THE INTERPRETATION AND APPLICATION OF THE NEW YORK CONVENTION 1958 FOR RECOGNITION AND ENFORCEMENT OF FOREIGN ARBITRAL AWARDS IN VIETNAM

JOURNAL OF CRITICAL REVIEWS
ISSN- 2394-5125

VOL 7, ISSUE 05, 2020

THE INTERPRETATION AND APPLICATION OF THE
NEW YORK CONVENTION 1958 FOR RECOGNITION
AND ENFORCEMENT OF FOREIGN ARBITRAL
AWARDS IN VIETNAM
1

Ho Ngoc Hien, 2Nguyen Thi Thu Trang

1

Vice Dean of Law Department of the Graduate Academy of Social Science
Phd Candidate at the Graduate Academy of Social Science and Counsel at Dzungsrt & Associates LLC

2

ABSTRACT:
The recognition and enforcement of foreign arbitral awards in Vietnam is still a concern to foreign award
debtors because of the inconsistency in interpretation and application of the New York Convention and the tendency
to favour local parties of Vietnamese courts. This article aims at examining the differences in between Vietnamese
laws and the New York Convention and addressing some outstanding practical issues involving the implementation
of the New York Convention in Vietnam.
Key words: arbitration, arbitral award, New York Convention, Vietnam, recognition and enforcement
1. INTRODUCTION
The 2020 marks 25 years as from the time that Vietnam has acceded to the United Nations Convention on the
Recognition and Enforcement of Foreign Arbitral (“the New York Convention”), which has been described as
the most important and successful United Nations treaty in the area of international trade law with more than 160

members. The Convention was designed to “facilitate the enforcement of foreign arbitral awards” (ECOSOC, 1985)
and allow national courts to develop durable, effective means for enforcing international arbitration agreements and
awards (Born, 2018). However, after 25 years, Vietnam has been regarded as a jurisdiction where it is difficult to
enforce foreign arbitral awards (Reyes and Gu, 2018). Therefore, the issue of recognition and enforcement of
foreign arbitral awards in Vietnam is now becoming one of the most concerns of many domestic and foreign
enterprises.
So, what are the reasons for such problem? How the New York Convention provisions were adopted in
Vietnam ? How it works in practice? Are there any notable issues with regards to the recognition and enforcement in
Vietnam? This article aims at clarifying these questions. Accordingly, the authors want to bring a comparative view
of the recognition and enforcement of foreign arbitral awards in Vietnam, the most concerned issues, and the best
way forward. To be specific, the first part of this article will examine the differences between Vietnamese laws and
the New York Convention, while the second part will address how the New York Convention is interpreted and
applied by Vietnamese courts when considering the application for recognition and enforcement in practice. Lastly,
the authors also proposed some solutions to improve the implementation of the New York Convention and to
increase the number of foreign arbitral awards could be enforced in Vietnam.
2. RESULTS AND DISCUSSION
2.1. A COMPARISON OF THE RECOGNITION AND ENFORCEMENT REGIME UNDER
VIETNAMESE LAW AND THE NEW YORK CONVENTION
The Convention was first implemented in Vietnam through the 1995 Ordinance on Recognition and
Enforcement of Foreign Arbitral Awards which has been replaced by provisions of the 2004 Civil Procedural Code,
as amended in 2011 (“the 2011 CPC”). As of 1 July 2016, the 2011 CPC shall be expired and be replaced by the
new Civil Procedure Code dated 25 November 2015 (“the 2015 CPC”). Besides the 2015 CPC, the Convention was
also implemented in Vietnam through the 2008 Law on Enforcement of Civil Judgment, as amended in 2014 (“the
LECJ”). However, there are notable deviations between the Vietnamese laws and the New York Convention as
being elaborated below.

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

The scope of application of the New York Convention in Vietnam
Article I.1 of New York Convention clarifies the scope of application of the Convention, which includes
“arbitral awards made in the territory of a state other than the State where the recognition and enforcement of such
awards are sought and arising out of differences between persons, whether physical or legal. It shall also apply to
arbitral awards not considered as domestic award in the State where their recognition and enforcement are
sought”. By making the reciprocity and commercial reservations, Vietnam has also restricted the scope of
application of the New York Convention Accordingly, to be considered for recognition and enforcement in Vietnam,
the arbitral award must satisfy three criteria: (i) it is considered as “an arbitral award”; (ii) it must be “a foreign
award” and (iii) it arises from the commercial disputes.
With regard to the first criterion, the New York Convention does not define what would be considered as
an “arbitral awards”. This suggests that it is up to the courts of the contracting states where the recognition and
enforcement is sought to determine when a decision can be characterized as an “arbitral award” under the New York
Convention (UNCITRAL Secretariat, 2016). In practice, it is widely accepted by member states’ courts that a partial
award, awards on jurisdiction, consented awards also revolves the disputes between parties in a final manner. As
such, they are enforceable under New York Convention. Some courts even have held that an interim or partial award
amounts to an “award” within the meaning of the Convention, if it finally determines at least part of the dispute
referred to arbitration (UNCITRAL Secretariat, 2016). However, Vietnamese law distinguishes between an arbitral
decision and an arbitral award. As provided in Article 3 of the Law on Commercial Arbitration (“the LCA”), only
decisions which settle the entire dispute and terminating the arbitral proceedings could be considered as “arbitral
awards”. Article 424.2 of the CPC 2015 also provides that foreign arbitral awards which shall be considered for
recognition and enforcement in Vietnam are final ones of the arbitral tribunal that resolve all the contents of the
dispute, finish the arbitral procedures and are effective. Accordingly, interim orders and partial awards are not
qualified as arbitral for recognition and enforcement under Vietnamese laws.
With regard to the territorial criterion, it is widely accepted that the nationality of an award is based on the

seat of arbitration i.e. where the award is rendered. However, pursuant to Art. 3 (12) of LCA, “foreign arbitral
award means an award rendered by foreign arbitration either inside or outside the territory of Vietnam in order to
resolve a dispute as agreed by the parties”. As such, in Vietnam, whether an arbitral award is considered as a
foreign award or not does not depend on the seat of the arbitration. Instead, it depends on the nationality of the
arbitral institution or the arbitral tribunal. Accordingly, an arbitration seats in Vietnam but it is administered by an
arbitral institution establish outside of Vietnam, e.g. International Chamber of Commerce (ICC) or Singapore
International Arbitration Centre (SIAC) shall still not be considered as a Vietnamese award. In other words, it is
considered as a “non-domestic” arbitration in Vietnam.
Regarding the “commercial” criterion, as provided by the Commercial Law 2005 of Vietnam, “commercial
activities” are defined as activities for profit-making purposes including sale and purchase of goods, services,
investment, trade promotion, etc. It is noted that pursuant to Article 2 of the LCA, it remains unclear about whether
non-contractual claims can be arbitrable under the law of Vietnam. Arguably, as long as one of the disputing parties
is engaged in commercial activities, non-contractual claims can be arbitrable. However, reportedly there has not
been any non-contractual claim resolved by arbitration in Vietnam to shed light on this matter. In our experience, so
far only one dispute arising from a settlement agreement in connection to a collision in Vietnamese waters has been
settled by arbitration. Besides, it is widely accepted that a dispute may be considered as non-arbitral if it falls within
the exclusive jurisdiction of Vietnamese courts under Article 470 of the Civil Procedure Code, which including
among others, civil lawsuits involving rights to properties being immovables in the Vietnamese territory. Clearly,
the above provision has limited the scope of application of the New York Convention in Vietnam.

The burden of proof
Pursuant to Article V of the New York Convention and Article 459 of the CPC 2015, the award debtor
shall bear the burden of proof that the arbitral award falls within one of the grounds for refusal of recognition and
enforcement. Whereas, the award creditor only needs to submit an authenticated original or a certified copy of the
arbitral award and the arbitration agreement when applying for recognition and enforcement. This provision was
incorporated in Article 453 of the CPC 2015.
It should be noted in the past, since the previous version of the CPC, being the CPC 2005, fails to clarify
the burden of proof of the party opposing the enforcement of the award, some courts still wrongly requested the
award creditors to provide documents showing that the award does not fall within one of the grounds for refusal of
recognition and enforcement. Such situation has been improved as from the CPC 2015 came into effect. Article

459.1 of the CPC 2015 clearly states that “The Court shall not recognize a foreign arbitrator’s award when
deeming that the evidences provided by the judgment debtors to the Court for appealing against the application for
recognition are well-grounded”. However, in practice, Vietnamese award debtors frequently request the court to

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impose the burden of proof on award creditors as part of the application for recognition and enforcement. The courts
have rarely ruled on this issue and in fact, however, judges may be eager to require award creditors to furnish
documents to establish that their applications have not fallen into one of the exceptions for recognition and
enforcement. For example, when considering a Swiss arbitral award in 2018, the High People’ Court in Ho Chi
Minh City held that:
If the award debtor does not acknowledge that the notice has been received, they have to prove the failure
for receiving the arbitral notices. However, there is no evidence to determine that [the award debtor] has
been duly informed of the above. At the appellate hearing, the lawyer of the award debtor said that in
practice, it is rare that the award debtor proves that they have not received the notices. Instead, the award
creditor has to bear to the burden of proof of the proper services of papers and documents, to show that they
have notified the award debtor”.
The Court accepted this argument and denied recognizing and enforcing such award. Such decision of the
court is clearly inconsistent with the provision of Article IV and V of the New York Convention and the provision of
the CPC 2015.

The grounds for refusal of recognition and enforcement of foreign arbitral awards
Article 459 Civil Procedure Code 2015 sets out nine (09) grounds to refuse recognition of foreign arbitral
awards which resemble Article V New York Convention. However, the violation of “public policy” under Article

V(2)(b) of New York Convention is replaced by the violation of “fundamental principles of Vietnamese law”. The
violation of the fundamental principles of Vietnamese laws is also referred as a ground for setting aside against
domestic awards. Therefore, it is essential to examine the interpretation of this notion in the annulment of
Vietnamese awards and in the recognition and enforcement of foreign arbitral awards.
In the context of setting aside against Vietnamese arbitral awards, pursuant to Article 6 of Resolution No
01/2014/NQ-HDTP of the Supreme People’s Court of Vietnam (Resolution 01/2014), the fundamental principles
are defined as “basic principles on conduct, whose effects are most overriding in respect of the development and
implementation of Vietnamese law” and “the arbitral award is only annulled by the court if the court recognizes the
arbitral award seriously infringe upon the interest of the State, the lawful rights and interests of either party or third
party”. To clarify this notion, the Supreme People’s Court listed some examples including the principle of freedom
and freewill to reach an agreement in commercial activities as provided in Article 11 of the Commercial Law and
Article 7 of the Civil Code, coercion, fraud, threat or bribery, etc. However, the above interpretation is still too broad
and unclear in the view of local judges.
Whereas, there is no official guidance on how to apply this ground in the context of refusal for recognition
and enforcement of foreign arbitral awards. It is Vietnamese judges who have full discretion to interpret this term
and therefore, its application is considered on case by case basis only. In the past, the Vietnamese Courts used to
rely on this ground to refuse to recognize and enforce foreign arbitral awards. As such, there was an opinion that a
mere breach of Vietnamese law by itself may have amounted to a violation of fundamental principles of Vietnamese
law (Garnett and Nguyen, 2006). Nevertheless, the interpretation of this term under the Resolution 01/2014 helped
to clarify the application of this ground. Also, it is arguable that the same interpretation of the “fundamental
principles of Vietnamese laws” in the context of setting aside Vietnamese arbitral awards under the Resolution
01/2014 should also be applied by the court when considering the recognition and enforcement of foreign arbitral
awards to ensure the unification of this notion under Vietnamese laws as well as the “national treatment” between
Vietnamese awards and foreign awards as required by the New York Convention. Still, as mentioned above, the
guidance under the Resolution 01/2014 is too broad and unclear.
Recently, the Supreme People’s Court is drafting a new Resolution guiding provisions on recognition and
enforcement of foreign arbitral awards (the Draft Resolution). Under the Draft Resolution, the circumstances
where the fundamental principle of Vietnamese laws is deemed as being violated are clarified as follows:
(i)
The recognition of such awards violates sovereignty, national security, social order and safety,

social morality, and community health;
(ii)
The foreign arbitral award is declared on the basis of coercion, deception, threat, or bribery; or
(iii)
The foreign arbitral award does not record the voluntary agreement of the involved parties on the
method of dispute settlement.
Accordingly, it is expected to rectify the misunderstanding and incorrect application of the Vietnamese
courts in this matter and thus, decrease the risk that the foreign arbitral awards are refused to be enforced in Vietnam
on this ground. Unfortunately, since the Draft Resolution has not come into force, the guidance thereunder has not
bound the Vietnamese Courts yet.

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2.2. THE INTERPRETATION AND APPLICATION OF THE NEW YORK CONVENTION IN PRACTICE
Upon the recent Report of the Ministry of Justice of Vietnam, from 01 January 2012 to 30 September 2019,
only 39 out of 84 foreign awards (accounting for 46.4%) were recognized and enforced in Vietnam (Ministry of
Justice, 2020). After the CPC 2015 came into force, there are 23 application for recognition and enforcement of
foreign award were enrolled, but only 11 applications were accepted (accounting for 47.8%). The percentage of
arbitral awards were rejected to be recognized and enforced in Vietnam has been remarkably decrease from 46% to
21% after the CPC 2015 took effect. The most common ground invoked by Vietnamese Court to deny recognizing
and enforcing foreign awards relate to the incapacity of the person signed the arbitration agreement, the improper
service of documents, the violation of fundamental principles of Vietnamese laws (Ministry of Justice, 2020).
Even though the enforcement and recognition of foreign arbitral awards in Vietnam has improved after the
CPC 2015 took effect, the number of awards being recognized and enforced is still low compared to other countries

such as Singapore, Hong Kong, etc. Accordingly, it appears that in practice, the Vietnamese Court have not adopted
the pro-enforcement approach under the New York Convention, which is against the intention as well as the
commitment of Vietnam at the time of ratifying the Convention. To be specific, the recognition and enforcement of
foreign arbitral awards in Vietnam still have the following problems:

Prolonging the procedure for recognition and enforcement
Article 451.1 of The CPC provides that the time limit for application for recognition of foreign arbitral
award
in
Vietnam
is
3
years
starting
from
the
date
the
foreign
arbitral
award takes effect. The time needed for recognition at first-instance stage as stipulated by the CPC is around 06
months. To be specific, in accordance with Art. 455 of the CPC, within 05 working days as from the date of
receiving the application dossier, the courts must accept the files and notify the award debtors as well as a Public
Prosecutor of the same level. Within 02 to 04 months as from the date of accepting the requests, the competent
courts shall decide whether to open hearing sessions to consider the petitions, temporarily suspend or suspend the
consideration of the application for recognition. As stipulated by the CPC, the Courts must open a hearing to
consider the requests within 20 days as from the date of issuing the decision to open such hearing. However, in
practice, the actual time of the first instance level would expect to be from 06 to 08 months or even up to a year
depending on the complexity of the case as well as the schedule of the judge handling the case. Furthermore, the
first instance decision of the court could be appealed, and the Appeal Decision could also be revisited under

cassation review procedure. Therefore, the total time to obtain the final decision on recognition and enforcement of a
foreign arbitral award in Vietnam could take years.

Wrongful application of grounds for refusal of recognition and enforcement
It should be noted that after more than 20 years as from the time Vietnam ratified the New York
Convention, Vietnam has not had any detailed guidance on how to interpret and apply the grounds for refusal of
recognition and enforcement of foreign arbitral awards. As the result, the courts also face the difficulties in
interpreting and applying the relevant laws and regulations to settle the case, especially when the issue should be
considered under foreign laws, for example, the law governing the validity of the arbitration agreement, the law
governing the capacity of the foreign parties, etc.
In particular, the Arbitral Award might also face the risk of rejection for recognition and enforcement if the
Vietnamese Court somehow finds that the parties’ representative does not have capacity to sign the contract and
arbitration agreement under the law applicable to each party contract under Article 459.1(a) of CPC 2015 and
Article V.1(a) of New York Convention. However, in practice, the Vietnamese Court often imposes their
understanding on the signatory capacity of Vietnamese party in accordance with the laws of Vietnam to explain the
signatory capacity of the award creditor which is regulated in accordance with the foreign law, not Vietnamese law.
For example, in Decision no. 117/2014/QD-PT dated 07/08/2014 of the Appellate Court of the Supreme People’
Court in Hanoi, the Court used to rely on the Certificate of Business Registration to conclude that the certificate did
not indicate the name of the person signed the contract and the arbitration agreement on behalf of the award creditor,
such person did not have capacity to do so. Even though the award debtor provided the Letter from its representative
directors and the Affidavit of an English qualified lawyers confirming that under English law as the applicable law,
such person has full capacity to conclude the contract, the award was still be rejected for recognition and
enforcement. The decision of Court disregarded the law governing the capacity of the award creditor and was only
based on its own interpretations of the Certificate of Business Registration.
Similarly, another common ground to object the recognition and enforcement of foreign arbitral awards
under Article 459.1(c) of CPC 2015 and Article V.1(b) of New York Convention. This ground is often raised by the
award debtor especially in ex-parte arbitration proceedings where the respondent does not participate in the
arbitration, but they were still notified of the proceedings. The award creditor is thus, often required to provide the
court with evidence proving that the award debtor has actually received these notices of the arbitral tribunal e.g. the

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receipt, minutes of delivery, etc., rather than evidence of serving, e.g. the express waybill of the couriers. For
example, in a Decision in 2016, the People’ Court of Hanoi rejected to recognize a GAFTA award because “The
delivery of documents from GAFTA to [the award debtor] is in compliance with the New York Convention.
However, pursuant to Article 176 of CPC 2015 regarding the service of documents and notice via electronic means,
there is no ground to determine that [the award debtor] has received the documents, including the arbitral awards
from GAFTA. Moreover, the implementation of this provision has not been guided by the Supreme People’s Court of
Vietnam”. As such, instead of considering the validity of service of document under the law of the seat i.e. English
Arbitration Act 1996 and the GAFTA Arbitration Rules, the Hanoi Court relied on the requirement for service of
document under the CPC 2015, which is designed for the court procedure.

No particular explanation on the fundamental principles of Vietnamese law:
As mentioned above, the violation of fundamental principles of Vietnamese law is one of the grounds for
refusal of recognition and enforcement of foreign arbitral awards. It could be said that the notion of “the
fundamental principles of Vietnamese law” is the local adaption of “the public policy” ground under Article V of the
New York Convention and is based on domestic rather than international standards. However, currently, there is no
legal document of Vietnam particularly listing which are the fundamental principles of Vietnamese law in the
recognition context. Therefore, the local court has been quite arbitrary in interpreting and applying this ground. In
practice, the Vietnamese courts used to invoke this ground to review the tribunal’s ruling on the merits of the case.
To be specific, in 2011, the Appellate Court in Hanoi upheld the first instance decision and turned down the
request for recognition and enforcement of an arbitral award of the Grain and Feed Trade Association (“GAFTA”)
because the award was considered as contrary to the fundamental principles of Vietnamese laws. The Court
reasoned that, the damages awarded to the award creditor were not actual and direct. The Court also found that the

award debtor should not be held liable for damages as its failure to open L/C had been due to force majeure. The
GAFTA Award, therefore, was contrary to the principles concerning damages under Vietnamese commercial law.
Recent years, the courts have become more sophisticated. Instead of picking up a certain provision of Vietnamese
law and treating it as a fundamental principle of Vietnamese law, they have shown a tendency to link a substantive
issue in the award to a more well-recognized “fundamental principle of Vietnamese law”. Still, it is concerned that a
decision on substantive issues as mentioned above could still lead to a violation of principle of impartiality and
independence in arbitration from the local judges’ view.

Courts’ review on the merits of the foreign arbitral awards
In principle, as prescribed by Article 458(4) of the CPC, the Vietnamese Courts, while considering a
foreign arbitral award for recognition and enforcement, are not allowed to re-visit the merit of the case. In theory,
they can only examine and compare the award and the application dossiers with the relevant provisions of the CPC,
other Vietnamese laws and international treaties which Vietnam has signed or acceded to, for making a ruling.
Nevertheless, in fact, some local judges have a tendency to decide based on their assessment, in light of Vietnamese
law, of the merits of the case, at least on aspects relating to the legal capacity and authority of the contracting parties
and the forms of the involved contracts. In 2014, the Appellate Court of Ho Chi Minh City refused to recognize and
enforce an award of the International Cotton Association on the ground that the basis for calculation of damages
under the award is inconsistent with Vietnamese Law on Commerce even when the governing law is English law.
The Court noted that the tribunal based on estimated damages but not actual damages and that the award creditor
failed to mitigate damages. The decision on the damages of the tribunal is clearly an substantive issue that should
not be revisited by Vietnamese courts. Nevertheless, the court relied on the vagueness of “the fundamental
principles of Vietnamese law” to review the merits of the case.
Furthermore, under Article 459(1)(d) of the CPC which is an adoption of Article V(1)(c) of New York
Convention, the court shall refuse to recognize a foreign arbitral award if the award deals with disputes which are
not requested by the parties or exceed the request of the parties. If the decisions on matters requested by the parties
can be separated from those not requested, that part of the award which contains decisions on matters requested by
the parties may still be recognized. However, in practice, there is no reported case where the Vietnamese courts only
refused to recognize and enforce a part of foreign arbitral awards. This may be one of the reasons why the number of
foreign awards being recognized and enforced in Vietnam is still low.
3. RECOMMENDATIONS AND CONCLUSION

After more than 20 years being a member of the New York Convention, Vietnam has improved its legal regime for
the recognition and enforcement of foreign arbitral awards in Vietnam. It is noteworthy that the CPC 2015 and the
Draft resolution has had many amendments and clarification which reflect a more pro-enforcement approach of the
courts and Vietnamese Government. In fact, many foreign arbitral awards have been recognized and enforced by

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Vietnamese courts where the New York Convention and the CPC 2015 were correctly applied the provisions of to
protect the legitimate rights of the parties.
However, besides these above achievements, Vietnamese is still considered as an arbitration-unfriendly
country, where the enforceability of the arbitral awards is uncertain. Whereas, it should be noted that the refusal of a
National Court to recognize and enforce a foreign arbitral award does not invalidate the arbitration award in the
remaining 157 member states of the New York Convention, but the consequences of refusing to recognize and
enforce the foreign arbitral awards based on unwarranted and inconsistent interpretation and application of the New
York Convention will cause many direct and indirect damages for the governments, the economies, and the
arbitration development therein. In fact, wrongful refusal to enforce foreign arbitral awards could become the
ground for a contract-based arbitration escalated into a treaty-based arbitration against Vietnamese government
(Nguyen and Nguyen, 2018). The authors are of the view that it is needed short and mid term-solutions to recur such
situation, and to do so, it requires the changes in both legislation and the court’s attitude.
First, even though the substantial contents of the New York Convention have been incorporated in the CPC
2015 of Vietnam, there are still some notable discrepancies which lead to the inconsistency of the court when
considering the recognition and enforcement of foreign arbitral awards. As a result, it is necessary for the
Vietnamese government to review and complete all legislative documents involving the recognition and
enforcement of Vietnamese laws, including but not limited to the CPC 2015, the Law on Commercial Arbitration,

the Resolution 01/2014, etc., to be in compliance with the provision and purpose of the New York Convention.
Especially, the determination of “foreign arbitral award” should be based on the only criterion i.e. seat of arbitration
rather than the nationality of the arbitration center. Further, the fundamental principles of Vietnamese laws should
be replaced by the public policy or at least, should be interpreted in line with the notion of “public policy” under the
New York Convention. With regard to other grounds for denial of recognition and enforcement, the Supreme
People’s Court and the Ministry of Justice should cooperate and issue a Resolution or detailed guidance on the
interpretation of these grounds to avoid the subjective interpretation and arbitrary application of the local courts in
this matter.
Secondly, the way in which some Vietnamese courts refused of recognition and enforcement of foreign
arbitral awards are far from being in line with the New York Convention 1958. The reasons for this problem are not
only the lack of detailed guidance but also the negative attitude of the local courts toward foreign arbitration. The
court’s awareness regarding the relations between the court and the arbitration, the judicial support of the court
toward the arbitration have not been received much attention. The Supreme People’ Court and the Ministry of
Justice should organize more workshops to enhance the knowledge and raise the awareness of the local judges in
this matter. It is also suggested to enhance the international cooperation with other arbitration-friendly countries
such as Hong Kong, Singapore or France and invite their experts to train the judges, lawyers and law students to
foster the next generation equipped with knowledge, skills and experiences in this matter.
With the above short-term resolutions, it is expected that the unreasonable and inconsistent interpretation
and application of the New York Convention in Vietnam will be evaded soon. Nevertheless, it undoubtedly will take
time to see the achievement.
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Nguyen Manh Dzung and Nguyen Thi Thu Trang (2018), International Investment Dispute Resolution in Vietnam:
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