment.
 Acquisition International Magazine:
• Vietnam Corporate Law Firm of the Year 2012‐2014,
• M&A Vietnam Law Firm of the Year 2013,
• Real Estate Law Firm of the year 2012‐2013
 ACQ Global Magazine:
• Vietnam Banking & Finance Law Firm of the Year 2012‐2013
• Vietnam Capital Markets Law Firm of the Year 2012‐2013
• Vietnam Corporate Law Firm of the Year 2012‐2013
• Vietnam M&A Law Firm of the Year 2012‐2013
 Financial Monthly – Law Firm of the Year 2011‐2013
 Corporate LiveWire – M&A Vietnam Law Firm of the Year 2012‐
2013
SERVICES OVERVIEW
 Full‐service business law firm: business‐
oriented approach to meet our clients’ needs:
 Finance, Legal & Stock Market Engineering
Service™;
 Investment Structuring & Placement®;
 Legal, Compliance & Risk Management
Service®;
 Dispute Resolution/Litigation and ADR
Services®;
 Intellectual Properties Strategic Management
Service®;
 IP Enforcement Service®.
SERVICE OVERVIEW | 1
 Corporate, Finance, Tax and Litigation on the
“In‐house Counsel Services”® platform
 Legal and Financial Advisory Services
 Project and Contract Negotiation
 Drafting & Translation
 Due Diligence
 Registration procedures
 State & Local Government Relations
 Regulatory Compliance
 In‐house training & workshops
 Project Planning and Management
 Daily Operations
WHAT SETS VCI LEGAL APART?
 A “Can Do” Attitude combining with a “Know How”
Capacity
 True sense of “Lawyer for business” independent legal
professionals who were trained & practiced in international
environment
 Most key personnel are lawyers with in‐house counsels
experience and deep “local” business insights,
 Not only legal practitioners but also business managers who
are willing to bring “some skin in the game”
 Strong professional & cultural background
 Committed to provide not only the best legal services but
also the most effective & practical business solutions
 Team player and partnering with clients in resolving
business issues
LOCAL INSIGHTS MEET INTERNATIONAL EXPERTISES
BANKS & FINANCIAL INSTITUTIONS
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MINING & ENERGY
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TECHNOLOGY & HEAVY INDUSTRY
information
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REAL ESTATE & CONSTRUCTION
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FMCG & LOGISTICS
information
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to regulations
HEALTHCARE & NUTRITION
information
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FRANCHISING, IPR & LICENSING
information
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DRP CLIENTS & EXPERIENCE*
15
Litigation &
Dispute Resolution
Services
DISPUTE RESOLUTION SERVICES
 Advise on
• litigation strategy and implementation procedures;
• commercial, corporate, and labor contentious
matters;
• product liability, allegations of tax evasion;
• IPRs, copyright and related rights; etc.
 Represent clients in all type of contentious matters
• mediation and negotiation between the parties
• involved by government authorities and
• before mediator, arbitrations and courts .
CORPORATE LITIGATION
 Dispute arisen between
 Shareholders;
 The company, board or management versus its
shareholders.
 Other disputes in relation to
 Company establishment and operation arising
between the company and its owners;
 Licensing authorities or any other third party.
COMMERCIAL LITIGATION
 Contractual and business disputes;
 Real property ownership and other real estate‐
related litigation;
 Cross‐border transaction disputes,
import/export and customs‐related claims;
 Debt recovery, construction claims and
litigation;
 Tax and custom tariffs litigation;
 Maritime litigation, etc.
CIVIL AND LABOR LITIGATION
 Labor disputes and employment
discrimination issues;
 Insurance policy and regulatory matters;
 Claim review & Site investigation;
 Trial representation, advocacy, etc.
SELECTED MATTERS & CLIENTS
Contentious Advisory Experience
 Advise clients on
• product liability matter of a major tobacco products
manufacturer.
• defending an electronics products company against allegations
of tax evasion by the customs authorities.
• in a dispute over a multi‐million US dollar hotel management
contract between a world leading Hospitality Company with a
local company.
• the MOIT’s Drafting Team of the Law on Consumer Protection of
Vietnam, funded by Star Vietnam (USAID)
• Tax disputes between foreign telecom contractors and Gen. Tax
Department
• Anti‐trust and anti dumping dispute on the export of local
products
Litigation Experiences
 Representing leading local and international corporations
 in defending against allegations of abuse of market dominance in the
premium beer market Vietnam.
 in the settlement of a labor dispute, administrative case before the
Hanoi Court, before the Ministry’s Inspection Department in a
copyright and related IPRs matter.
 recover successfully a large amount of money in a fraud transferring
to a commercial bank in Vietnam.
 dispute over a Share Purchase Agreement, involving a multi‐million US
dollar share purchase agreement
 numerous labor disputes in Hung Yen, Hanoi, Binh Duong, Dong Nai
and Ho Chi Minh City;
 numerous shareholders disputes on the nation‐wide market.
Frequent
COMMERCIAL DISPUTES
 US$ 25 M Shareholders’ dispute & real estate matter in
Nha Trang;
 Proxy investment, risk management, compliance and
mal practice liabilities for Securities firms in HCMC &
Hanoi;
 Contractual disputes in cross‐border transactions
between Vietnam, Kazakhstan & India;
 Carriers & customers disputes in HCMC & Hanoi, etc.
 Disputes on P&I terms & compensation between carriers,
insurer and customers.
Trail-blazing Cases
 Successfully negotiate and settled amicably a US$ 100M transactional dispute
between a top‐5 bank & investment fund in Vietnam on guarantee and payment
liabilities: first of its kind
 Represented developer in US$ 200M repo transaction dispute with a top
financial corporation in a first‐of‐its‐kind case;
 Acted a expert witness and advisor for a US law firm in a lawsuit involve
recognition of foreign court judgments in Vietnam and Vietnam court
judgments in the US;
 Advise and act on behalf of board members of top‐5 bank in a unprecedented
case involve in proxy investment, crossholding equity ownership and foreign
exchange control;
 Advise & represent local banks and clients in cross border frauds and US financial
fraud charges;
 Involve and advise in dispute of US$ 650M investment protection lawsuit
Vietnamese Government vs. US/offshore entities;
 Foreclosure of Vietnam fishing ships in by foreign court and authorities under
international maritime regulations.
Dispute Resolution Team
Thanh Q. Duong Esq.
Managing Counsel ‐ Tuan A. Phung Esq. Jim Okuley, Esq. Son Nguyen Esq.
Hanoi Branch | Head of Managing Partner Of Counsel | Director|
DRP International Banking &
Arbitrator Corporate
Nga T. P. Nguyen Loi D. Truong Thien H. Le Ngan T. H. Ho

Senior Paralegal | Hanoi Senior Consultant Paralegal Paralegal
Local Insights Meet International Expertise
Phung Anh Tuan, Esq.

Managing Partner
• A graduate of Northwestern University, Chicago, Mr. Tuan Phung is
listed among a few professional business lawyers who are well-trained
and have extensive experience in law and business.
• Currently serving as the Hon. Consul General of Finland in HCMC and
VAFI Vice Chairman and General Secretary of FICAC his international
experience provide him with a unique qualification as a business
executive and a legal expert
• He is the innovator the “In-house Counsel Service™”, “Finance, Legal
and Stock Market Engineering Services" and various specialized legal
services for multinational companies.
Mr. Phung was the General Counsel for UNILEVER Vietnam Previously,
Mr. Phung had practiced with COUDERT BROTHERS and DEUTSCHE
BANK in Vietnam.
• He’s also has the experience of advising many banks & financial
institutions such as Standard Chartered, CLSA, Credit Agricole,
Commonwealth Bank, Eximbank India, Bank of India, Overseas Bank Of
India, EAB, VIB, Sacombank etc.
Copyright ©2012 –VCI Legal. All right reserved. This presentation and its contents are copyrighted under applicable Vietnamese and
international laws. Contents of this Presentation, in whole or in part, could not be used without the authorization of the author in writing. Any
unauthorized use is subject to be penalized under applicable laws and regulations
VIETNAM CORPORATE LAW FIRM OF THE YEAR
Thanh Q. DUONG | Director

Dispute Resolution Practice
 Mr. Duong is currently acting as managing counsel for
Hanoi office with over 20 years of experience. He advises on
commercial, corporate, contract and labor contentious
matters. He represents clients before arbitrations, courts and
government authorities.
 Before joining VCI Legal, Mr. Duong was the VP - Legal
Counsel working for BOM of Techcombank after his time
working for the leading global law firm and local law firm in
Vietnam
 Previously, Mr. Duong served over ten years as a Judge in
the Courts in Hanoi.
 Mr. Duong has been a visiting lecturer at Vietnam Judicial
Academy, as well as taking part in professional training
courses and seminars in Vietnam and overseas
Son V. Nguyen | Director

Banking & Corporate Practice HCMC
 With over 15 years of experience, Son represents clients on a wide range of
practice areas including banking and finance, investment, corporation, M&A,
securities, taxation as well as real estate.
 Son has worked for major foreign law firms in Vietnam, such as Phillips Fox (now
Allens) and Indochina Legal. Prior to joining VCI Legal, he was the Head of the
Legal & Compliance Department at Vietnam International Bank (VIB) & SeABank
for many years.
 Son’s scope of expertise covers issues related to compliance, due diligence, debt
collection management, corporate governance, restructuring, private equity and
banks’ rights and interest protection.
 Son has extensive formal trainings and experiences on credit risk management &
compliance matters such as the Basel Accord and relevant risk management
issues
 Son practice also include international commercial arbitration. His PhD thesis focus
on the New York Convention 1958 vis-à-vis interpretation by national courts of
member countries, which aims to ascertain doctrinal and theoretical problems
associated with the Convention’s ambiguities such as inconsistent application of
the Convention within and across jurisdictions
29
ADR team – Of Counsels
 James Okuley J.D. US admitted attorney
corporate HCMC – California
 Quan H. Nguyen PhD commercial & corporate
disputes – Sydney – Melbourne AUSTRALIA
 Minh T. Nguyen PhD Senior Advisor -
Government relation Hanoi
 Jyoti Kapur LL.B & corporate, trade and tax
disputed New Delhi, INDIA
James M. Okuley, Esq.
Of Counsel | ADR – Mediator & Arbitrator
 Mr. Okuley is recognized by the Superior Courts of the State of
California as a qualified Arbitrator and Mediator. He has presided
over a significant number of complex legal disputes as an
Arbitrator/Mediator. He was also a Judge Pro Tem for the Orange
County Superior Court, California.
 As a licensed foreign lawyer in Viet Nam, Mr. Okuley has
represented a number of major international and local businesses
on international contracts, joint ventures and other business and
litigation matters in Viet Nam.
 Prior to being licensed in Viet Nam, Mr. Okuley was actively
practicing law in the State of California for 28 years. He personally
handled hundreds of litigation matters from inception to trial as
well as other business disputes and contract matters.
DISPUTES RESOLUTION
PROCEDURES IN COURTS
VIETNAMESE COURT SYSTEM
ECONOMY COURT SUPREME CENTRAL
PEOPLE’S COURT MILITARY COURT
CRIMINAL COURT
CIVIL COURT SPC’s Judicial Council
LABOR COURT
ADMINISTRATIVE
COURT
APPELLATE COURTS
ECONOMY COURT PROVINCIAL MILITARY COURT OF

PEOPLE’S COURT MILITARY ZONE
CRIMINAL COURT
CIVIL COURT Judicial Committee
LABOR COURT
ADMINISTRATIVE
COURT
DISTRICT COURT REGIONAL MILITARY
COURT
Submit advance court fees
Claim for damages +
Initiation of civil preliminary injunction
case by plaintiff Civil court Plaintiff
5 working days
4 months
(extendable once
for up to 2 months
Recognize agreement Successful
between involved Conciliation
parties 7 working
days
Unsuccessful
Decision to bring
the case to trial CIVIL
PROCEDURES
1
month
Hearing
LITIGATION PROCEDURES
AT THE COURTS
Different
Procedural Issues Judges’ Competence
Judicial System
• No Separation of • Language Barrier  • Independence
Powers Vietnamese • Impartiality
• No Precedent System • Legalized/Consularized • Fairness
• New Evidence Documents • Five Year Term
Presented • Written Evidence • Corruption
• Emails/Election
Documents
• Opposing Party
Attitude
• No “Contempt of
Court” Provision
OUR SUGGESTIONS
 Doing Homework: to avoid disputes and claims
‐ Thoroughly research local SUBSTANTIVE Regulations
‐ Carefully draft agreements, contracts…
 Taking Part in the Procedure: effective communicating with the Court

‐ Understand Local PROCEDURAL Regulations
 Firm: Based on the Laws
 Flexible: Out of Court Settlement
 Most Effective Solution: Retain a local law firm with lawyers with
“Local Insight” of
‐ Legislation and Language;
‐ Procedure before the Courts;
‐ Court customs, protocol and etiquette;
‐ Communicating with Local Agencies.
(*) PARTICULAR PROCEDURES OF
LABOR DISPUTE RESOLUTIONS
Regular disputes Distinct disputes
Dismissal or disputes over the
Labor Mediator
unilateral termination of labor contract
Failure of mediation
5 working Compensation & allowance upon
days termination of labor contract
Between housemaid and employer
Mediation
On social insurances
Unsuccessful
mediation Compensation for employees working
Failure of oversea
enforcement INDIVIDUAL
Court LABOR
DISPUTES
Comply with
regular civil
procedures
Labor Mediator
5 working Failure of
days mediation
Mediation Competency
Unsuccessful mediation determinatio Chairman of
Failure of enforcement n
2 working days district
People’s
Disputes on rights  Disputes on benefits Committee
 Disputes in enterprises
not entitled to go on strike
Chairman of district
People’s Committee
Failure of settlement
Labor Arbitration
5 working days Council
Decision on 7 working days
dispute resolution Mediation
COLLECTIVE
Failure of
enforcement
LABOR
Court
5 working days
DISPUTES
Go on strike – if
Comply with regular eligible
civil procedures
Submit advance court fees
10 working days
Claim for damages + Notice to advance
Initiation by a preliminary injunction Administrative court fees
plaintiff court Plaintiff
5 working days
10 working
days
Accept the case
4 months
ADMINISTRATIVE (extendable
PROCEDURES once for up to
2 months
Decision to bring Decision to suspense
the case to trial or stop the case
20 working
days
Hearing
Denounce crime, 20 days to
claim for civil determine
Denunciation to damages & Criminal Police evidence
Decision to initiate
criminal police receive the
apply for preliminary criminal case
petition
injunction
No evidence (no decision issued)
4 months (extendable 3
times, 4 months for each)
Investigation
conclusion (1)
* Supplement investigation:
Indictment issued by if not enough evidence (≤ 2 months)
prosecution authority CRIMINAL
* Re‐investigation: return to (1)
PROCEDURES
3
* Supplement investigation:
months
if not enough evidence (≤ 1 month)
Hearing
* Re‐investigation: return to (1)
ALTERNATIVE DISPUTES
RESOLUTION (ADR)
Practices & Regulations in Vietnam
ADR BACKGROUND
 Definition: Procedures for settling disputes by means
other than litigation in courts; e.g., by negotiation,
mediation and arbitration.1
 ADR Methods:
 Negotiation: disputed parties talk to each other to resolve
disputes, with or without supports of lawyers.
 Mediation: mediator keeps the parties talking and to help
them resolve disputes with their solution.
 Arbitration: a neutral third party hears the disputants'
arguments and imposes a final and binding decision that is
enforceable by the courts.
ADR Unpopularity | 1
 Main ADR forms in Vietnam: negotiation, mediation,
arbitration with some key advantages:
 Significantly faster;
 Less confrontational;
 Can be a win‐win arrangement;
 Flexible, proactive;
 Impartial, economical;
 Less corruption and lower chance of “rigging the system”.
 Yet ADR is not popular & litigation at courts is the
most popular mechanism to settle disputes.
ADR Unpopularity | 2
 None of ADR forms is preferred compared to court
litigation1
1. Lack of understanding of people regarding ADR;
2. Scarcity of qualified arbitrators/arbitration centers2 and mediators;
3. Arbitration & ADR fee;
4. Lack of mechanism to enforce arbitration awards/mediation
agreements;
5. Lack of stable and effective legal frameworks for ADR activities;
6. Arbitration mostly preferred as forum for ADR in business with
international or foreign elements
7. Language barrier for foreign litigants & local arbitrators/mediator
8. Unpopularity of Vietnam arbitration rules.
ARBITRATION |
INSTITUTIONAL or AD-HOC?
 Institutional arbitration  arbitration centers:
 Independent non‐governmental organizations having legal status;
 Having permanent offices, managements and lists of arbitrators;
 Settle disputes under its own Rules.
 Ad‐hoc arbitration:
 Founded upon dispute and automatically dissolve when dispute is
resolved;
 No permanent office, management or list of arbitrators;
 Settle disputes under rules as agreed by all parties or chosen among
Rules of Arbitration centers.
 Arbitration agreements:
 In principle, the parties must agree on the applicable arbitration
mechanism: institutional or Ad‐hoc;
 Otherwise, upon the occurrence of disputes, the parties must reach
another agreement OR proceed under proposal of the plaintiff.1
Initiation by Arbitration
a Plaintiff Petition + supporting center
docs + advance fees
10 working days
Arbitration tribunal Defendant
of 1 arbitrator
30 30 working days
Arbitrator
working
appointed by Self defense + arbitrator
days
President of selection/ Request for
Arbitration center arbitrator appointment
Failure of
selection 15 working days
ARBITRATION | 2
Arbitration Election of Chairman of Arbitration
tribunal of 3
Procedures of
arbitration tribunal by
tribunal founded
arbitrators
arbitrators dispute resolution by
Failure of 7 working days
ARBITRATION
election CENTERS
Consider validity of Chairman of arbitration
arbitration tribunal appointed by
agreement President of Arbitration
center
≤ 30
30 working
working
days
days
File a suit to the Summon of Arbitration Arbitration
Court arbitration session session (s) award
Recognition of
Mediation
Copyright ©2010 | VCI Legal. All right reserved. This presentation and its contents are copyrighted under applicablemediation agreement
Vietnamese and international laws. Contents of this Professional Profile, in whole
Initiation by a
Defendant
Plaintiff Petition + supporting
docs
30 working days
Self defense + Request Court to Court assign Judge to

ARBITRATION | 3 arbitrator selection appoint Arbitrator appoint Arbitrator
15 working days 7 working days
Procedures of Election of Chairman of Arbitration tribunal

arbitration tribunal by founded
disputes arbitrators
resolution by Failure of election
AD-HOC Request Court to Court assign Judge to Consider validity of
appoint Arbitrator appoint Chairman of arbitration
ARBITRATION Arbitration tribunal agreement
7 working
days
Arbitration Arbitration Summon of File a suit to the

award session (s) arbitration session Court
≤ 30 30 working
working days
days
Recognition of
Mediation
mediation agreement
ARBITRATION|
ADVANTAGES & DISADVANTAGES
ADVANTAGES DISADVANTAGES
Mutual agreement is
High costs and fees
respected
Flexibility Prolonged
Confidentiality Weak enforcement
High‐standard
Arbitrators
Arbitration award is
final
ARBITRATION CENTERS
IN VIETNAM1
1. Vietnam International Arbitration Centre at the Vietnam Chamber of
Commerce and Industry (VIAC) No. 9, Dao Duy Anh, Dong Da, Hanoi.
2. Asean International Commercial Arbitration Centre (ACIAC) 3F, No. 37
Le Hong Phong, Ba Dinh, Hanoi.
3. Financial Commercial Arbitration Centre (HCAC) 215/42 Nguyen Xi,
Ward 13, Binh Thanh District, Ho Chi Minh City.
4. Ho Chi Minh CityCommercial Arbitration Centre (TRACENT) No 460 Cach
Mang Thang Tam, Ward 4, Tan Binh Dist., Ho Chi Minh city.
5. Can Tho Commercial Arbitration Centre No. 116 Nguyen An Ninh, Tan
An Dist., Ninh Kieu, Can Tho.
6. Pacific International Arbitration Centre (PIAC) 11A Phan Ke Binh Str.,
Da Kao, Dist. 1, Ho Chi Minh City.
7. Vietnam Commercial – Financial – Banking Arbitration Centre
(VIFIBAR) 7F, 569‐573 Tran Hung Dao, District 1, Ho Chi Minh City.
NUMBER OF COMMERCIAL DISPUTES
SETTLED BY VIAC (1993 – 2012)1
MEDIATION | OVERVIEW
 Initial knowledge: Mediators help involved parties find
out solutions to settle the dispute.
 Model:1
 Independent mediation organization: China, Singapore,
France, etc.
 Attached to Arbitration centers and other ADR: UK,
Australia, Thailand, etc.
 Attached to Courts: US, Korea, etc.
 Advantages:
 Activeness and discretion of involved parties;
 More flexible and time saved;
 On basis of “Win – win” strategic.
MEDIATION | Not So New!
For years, mediation was provided a way of resolving conflicts and encourage
parties to use such method YET NOT ONE SEEMS TO NOTICE ?!
 Civil Code 2005 (Article 12) & Civil Procedures Code 2004 amended in 2011
(Art. 179 – 195):
 Compulsory step of dispute resolution, except case ineligible to mediate (Art. 181);
 On basis of free agreement between the parties.
  Guided by Resolution No. 05/2012/NQ‐HDTP.
 Commercial Arbitration Law 2010 (Art. 9, and Art. 58):
 3 categories of disputes; commercial activities, one party engaged in
commercial activities; other disputes between parties;
 Carried out by Arbitration Panel upon requested by the parties;
 Decision on recognition of mediation by Arbitration Panel is final as an
arbitration award.
 Commercial Law 2005 (Article 11 & 317.2), carried out by an agency, organization or
individual agreed by the parties.
 Enterprises Law 2005; Investment Law 2005 (Article 12.1); Law on Intellectual
Property 2005 amended in 2009, Law on Petroleum 1993 etc. bilateral treaties
signed by Vietnam.
MEDIATION OR CONCILIATION?
Mediation vs. Conciliation:
 Two concepts usually merged in Vietnam;
 Recognized as a preferred method of ADR;
 Mandatory requirement in some litigation proceedings involving
land or labour issues;
 Except for above, 2 common types of mediation:
 Non‐proceeding mediation as a procedure carried out buy a
third party in contractual disputes; and
 Proceeding –based mediation. During proceeding, courts
require parties to try to conciliate and create conducive
conditions to allow parties to settle before civil trial stage.
Law on Grassroots Mediation 20131
To encourage the settlement of disputes through mediators/
mediation at grassroots level whereby:
 Every dispute may be settled through grassroots mediation, except:
Conflicts and disputes infringe state or public interest;

 Violation of legislation on marriage and the family, civil transactions
that prescribed as not be reconciled by the civil procedure;
 Criminal liability or administrative violations;
 Conflicts or disputes not allowed to settle by grassroots
mediation by law.
 Mediators/mediation teams shall:
• Have good morality and legal knowledge;
• Be elected by local people.
MEDIATION | DRAFT DECREE
Draft of the Decree on commercial mediation by MOJ:1
 On basis of a mediation agreement (before or after the dispute
occurrence);
 Mediators: practicing independently or for a mediation organization
 2 options:
 Mediation centers recommend the mediator to provincial DOJ; or
 Competent authorities (MOJ, Courts, or else) recognize qualified
mediators by granting Practicing certificates/Mediator Cards.
 Mediation procedures:
 Involved parties may agree on rules or use the Rules of
mediation organizations;
 Successful mediation: involved parties reach agreement on the
settlement of the entire dispute or parts of it.
 Initiating a lawsuit or arbitration procedures shall not be deemed
as refusing mediation or suspending mediation procedures.
How to popularize ADR?
 Transparent legal frame & effective supporting
mechanism (financing, staff and facilities);
 Enhancing the dissemination of legal
knowledge about ADR activities to people –
especially traders/entrepreneurs;
 Improving quality of ADR staff and
organizations;
 Other approaches? FRENCH best practices?
ENFORCEMENT OF FOREIGN
JUDICIAL JUDGMENT/DECISIONS &
ARBITRAL AWARDS IN VIETNAM
LEGAL GROUNDS
I. Vietnam’s laws: principles under Civil Procedures Code:1
 On basis of international conventions; OR
 On basis of “reciprocity”.
II. International conventions/treaties:
 14 bilateral treaties on judicial interdependence:
 Took effect in involved countries;
 Issued by fully competent authorities; and
 Ensuring regulated procedures.
 International convention on recognition and enforcement
of foreign Arbitrators in New York 1958:
 149 members;2
 Vietnam joined on September 12, 1995  3 waivers (See slide 52).
COUNTRIES ENGAGING TO JUDICIAL
INTERDEPENDENCE TREATIES WITH VIETNAM
up to Aug 20121
3 WAIVERS OF VIETNAM
UPON NEW YORK CONVENTION 19581
 Details of waivers:
 Applicable to “commercial” disputes only  disputes
arising in relation to “activities for profit making
purpose”;2 instead of all disputes “arising out of
differences between persons, whether physical or
legal” under Art. 1.1 of the Convention;
 Applied to non‐membership countries on basis of
“reciprocity”;
 The Convention’s interpretation must comply with the
Constitution 1992 and other regulations of Vietnam.
NON-RECOGNITION & NON-ENFORCEMENT
OF JUDGMENTS & ARBITRAL ARWARS
Judgment/Decisions by Awards/Decisions by foreign
foreign Courts1 Arbitrators2 9
6
Ineligible to settle by Arbitrators under Vietnamese laws
Have not yet taken legal effect
Contrary to fundamental principles of the Vietnamese law
The judgment debtors absent from court
sessions of foreign courts because they had Parties to the arbitral agreement have no capacity to sign such
not been duly summoned agreement
The arbitral agreement is legally invalid
The cases fall under the exclusive
jurisdiction of the Vietnamese court The judgment debtors were not promptly/properly notified so
that they could not exercise their procedural rights or due to
other plausible reasons
There have been a legally effective civil
judgment or decision on the same case
made/recognized/being settled for Foreign arbitral awards are declared on disputes not
enforcement by Vietnamese Courts requested by the parties for resolution or going beyond the
request of the parties to the arbitral agreement
The statutes of limitation for judgment The foreign arbitration personnel or the procedures do not
execution have expired comply with the arbitral agreement or with the law of the
involved country
Contrary to fundamental principles of the
Vietnamese law Have not yet been legally binding on the parties
The foreign arbitral awards have been cancelled or suspended
from enforcement by competent bodies of the countries
Procedures for Recognition & Enforcement
Request by Request receipt Case files handed‐over to
litigants by MOJ 7 working competent Court1
+ supporting
days
documents 3 working days
3 working
days
Accept request Notify to the
Prosecutor
Judgment/decisions of foreign Courts: 4 months;
Decisions of foreign Arbitrators: 2 months
Decision to open
the trial
Judgment/decisions of foreign Courts: 15 working days;
Decisions of foreign Arbitrators: 10 working days
Judgment/decisions of foreign
Courts: 30 working days;
Send case files to Decisions of foreign Arbitrators:
the Prosecutor for 20 working days
study
The trial
Consider the request
Thank You For Your Attention!
MORE QUESTIONS?
Tuan A. Phung Esq.
Managing Partner | VCI Legal
• Honorary Consul General for Finland in HCM City
• Vice Chairman VAFI (Vietnam Association of Financial Investor)
• Former Board Member for the EUROCHAM Vietnam
• Board Member YBA Young Business Association | HCMC
Email: tuanphung@vci‐legal.com Cell: (84) 908 168 275
Thanh Q. Duong Esq.
Managing Counsel | Hanoi Office
Director | DR Practice
Email: thanhduong@vci‐legal.com Cell: (84) 934 282 666
www.vci‐legal.com
Ho Chi Minh City Hanoi
Suite 501, Sailing Tower Suite 904, ACB Building
111A Pasteur St. 10 Phan Chu Trinh St.
District 1, Ho Chi Minh City, Vietnam Hoan Kiem District, Hanoi, Vietnam
Tel.: (84‐8) 3827 2028/29 Tel.: (84) 4 3936 4985/87
Fax: (84‐8) 3823 4436
or in part, could not be used without the authorization of the author in writing. Any unauthorized use is subject to be penalized under applicable laws and regulations 63

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An

BANKS & FINANCIAL INSTITUTIONS

MINING & ENERGY

TECHNOLOGY & HEAVY INDUSTRY

REAL ESTATE & CONSTRUCTION

FMCG & LOGISTICS

HEALTHCARE & NUTRITION

FRANCHISING, IPR & LICENSING

Nga T. P. Nguyen Loi D. Truong Thien H. Le Ngan T. H. Ho

Phung Anh Tuan, Esq.

Thanh Q. DUONG | Director

Son V. Nguyen | Director

ECONOMY COURT PROVINCIAL MILITARY COURT OF

 Taking Part in the Procedure: effective communicating with the Court

Self defense + Request Court to Court assign Judge to

Procedures of Election of Chairman of Arbitration tribunal

Arbitration Arbitration Summon of File a suit to the

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