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MINISTRY OF EDUCATION AND TRAINING
HO CHI MINH CITY UNIVERSITY OF LAW
-----------***------------

MANAGING BOARD
OF SPECIAL TRAINING PROGRAMS

PHAN VO KHANH VY

INTERIM MEASURES IN
VIETNAMESE COMMERCIAL
ARBITRATION
BACHELOR THESIS
Commercial Law Faculty
Academic year: 2013 - 2017

HO CHI MINH CITY
2017


MINISTRY OF EDUCATION AND TRAINING
HO CHI MINH CITY UNIVERSITY OF LAW
-----------***------------

MANAGING BOARD
OF SPECIAL TRAINING PROGRAMS

PHAN VO KHANH VY

INTERIM MEASURES IN
VIETNAMESE COMMERCIAL


ARBITRATION

BACHELOR THESIS
Commercial Law Faculty
Academic year: 2013 - 2017

Supervisor: Dr. TRAN THANG LONG
Student: PHAN VO KHANH VY
Student ID: 1353401010091
Class: CLC38B
HO CHI MINH CITY
2017


DECLARATION
I hereby declare that the thesis “Interim measures in Vietnamese commercial
arbitration” is my own study under the guidance of Dr. Tran Thang Long
(Deputy Head of Legal English Division, Ho Chi Minh City University of Law).
All of the information other than my idea to be used or quoted has been
acknowledged by means of complete references. I shall bear full responsibility for
this declaration.
18th July, 2017

Phan Vo Khanh Vy


LIST OF ABRREVIATIONS
The following table describes the significance of various abbreviations used
throughout the thesis.
Abbreviation

CPC

Meaning
Civil Procedure Code 2015 (Law no. 92/2015/QH13) dated
25/11/2015

Decree 63

Decree no. 63/2011/ND-CP dated 28/4/2011 of the
Government regarding the application of Law on Commercial
Arbitration 2010

LCA

Law on Commercial Arbitration
54/2010/QH12) dated 17/06/2010

LECJ

Law on Enforcement of Civil Judgment (Law no.
26/2008/QH12) dated 14/11/2008, amended by Law no.
64/2014/QH13 dated 25/11/2014

LSCP

Law

on

State


Compensation

2010

Liability

(Law

(Law

10/2017/QH14) dated 20/6/2017, takes effect on
01/7/2018
Resolution 01

Resolution no. 01/2014/NQ-HDTP dated 20/3/2014

Resolution 02

Resolution no. 02/2005/NQ-HDTP dated 27/4/2005

no.

no.


INTRODUCTION ................................................................................................. 1
CHAPTER 1: THEORATICAL ISSUES OF INTERIM MEASURES .......... 8
1.1. Concept of interim measures ..................................................................... 8
1.1.1.

The concept of interim measures in international commercial
arbitration ........................................................................................................ 8
1.1.2.
The concept of interim measures in Vietnamese commercial
arbitration ...................................................................................................... 14
1.2. Functions of Interim Measures ................................................................ 18
1.2.1.
Common functions of interim measures under international
commercial arbitration .................................................................................. 18
1.2.2.
Function of interim measures under Vietnamese commercial
arbitration ...................................................................................................... 22
Conclusion of Chapter 1 ....................................................................................... 23
CHAPTER 2: INTERIM MEASURES UNDER THE VIETNAMESE LAW
............................................................................................................................... 25
2.1. The principle of concurrent jurisdiction .................................................. 25
2.2. Power to apply interim measures ............................................................ 26
2.2.1.

Power of arbitral tribunal to apply interim measures .................... 27

2.2.2.

Power of the court to apply interim measures ............................... 30

2.3. List of applicable interim measures ......................................................... 31
2.4. Conditions to apply interim measures ..................................................... 38
2.4.1.

Interim measures can be applied only at the request of a party .... 38


2.4.2.
Interim measures can be applied only if the party proves the
necessity of applying interim measures ........................................................ 38
2.4.3.
Interim measures can be applied only if the requesting party
provides security in order to compensate losses incurred by the applied party
in the course of being applied interim measures ........................................... 39
2.5. Procedures to apply, modify and terminate interim measures ................ 41


2.5.1.

Procedures to apply interim measures ........................................... 41

2.5.2.

Procedures to modify and terminate interim measures ................. 42

2.6. Damages .................................................................................................. 43
2.7. Power to enforce interim measures ......................................................... 45
Conclusion of Chapter 2 ....................................................................................... 46
CONCLUSION .................................................................................................... 47
BIBLIOGRAPHY



INTRODUCTION
1.


The rationale of the thesis

Commercially speaking, conducting business with traders bears some risks, one
of them is the possibility of having disagreement — dispute arising from or out of
these. The parties can settle the issues by either adjudicative processes such as
litigation or arbitration, or consensual processes such as mediation or conciliation.
Along with the development of the world economy, dispute resolutions as tools to
aid the parties in resolving disagreement, especially arbitration, have also
undergone many changes. Arbitration is preferred for the enforceability of awards,
the possibility to avoid specific legal systems and national courts, the flexibility
and confidentiality.1 Commercial arbitration appeals to the disputed parties and
has become one of the most-sought dispute resolutions, yet as developed as it is,
arbitration still has many drawbacks — “lack of effective sanctions during the
arbitral process” and “lack of speed” are named among the worse features of
arbitration in a recent survey 2 — needs a strengthening legal regime than the
current procedures.
Arbitration has many tools to keep parties from potential damages and to protect
the proceedings; one of them is interim measures — a temporary relief to protect
the parties’ right until the final award is rendered. Historically, national
legislatives usually do not grant arbitration the power to carry out some
procedural order, including interim measures order. 3 However, as the
international trade developed, international legal system, legal procedures for
commerce also grow. The nation states have to come forward and provide means
for the willing parties to opt out of the judicial system and adopt their own
dispute resolution forum. Many countries such as Switzerland, Korea, Hong
Kong have modified their national arbitration laws to expressly recognize that

1

White&Case, University of Queen Mary (2005), 2015 International Arbitration Survey: Improvements

and Innovations in International Arbitration, p. 5
2
Ibid.
3
Marianne Roth (2012), “Interim Measures”, 2012 Journal Dispute Resolution, pp. 425-435; Magaret L.
Moses (2008), The Principle and Practice of International Commercial Arbitration, p. 100; Chartered
Institute of Arbitrators (2015), International Practice Guidelines: Application for Interim Measures, p.1;
Gary B. Born (2011), International Arbitration: Cases and Materials, Chapter 10

1


courts and arbitrators possess concurrent jurisdiction to grant interim measures.4
Following this trend of development in legal regime for commercial arbitration,
Vietnam legislative also made an immense change by introducing the first
Vietnamese commercial arbitration regulation — the Ordinance on Commercial
Arbitration 2003 (OCA). However, under the OCA, only the competent courts are
enable to grant interim measures, arbitral tribunals did not have this power. As an
effort to uniform with international legal standard and to promote the competitive
business environment, in 2010, the National Assembly of Vietnam has adopted
the Law on Commercial Arbitration 2010 (LCA). Different from the OCA, the
LCA has enhanced the efficiency of arbitral procedure by granting arbitrators the
power to apply interim measures. Being able to apply interim measures helps
arbitrators in their rulings, especially the enforcement of an arbitral award.
Interim measures are also effective tools to aid the tribunal in analyzing evidences
in order to reach plausible findings.
However, since the promulgation of the LCA in 2010 (came into effect in 2011),
the application of interim measures in arbitral proceeding ordered by arbitrator is
by far less popular than the court-ordered ones. The fact that the applicant
preferred court-ordered than arbitral tribunal-ordered interim measures suggests

that there may be some shortcomings on the application procedures, which then
hold back the arbitral tribunal to efficiently issue provisional order. The issues
vary from the power to apply interim measures to the applicable measures in
commercial arbitration. Therefore, it is fitting to conduct further research on the
defect of law and making proposal to enhance and strengthen Vietnam legal
regime regarding interim measures in arbitral procedures.
The above reckoning urges the choice of “Interim measures in Vietnamese
commercial arbitration” (hereinafter known as “thesis”) as bachelor thesis topic to
have better understanding on current regulations of Vietnam regarding interim
measures in commercial arbitration. Furthermore, the thesis aims to find out the
gaps between current legislation and practices, in order to demonstrate the need to

4

Article 374.1 Swiss Code of civil procedure; Article 183.1 Private International Law Act; Article 18
Arbitration Act of Korea; Article 32 KCAB International Arbitration Rules; Section 35 Hong Kong Cap.
609 Arbitration Ordinance

2


adopt international legal standard regarding interim measures in commercial
arbitration.
2.

Literature reviews

2.1.

Former studies from scholars outside of Ho Chi Minh City University


of Law
There are various researches on Vietnam arbitral procedures, some of them
provided legal study on interim measures provisions, including:
(1)

“Interim measures in arbitral procedures” by Pham Duy Nghia, Journal of

Legislative Study, 23/2010 pp. 77-84. This research analyzes the definition of
interim measures, the power to issue interim order, the necessity of interim
measures and provision of security to request for interim measures. This research
gives general idea and points out certain defects regarding the above-mentioned
issues, yet since it was conducted in 2010, it has not provided practical view on
those issues.
(2)
“Vietnam Legislation on Commercial Arbitration” by Do Van Dai, Tran
Hoang Hai, National Politics Publisher, 2011, pp. 260-290. The authors
thoroughly analyze the Vietnamese legal regime on interim measures. However,
this work was conducted in 2010 and has yet to provided practical view on the
application of the LCA.
(3)
“The authority to apply interim measures of arbitrator in some national
legislation and Vietnam” by Tran Hoang Hai, State and Law Journal, 8(292)
2012, pp. 56-65. This research focuses deeply on the issue of jurisdiction of
arbitrator in applying interim measures in some national legislation and Vietnam,
yet it has not provided deep research on other aspect of interim measures.
(4)
“Perfecting legislation on application of interim measures in commercial
dispute resolution in Vietnam” by Nguyen Thi Thu Thuy, State and Law Journal,
11/2014, pp. 59-64. The author provides general analysis on the definition and

necessity, concludes on the ex parte nature of interim measures. The author also
points out the shortcoming of ex parte measures, and proposes some changes on
this matter.
(5)

“The authority to apply interim measures in arbitral procedures” by
3


Nguyen Thi Thu Thuy, State and Law Journal, 8/2016, pp. 25-30. This legal
research focuses on the power to apply interim measures in Vietnam arbitral
procedures. The author also proposes adopting emergency arbitration legal
regime. However, the study provides a comparative view on Vietnam regulation
and international commercial arbitration regarding only the power to apply
interim measures, not other issues of interim measures.
(6) “Commentary on Civil Procedures Code, Law on Commercial Arbitration”,
Justice Publisher, 2017, pp. 237-261. This latest research contains a
comprehensive analysis on all aspect of interim measures and points out some
practical issues in applying interim measures in Vietnamese commercial
arbitration. However, the research has not provided a comparative view of
Vietnamese legislation and international commercial arbitration regulation.
These legal studies focus on interim measures provisions under the LCA, some
provide deep research on one aspect of interim measures, as well as
understanding of some other nation’s regulations. However, these researches have
not provided a comprehensive practical review on the application of interim
measures on all aspects of interim measures in Vietnamese commercial
arbitration.
2.2.

Former studies in Ho Chi Minh City University of Law


Former scholars in Ho Chi Minh City University of Law have conducted two
legal researches on interim measures under Vietnamese arbitration law, namely:
(1)
The Master thesis on Interim measures in Vietnamese Law on Commercial
Arbitration (in Vietnamese: Biện pháp khẩn cấp tạm thời trong pháp luật Việt
Nam về Trọng tài thương mại), by Phan Nhut Binh in 2010. This research paper
provides legal study on the third Draft of the LCA, comparing with interim
measure provisions under the OCA. However, this thesis is unable to give
assessment on the practical application of the LCA as it was conducted when the
said law was under discussion.
(2)
The Master thesis on Interim Measures in Vietnamese arbitral procedures
(in Vietnamese: Biện pháp khẩn cấp tạm thời trong tố tụng trọng tài thương mại
Việt Nam), by Truong Thanh Nhut in 2013. This legal work successfully
analyzed the application of interim measures, with some remarkable knowledge,
4


namely: (i) the principle of application of interim measures under the LCA; and
(ii) the shortcoming and recommendations to perfect the interim measures
provisions under Vietnamese arbitral procedures. Nevertheless, the thesis has not
provided legal review by case study on Vietnamese arbitral procedures and the
current legislation on arbitral procedures has been implemented for three more
years after it was conducted. Therefore, it is necessary to conduct another legal
study on Vietnamese commercial arbitration by means of case study and
comparative law on order to identify the shortcoming of Vietnam regulations on
interim measures in arbitral procedures.
3.


The purpose and objectives of the thesis

The thesis aims to analyze the provisions with respect to interim measures under
Vietnam’s regulations. Moreover, it also seeks to identify the defect of Vietnam’s
legislation by assessment of practical implementation of regulations through case
study. Finally, through the practical observance and by comparative research on
some established arbitration laws and rules, the thesis shall put forward proposals
on establishing a more comprehensive, effective legal regime in Vietnam.
To achieve the aims set out above, the following objectives must be carried out
by the thesis:
(i)
to analyze the provisions regarding interim measures in arbitral procedures
under Vietnam’s regulation;
(ii)

to evaluate the implementation of current laws and regulations by studying

the cases involving the application of interim measures in arbitral procedures;
(iii) to compare provisions of Vietnam’s regulation and international legal
standard such as the UNCITRAL Model Law on International Commercial
Arbitration in order to assess Vietnamese legal regime with respect to interim
measures in commercial arbitration; and
(iv) to propose some changes to strengthen Vietnam’s provisions of interim
measures in arbitral procedures.
4.

The research objects and delimitations of the thesis

The research object of the thesis is Chapter VII, Articles 48 — 53 of the LCA and
relevant regulations concerning interim measures in Vietnamese commercial

5


arbitration.
The thesis shall have five delimitations. Firstly, the thesis shall focus solely on
legal study regarding the provisions of interim measures in commercial
arbitration, namely: (i) Chapter VII, Articles 48 — 53 of the LCA; and (ii) the
relevant regulations concerning the application of interim measures in
commercial arbitration. Secondly, the thesis shall focus on interim measures
applied in commercial disputes in arbitral procedure under Chapter VII of the
LCA, interim measures applying in other sectors shall not be scrutinize. Thirdly,
the recognition and enforcement of interim measures applied by foreign
arbitrators shall not be scrutinized. Fourthly, the relevant laws, works, books and
online information as mentioned in the thesis shall be collected from trustworthy
sources. Finally, the reasoning, analysis, assessment and case study hereafter
shall be pursuant to the current applicable legislation.
5.

The methodology of the thesis

Legislative analysis is used throughout the thesis with respect to the applicable
provisions regarding interim measures in order to make clear the relevant legal
issues in applying interim measures in arbitral procedures.
Case study methodology is used throughout the thesis to illustrate the application
of interim measures in arbitral procedures under Vietnamese regulations in order
to identify the defects in Vietnamese regulation on the issue.
Comparative law is utilized in order to (i) assess Vietnamese arbitration law and
(ii) identify the shortcomings in Vietnamese arbitral regulations on interim
measures in order to propose some changes in legislation.
6.


The contribution of the thesis

The thesis shall be the latest complete study in bachelor degree in Ho Chi Minh
City University of Law on interim measures under Vietnamese arbitral
procedures regulations, taking into account the recent practice of applying interim
measures. Moreover, the thesis also synthesizes the former scholar works with
analytical and objective views and may be a useful learning material for other
students in Ho Chi Minh City University of Law. Ultimately, the thesis provides
additional information assisting the process of revising the legislation in the near
future.
6


7.

The structure of the thesis

The thesis consists of three chapters in order to fulfill its functions and aims as
listed in part of the purpose and respective functions of the thesis.
Chapter 1: Theoretical Issues of Interim Measures
The first chapter provides study on (1) the concept; and (2) the functions of
interim measures under international and Vietnamese commercial arbitration.
Chapter 2: Interim Measures under the Vietnamese Arbitration Law
The second chapter focuses on the regulation of Vietnamese arbitral procedures
with respect to interim measures. The chapter comprises two sections: (1) the
study on arbitral tribunal-ordered interim measures and (2) the study on courtordered interim measures. Along with the analysis on legal regime, each section
also provides (i) comparative study on Vietnamese arbitration procedure; and (ii)
a practical view by conducting case study on the applications of interim measures
in Vietnam to make clear the defect of law and make proposal regarding

Vietnamese arbitral procedures on interim measures.

7


CHAPTER 1: THEORATICAL ISSUES OF INTERIM MEASURES
Recent years have seen the strong growth of arbitration as an alternative dispute
resolution for the advantages it offers over litigation, making it important to
strengthen the arbitration procedures in order to protect parties’ rights in a dispute.
Legislators have created many tools to ensure this purpose, and one of it is
interim measures.5 In the course of rendering a dispute, the final award would be
of little value to the successful party if the behavior of the other party renders the
outcome of the proceedings largely ineffective - such as when a party dissipates
its assets or places them in a jurisdiction where enforcement is cumbersome or
otherwise impossible. In order to avoid this type of harm and to protect parties’
rights, the precautionary claimant may request interim measures such as an order
restricting a party from transferring money to a less favorable enforcement
regime or an order appointing an administrator of assets.6 Interim measures are
diverse and granted basing on the circumstances of the dispute in question. It is
hard to have a clear understanding on exactly what an interim measure is, yet
being an effective tool and is often seek by the parties, it is crucial to have a
comprehensive understanding on the concept of interim measures. Their concept
also indirectly reflects the extent of arbitrators’ power to issue such measures in a
particular jurisdiction.7
1.1.

Concept of interim measures

In order to lay down a comprehensive concept of interim measures, this section
shall explore two issues, the concept of interim measures (1) in international

commercial arbitration; and (2) in Vietnamese commercial arbitration. The in
each issue, (i) a general definition including common characteristics; and (ii) the
form of interim measures shall be carefully scrutinized.
1.1.1. The concept of interim measures in international commercial
arbitration

Mika Savola (2016), “Interim Measures and Emergency Arbitrator Proceedings”, Croatia Arbitration
Yearbook Vol. 23, pp. 73-97
6
Marianne Roth (2012), supra (3), pp. 425-435
7
Wael Shalaan (2013), Interim Measures in International Commercial Arbitration — A Comparative
Study of the Egyptian, English and Scottish Law, PhD thesis, University of Stirling, p. 14
5

8


a. Definition of interim measures in international commercial arbitration
It is tough to uncover a general definition of interim measures that comprises all
characteristics and cases as the measures are different in each legislation. The
author will first attempt to lay down a definition of interim measures in
international commercial arbitration by (i) compiling the different terminologies
used in some legislations and by some scholar; (ii) breaking down the various
terminology to figure out the essence of an interim measure; (iii) drawing out a
general acceptable definition of interim measure in international commercial
arbitration.
Internationally, many legislations grant the arbitral tribunal the power to apply
interim measures, including, inter alia, Switzerland, England, Hong Kong,
Singapore, Russia, Hong Kong, Germany. 8 Some other arbitration rules also

allow the tribunal the power to apply interim measures such as the ICC, SCC,
ACICA.9 Different legal systems refer to interim measures using different terms
such as interim measures, 10 interim measures of protection, 11 preliminary
measures, provisional remedies, 12 compulsory measures, 13 interlocutory orders,
conservatory measures 14 and protective measures. These differences depend on
how the respective national law defines the measures and the thesis shall explain
further below.

8

Article 183 Swiss Private International Law of 1987; Article 1022 Dutch Civil Procedural Law 2015
Book 4; Article 1041 German Arbitration Law 1998; Article 17.1 British Columbia International
Commercial Arbitration Act in Canada (Last amended on January 1, 2015); Section 39 Arbitration Act
1996 of England; Section 35 Hong Kong Cap. 609 Arbitration Ordinance; Schedule 1 Article 17
Singapore International Arbitration Act; Article 17 Russian Federation Law on International Commercial
Arbitration; Article 25 Russian Federation Law on Commercial Arbitration
9
Article 28 The 2017 Rules of Arbitration of International Chamber of Commerce (ICC Rules); Article 37
Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce (SCC Rules) 2017;
Article 33 Australian Centre for International Commercial Arbitration (ACICA) Arbitration Rules 2016
10
Article 37 SCC Rules 2017; Article 17 The UNCTRAL Model Law on International Commercial
Arbitration 1985 with amendments as adopted in 2006 (the MAL); Article 26UNCITRAL Arbitration
Rules 2010; Article 28 ICC Rules
11
Article 33 ACICA Arbitration Rules 2016; Article 17.1 British Columbia International Commercial
Arbitration Act in Canada (Last amended on January 1, 2015); Article 1041 German Arbitration Law 1998
12
Article 183 Swiss Private International Law of 1987
13

Article 753 Argentine Code Of Civil And Commercial Procedure
14
Rule 23 China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules
2015; Article 183 Swiss Private International Law of 1987; Article 1022 Dutch Civil Procedural Law
2015 Book 4 (unofficial translation by Netherlands Arbitration Institute, can be found here
http://www.nai-nl.org/downloads/Text%20Dutch%20Code%20Civil%20Procedure.pdf)

9


Additionally, there are scholars such as Lew, Mistelis and Kröll, who use these
terms interchangeably as they cannot lay down the exact definition due to the
variations of measures depending on the circumstances of the claim, yet they
found that these measures also share some common features. 15 Others such as
Fouchard recognize some differences between “interim” or “provisional”
measures and “conservatory” measures, 16 some maintain a single definition
encompassing both categories: interim and conservatory.17 However diverse the
term used, it frequently consists of two elements, an adjective and a noun (for
example, interim measures or provisional relief). The author will now attempt to
comprise some provisions with a variety of terms from different legislations and
analyze the adjective and the noun separately in order to pin point the substance
of an interim measure.
Firstly, the terminology for the adjectives — “interim” or “provisional” and
“protective” or “conservatory” — are often used interchangeably 18 and are
different in each jurisdiction. Although the UNCTRAL Model Law on
International Commercial Arbitration 1985 with amendments as adopted in 2006
(MAL) and the UNCTRAL Arbitration Rules as adopted in 2013 (Arbitration
Rules) uses the term “interim”, it is followed by many legislations that adopt its
wording such as Hong Kong and Singapore 19 whereas England 20 prefers
“provisional”. On the other hand, Switzerland and Netherlands refers to the

measures using the term “conservatory”. “Interim” or “provisional” refers to the
nature of the order while “protective” or “conservatory” refers to the purpose of
the order. 21 The nature of an “interim” or “provisional” measure is that it does not
bind the merit of the case but serves as a procedural necessity and complement
the final awards. The purpose of a “protective” or “conservatory” measures is
usually to “protect” the status quo of the parties and “preserve” assets involved in
15

Julian D M Lew, Loukas A. Mistelis, Stefan M Kröll in Comparative International Commercial
Arbitration use these terms like synonyms. See Wael Shalaan (2013), supra (7), pp. 15-16
16
Wael Shalaan (2013), supra (7), p. 15; Philippe Fouchard, Berthold Goldman (1999), International
Commercial Arbitration, pp. 721-728
17
Wael Shalaan (2013), supra (7), p. 15
18
Philippe Fouchard, Berthold Goldman (1999), supra (16), pp. 709-710
19
Section 35 Hong Kong Cap. 609 Arbitration Ordinance; Schedule 1 Article 17 Singapore International
Arbitration Act
20
Section 39 Arbitration Act 1996 of England
21
Philippe Fouchard, Berthold Goldman (1999), supra (16), pp. 721-722

10


the dispute or evidence supporting a claim.
Secondly, the terminology for the noun “measures” also varies from “measures”,

“reliefs” to “remedy”.22 The Black Law Dictionary defines “relief” in “interim
relief” as “redress or benefit that […] a party ask of the court”23, it also termed as
“remedy” — “the means of enforcing a right or preventing or redressing a
wrong”. 24 Among the above terms, the author frequently comes across
“measures”.25
Therefore, having thoroughly scrutinized the terminology used to refer to interim
measures in international commercial arbitration, it is not simple to draw out a
comprehensive concept which is incorporated with its key characteristics.
However, among all the arbitration laws and rules, the definition of interim
measure in the MAL should be considered as broad enough to cover all the key
issues. The MAL was drafted by UNCITRAL with the purpose to establish a
unified legal framework for the fair and efficient settlement of disputes arising in
international commercial relations and is recommended to States when drafting
their own arbitration law. Many countries have adopted the MAL as their
arbitration law. 26 Therefore, the MAL’s definition is the most appropriate for
interim measures as it addresses all arbitration cases in which these measures are
likely to be issued. Article 17.2 the MAL defines interim measures as follows:
An interim measure is any temporary measures, whether in the form of an
award or in another form, by which, any time prior to the issuance of the
award by which the dispute is finally decided, the tribunal orders a party
to:
(a) Maintain or restore the status quo pending determination of the dispute;
(b) Take action that would prevent, or refrain from taking action that is

22

Article 753 Argentine Code Of Civil And Commercial Procedure
Bryan A. Garner (2009), Black Law Dictionary 9th edition, p. 1404
24
Ibid., p. 1407

25
Article 37 SCC Rules 2017; Article 17 MAL; Article 26 UNCITRAL Arbitration Rules 2010; Article 28
ICC Rules 2017; Article 818 Italian Code Of Civil Procedure
26
See Status, UNCITRAL Model Law on International Commercial Arbitration (1985), with amendments
as
adopted
in
2006,
can
be
found
at
http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration/1985Model_arbitration_status.html
(last
visited 23 June 2017)
23

11


likely to cause current or imminent harm or prejudice to the arbitral
process itself;
(c) Provide a means of preserving assets out of which a subsequent award
may be satisfied; or
(d) Preserve evidence that may be relevant and material to the resolution of
the dispute.
From the definition above, it can be concluded that the fundamental characteristic
of interim measures is temporary, with four common functions, which will be
further analyzed in the next section.27

After laying down a general definition along with the purposes of interim
measures, it is notable to counter another controversial issue, which directly
related to the enforceability28 of a measure, the form of interim measures.
b. Form of interim measures in international commercial arbitration
In international arbitration, the form of an interim measure varies, and it is up to
the law applicable to the dispute to decide on this regard. For example, in
England and Wales, the available reliefs are in the form of orders, directions and
interim awards.29 Other legislations, however, restrict it to either procedural order
or interim award. For example, New Zealand and Scotland require the interim
measure order in form of an award,30 while Vietnam — order.31 Some set of rules
(such as the Rule of Arbitration of ICC as amended in 201732 and SIAC Rule
201633) give the arbitrators broad discretion and do not limit the form of interim

27

Thomas, Webster, Buhler, M. (2014), Handbook of ICC Arbitration: Commentary, Precedents,
Materials, p. 423
28
In terms of the recognition and enforcement of interim measures, court intervention is ultimately needed
since arbitrators lack coercive powers and cannot exercise public authority.
29
Nigel Rawding QC, Elizabeth Snodgrass, “Commercial arbitration of England and Wales”,
http://globalarbitrationreview.com/jurisdiction/1003135/england-&-wales, last visited 07/7/2017
30
Alan Redfern (2004), Law and Practice of International Commercial Arbitration, p. 335
31
Article 50.4of the LCA
32
Article 28 ICC Rules provides that “any such measure shall take the form of an order, giving reasons, or
of an award, as the arbitral tribunal considers appropriate”

33
Lee Anna Tucker (2011), "Interim Measures under Revised UNCITRAL Arbitration Rules: Comparison
to Model Law Reflects both Greater Flexibility and Remaining Uncertainty", International Commercial
Arbitration Brief 1, no. 2 (2011), pp. 15-23

12


measures.34
Nonetheless, interim relief is usually rendered in two forms — procedural order
or an interim award, the former is deemed more informal than the latter. 35
Moreover, the tribunal, when exercising its discretion on whether to render an
award or an order, shall take into account the type of measure being invoked, as
well as the applicable procedural law.36
In case the tribunal is given broad discretion, there are two views on whether to
grant interim order or interim award. Firstly, the tribunal is sometimes advised to
grant informal procedural order over interim award. The ICC, in guiding the
application of interim measure, recommends issuing procedural order.37 This is
because under Convention on the Recognition and Enforcement of Foreign
Arbitral Award (hereinafter New York Convention), the temporality and urgency
of interim measures are not compatible with the nature of “award”. 38 For the
matter of urgency and other related practical problem,39 the quickest and simplest
way of providing the relief is to issue a procedural order.40 Secondly, some author
such as Wardynski and Liebsher, opine that an interim award has a small chance
to be enforceable in foreign jurisdiction.41 However, this view is not commonly
shared in various legislations. For example, in Croatia, Belarus, Ukraine, or
Slovakia, interim measures are granted in the form of the award shall not be
enforced under New York Convention as it lacks finality, whereas in Bulgaria
and Poland it is admissible to enforce an interim award, however, there are no
known case. 42 This is because the enforceability of an interim award depends

34

Marianne Roth (2012), supra (3), p. 425-435
Marianne Roth (2012), supra (3), p. 425-435
36
Ibid.
37
Secretariat of the ICC (2012), Secretariat's Guide to ICC Arbitration, p. 291
38
Grégoire Marchac (1999), “Note & Comment: Interim Measures in International Commercial
Arbitration Under the ICC, AAA, LCIA and UNCITRAL Rules”, American Review of International
Arbitration, no. 123, pp. 123-139
UNCITRAL (2016), UNCITRAL Secretariat Guide on the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York, 1958), p. 12
39
International Practice Guidelines: Application for Interim Measures of the ICC explains that there are
practical problem regarding the recognition and enforcement of the awards containing the interim award
under the New York Convention
40
CIArb (2015), supra (3), Article 6; Secretariat of the ICC (2012), supra (37), p. 291
41
Association for International Arbitration (2007), Interim Measures in International Commercial
Arbitration, p. 88, fn. 89
42
Ibid., pp. 88-89
35

13



largely on each jurisdiction since what considered as an “award” is determined by
national courts where recognition and enforcement is sough.43
Therefore, it can be concluded that the form of interim measure depends largely
on the applicable law of the dispute. When granting interim measure, the tribunal
must take into account the regulation of the applicable law. If the law allows
room for consideration on the form of relief, the tribunal is advised to apply
interim order.
1.1.2. The concept of interim measures in Vietnamese commercial
arbitration
The applicable law for Vietnamese commercial arbitration including Vietnamese
Civil Procedure Code 2015 (CPC) and the LCA, and the thesis finds that there
has yet to be a lucid definition of interim measures in context of commercial
arbitration but only definitions in civil procedures. Thus, the author will analyze
the regulation of civil procedures, comprising the scholars’ understandings of
interim measures in both context and then attempt to lay down a comprehensive
concept of interim measures under Vietnamese commercial arbitration. There are
two sub-sections in this section: (a) the definition; and (b) the form and common
features of interim measures in Vietnamese commercial arbitration.
a. Definition of interim measure under Vietnamese commercial arbitration
This section shall consist of two issues, (i) the terminology and (ii) the definition
under Vietnamese commercial arbitration.
Firstly, the terminology of interim measure under the CPC and the LCA is “biện
pháp khẩn cấp tạm thời”, 44 which was translated in English as “provisional
emergency measure” 45 and “interim urgent measures”. 46 The terminology in
Vietnamese directly gives out its fundamental features as an interim measure,
“temporality” and “urgency”. As the mentioned translation is only for reference,

43

Grégoire Marchac (1999), supra (38), p. 11

Article 111 of the CPC and Article 49 of the LCA
45
See the Ministry of Justice’s translation of Civil Procedure Code 2004 at
http://www.moj.gov.vn/vbpq/en/lists/vn%20bn%20php%20lut/view_detail.aspx?itemid=7842
46 46
See the Ministry of Justice’s translation of Ordinance on Commercial Arbitration 2003 at
http://moj.gov.vn/vbpq/en/lists/vn%20bn%20php%20lut/view_detail.aspx?itemid=8908
44

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for the sake of this thesis, “biện pháp khẩn cấp tạm thời” under Vietnamese
commercial arbitration shall be referred as interim measures.
Secondly, since the LCA provides neither any definition nor function of interim
measures but an exhaustive list of applicable interim measures in arbitral
proceedings,47 along with requirements to request. Hence, in order to have an idea
on what might be interim measures in arbitration, the author will analyze (i) legal
definition of interim measures under the current CPC; (ii) scholars’ understanding
regarding interim measures in civil procedure and commercial arbitration; and
(iii) a general definition of interim measure in commercial arbitration.
(i) The legal definition of interim measures under the current CPC
Article 111 of the CPC stipulates that:
During the resolution of civil lawsuits, the involved parties or their lawful
representatives or agencies, organizations or individuals instituting the
cases defined in Article 187 of the CPC may request the Courts handling
such cases to apply one or more provisional emergency measures provided
for in Article 114 of this Code to temporarily relieve an emergency request
of a party, to protect lives, health, property, to collect and preserve
evidence, to preserve the current status and avoid irreparable harm, to

protect the arbitral process or the award’s enforceability.48
This provision focuses on the five issues — “temporary”, “urgency”, “right to
request”, “power to grant”, and the functions of an interim measure, accompanied
with a non-exhaustive list of measures under Article 114 of the CPC. Thus, it is
very detailed and gives us a general view on interim measures in civil proceeding.
Moreover, it assists scholars in having better understanding of the concept of
interim measure in commercial arbitration as scholars base on this provision to
give their own understanding.

47

Article 49.2 of the LCA
In Vietnamese “Trong quá trình giải quyết vụ án, đương sự, người đại diện hợp pháp của đương sự hoặc
cơ quan, tổ chức, cá nhân khởi kiện vụ án quy định tại Điều 187 của Bộ luật này có quyền yêu cầu Tịa án
đang giải quyết vụ án đó áp dụng một hoặc nhiều biện pháp khẩn cấp tạm thời quy định tại Điều 114 của
Bộ luật này để tạm thời giải quyết yêu cầu cấp bách của đương sự, bảo vệ tính mạng, sức khỏe, tài sản, thu
thập chứng cứ, bảo vệ chứng cứ, bảo tồn tình trạng hiện có tránh gây thiệt hại không thể khắc phục được,
đảm bảo cho việc giải quyết vụ án hoặc việc thi hành án.”
48

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(ii) The scholars’ view on interim measures in civil procedure and commercial
arbitration
In additional to the current CPC, there are several scholars such as Pham Duy
Nghia 49 and Nguyen Thi Thu Thuy 50 who attempt to lay down their own
understanding on interim measures within civil procedure. 51 Some Vietnamese
prestigious law schools provide definition in this regard as “measures the courts
apply in its own accord under the law or in case of a request of a party in order to

temporarily relieve an emergency request of a party or to preserve evidence,
protect the current status, avoid irreparable harm or protect the award’s
enforceability”.52 One scholar understanding this as “a short and simple procedure
to immediately aid the authority to interfere and timely provide protection of
evidence, disputed assets or other security necessary for the enforcement of duty
during the course of dispute settlement”.53 These definitions concern not interim
measures in commercial arbitration but in civil procedure, and shall be deemed as
acceptable yet a little unclear.54
Regarding the scholar’s definition of interim measures in commercial arbitration,
Luong Thanh Quang in his master thesis 55 providing his own definition, as
follows:
Interim measures in commercial arbitration are measures applied by the
arbitral tribunal or the court in settling a civil or commercial dispute.
49

Pham Duy Nghia (2010), “Interim measures in commercial arbitration”, Journal of Legislative Research,
Issue no. 23/2010, pp 77-79 [In Vietnamese: Phạm Duy Nghĩa (2010), “Biện pháp khẩn cấp tạm thời trong
tố tụng trọng tài”, Tạp chí Nghiên cứu lập pháp, Số 23/2010, tr. 77-79]
50
Nguyen Thi Thu Thuy (2016), “Perfecting the procedure to apply interim measures in current
Vietnamese commercial arbitration”, States and Legal Journal, pp.59-64 [In Vietnamese: Nguyễn Thị Thu
Thủy (2014), “Hoàn thiên pháp luât về thủ tục áp dụng biện pháp khẩn cấp tạm thời trong giải quyết tranh
chấp thương mại ở Việt Nam hiện nay”, Tạp chí Nhà nước và Pháp luật, số 11/2014, tr.59-64]
51
All the follow understandings are given when the Civil Procedure Code 2004, amended in 2009 is in
effect.
52
Ho Chi Minh City University of Law (2012), Vietnamese Civil Procedures, p. 239-239 [In Vietnamese:
Trường Đại học Luật Thành phố Hồ Chí Minh (2012), Giáo trình Luật Tố tụng dân sự Việt Nam, tr. 238239] and Hanoi Law University (2008), Vietnamese Civil Procedures, p. 179 [In Vietnamese: Trường Đại
học luật Hà Nội (2008), Giáo trình Luật tố tụng dân sự Việt Nam, tr. 179]

53
Pham Duy Nghia (2010), supra (49), pp 77-79
54
Luong Thanh Quang (2012), Interim Measures in Vietnamese arbitral procedures, Master thesis, Ho
Chi Minh City University of Law, p. 24 [In Vietnamese: Lương Thanh Quang (2012), Biện pháp khẩn cấp
tạm thời trong tố tụng trọng tài Việt Nam, Luận văn thạc sỹ, Trường Đại học Luật Thành phố Hồ Chí
Minh, tr. 24]
55
Ibid.

16


They can be applied in the rendering of the award to relieve the party’s
emergency request in order to preserve assets, preserve evidence, protect
the award’s enforceability after the claim was accepted to resolve; or may
be separately applied from the dispute to relieve the emergency request of
the party, even before the court accepted to resolve the claim in case there
is legitimate claim — this does not apply in commercial arbitration.
(iii) For the above analysis, the author concludes that, within the context of
Vietnam commercial arbitration, interim measures are temporary emergency
procedural measures applied by the tribunal or the court at a request of a party
before rendering a final arbitral award in order temporarily relieve an
emergency request of a party, to protect lives, health, property, to collect and
preserve evidence, to preserve the current status and avoid irreparable harm, to
protect the arbitral process or the award’s enforceability. This definition is for
reference and is derived from the regulation on interim measure in the CPC, taken
into account all other scholars’ writings. And to propose for legislation
amendment, the provision under Article 17.2 of the MAL is recommended and
shall be included in the conclusion of this chapter.

b. The form of interim measures under Vietnamese commercial arbitration
Interim measures under Vietnamese commercial arbitration take form of a
procedural order 56 and share two common features as interim measures in
international commercial, “temporality” and “urgency”. “Temporality” is
reflected through the fact that under the LCA, the order is merely procedural, 57
may be reviewed and altered at any time and, in any event, is subject to the
tribunal’s adjudication. 58 Although the Vietnamese term suggests the nature of
urgency, meaning the interim measures shall be applied immediately or at least,
as soon as possible, in reality, this remains unclear under the Articles 48, 49 and
50 of the LCA. Article 50 of the CLA requires the requesting party to prove the
“necessity. However, whether proving this element includes demonstrating this
feature of “urgency” is unclear and shall be explained in Section 2.4.2.
56

Article 50.4 of the LCA provided the tribunal shall issue an order after the requesting party has satisfied
the requirements under the LCA
57
Article 3.9 of the LCA
58
Article 51 of the LCA

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1.2.

Functions of Interim Measures

In order to clarify the concept of interim measures, the thesis shall include the
analysis on their functions. This section shall (i) lay down the common functions

of interim measures under international commercial arbitration, (ii) analyze the
regulation of Vietnamese commercial arbitration, and (iii) suggest some
improvement on the current Vietnamese arbitration legislation.
1.2.1. Common

functions

of

interim

measures

under

international

commercial arbitration
As interim measures are tools for the party to seek for immediate and temporary
protection of rights or property when a decision on the merits of the dispute
remains pending, 59 these measures widely vary according to the arbitration
agreement, the parties’ needs and the complexity of the dispute.60 Besides these
factors, when applying a measure, the law of the seat of arbitration shall be taken
into account. There are some cases where the national legislation on arbitration
only allows arbitrator the power to grant a number of applicable interim measures,
some measures can only be applied by the national court. For example, in France
and Italy, the law only empowers the court to grant conservatory attachment,61 the
arbitration regulation of Egypt only provides certain interim measures to be
applied in commercial arbitration.62
Since the applicable interim measures depend on the arbitration agreement and

the circumstances of the dispute, the arbitration laws and rules usually grant the
arbitral tribunal the discretion to apply any measure deemed necessary to protect
parties’ rights.63 The variety of measures between nations makes it hard to pin
point what common functions an interim measure serves. Therefore, the MAL, as
an effort to harmonize international arbitration and is adopted by many

59

Marianne Roth (2012), supra (3), p. 425-435
Grégoire Marchac (1999), supra (38), pp. 123-139
61
Article 1468 French Code of Civil Procedure, Article 818 Italian Code of Civil Procedure
62
Wael Shalaan (2013), supra (7), pp. 5-7
63
Article 28 ICC Rules; Article 17 MAL; Article 47 ICSID Convention; Article 39 ICSID Arbitration
Rules; SCC Rule Article 37; English Arbitration Act 1996; Section 1041 German Arbitration Law 1998;
Article 24.1 Egyptian Arbitration Law 27 of 1994; Rule 35 Scotland Arbitration Act 2010
60

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