TRỌNG TÀI THƯƠNG MẠI QUỐC TẾ

International Commercial
Arbitration
Nguyen Manh Dzung, MCIArb
Managing Partner - Dzungsrt & Associates
Vice President - Pacific International Arbitration Center (PIAC)

Hà Nội - 03/11/2010
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1


Dispute Resolution
Main processes:
1. Negotiation
2. Mediation
3. Arbitration
4. Litigation

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2


Dispute Resolution
Negotiation

Mediation

International Commercial Arbitration
Litigation

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3


Dispute Resolution
2. Arbitration is:
2.1 based in contract
2.2 alternative to litigation
2.3 not (strictly) ADR

3.
4.
5.
6.

ADR – ‘alternative dispute resolution’
‘Alternative’ to ‘Adjudication’
‘Adjudication’ – third party determination
ADR processes – party agreement
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4


What is arbitration?
• private and non-national system of dispute
resolution
• the fair resolution of disputes by an impartial

tribunal
• without unnecessary delay or expense parties are
relatively free to agree how their disputes are
resolved
• there should be minimal court intervention
• binding enforceable award

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5


What arbitration is not
IT IS NOT
•
•
•
•

a national court procedure
Mediation
expert determination
DO YOU WANT ONE OF THESE PROCEDURES?
• Then you will have to make an express agreement to
that effect

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6

Why arbitration?
Advantages
• ALTERNATIVE TO NATIONAL COURTS?
• Suspicion/mistrust of national courts
• No party wish to submit to other party’s court
• FINALITY
• No appeal
• ENFORCEABILITY
• FLEXIBILITY
Court procedures are rigid/fixed
Procedure fixed for each arbitration
Evidence/Witnesses/Discovery/production of documents
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7


Why arbitration?
Advantages
• PARTY AUTONOMY
• NEUTRALITY
 No national character
 Truly non-national/international
• BALANCING TRIBUNAL
 Various expertise
• CHOICE OF ARBITRATOR
 Selecting arbitrator with geographic and relevant
experience to the dispute
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8


Other Why arbitration?
Alleged Advantages
• CONFIDENTIALITY AND PRIVACY
 Who says so?
 Enforceability?

• SPEED
 Average duration – 18 months

• COST
 Not inexpensive but cost can be calculated
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9


What is ad hoc arbitration

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10


Model Arbitration Clause
“Any dispute, controversy or claim arising out of or
relating to this contract, or the breach, termination

or invalidity thereof, shall be settled by arbitration in
accordance with the Uncitral arbitration Rules as at
present in force.
The appointing authority shall be ICC;
The number of arbitrators shall be three;
The place of arbitration shall be Singapore;
The language to be used in the arbitral proceedings
shall be English”
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11


Ad hoc arbitration
A specially designed framework to organise and conduct
arbitration
- Parties agree to framework, including for selection of
arbitrators and procedural rules
- Total party control without institutional structures or
management
- Particularly appropriate for disputes involving
governments
- Need for authority when difficulty arises
• appointing authority
• national courts
- UNCITRAL Arbitration Rules dedicated to ad hoc
arbitration
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12

What is institutional arbitration

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13


SIAC Model Clause
“Any dispute arising out of or in connection with this
contract, including any question regarding its
existence, validity or termination, shall be referred to
and finally resolved by arbitration in Singapore in
accordance with the Arbitration Rules of the
Singapore International Arbitration Centre ("SIAC
Rules") for the time being in force, which rules are
deemed to be incorporated by reference in this
clause.
The Tribunal shall consist of three (03) arbitrators to
be appointed by the Chairman of the SIAC.
The language of the arbitration shall be English”.
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14


Institutional arbitration
Administered by an institution set up specifically to
provide an arbitration service

Service may be specific or general
• Specialist arbitration service
• Arbitration activity in addition to other activity
• Arbitration is in support of particular professional
body or industry
Infrastructure helps in smooth running of arbitration
• Support of administrative staff
• Name –”cache” of institution
• Cost includes administrative and management
charges
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15


International Arbitration Institutions
• Asia Pacific Regional Arbitration Group ('APRAG') includes over 30
members: ./
• Singapore International Arbitration Center (SIAC):
/>• Hong Kong International Arbitration Center (HKIAC):
/>• China International Economic and Trade Arbitration Commission
(CIETAC): />• Japan Commercial Arbitration Association (JCAA):
/>• The ICC International Court of Arbitration:
/>• London Court of International Arbitration (LCIA): />• American Arbitration Association: />• International Center for Settlement of Investment Disputes (ICSID):
/>www.piac.com.vn

16


Vital Statistics

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17


Popular Venues
Preferred Arbitration Venues
160
140

137

120
100
Overall Score

74

80

63

57

63

Respondents

58

60
37

40

35

30

30
12

20

4

0
England

Switzerland

France

Other

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USA

Japan

18


Các tổ chức trọng tài Việt nam
1. Trung tâm trọng tài quốc tế Việt nam (VIAC) bên
cạnh Phòng thương mại và công nghiệp Việt nam
(VCCI) trụ sở chính ở Hà nội;
2. Trung tâm trọng tài kinh tế Hà nội
3. Trung tâm trọng tài kinh tế Thăng Long
4. Trung tâm trọng tài kinh tế Bắc Giang
5. Trung tâm trọng tài kinh tế Sài Gòn
6. Trung tâm trọng tài kinh tế Cần Thơ
7. Trung tâm trọng tài quốc tế Thái Bình Dương – PIAC
8. Trung tâm trọng tài kinh tế Viễn Đông?
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19


Types of arbitration
(Traditional) Commercial arbitration
• i.e. consensual (and binding)
Investment (treaty) arbitration
• Arbitration without privity
Transnational arbitration
• i.e. detached from the place where is held
Compulsory arbitration
• Exceptional

Consumer arbitration
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20


Meaning of “International”
1. UNCITRAL Model Law – Article 1(3)
An arbitration is international if:
(a) the parties have their place of business in different States; or
(b) one of the following places is situated outside the State in which the parties
have their place of business:
(i) the place of arbitration if determined in, or pursuant to, the arbitration
agreement;
(ii) any place where a substantial part of the obligations of the commercial
relationship is to be performed or the place with which the subject-matter
of the arbitration agreement relates to more than one country.
2. NOTE: New York Convention refers to awards made in the territory of a State
other than the State where recognition and enforcement are sought
3. Ordinance on Commercial Arbitration of Vietnam in 2003 (Article 2.4)
“Disputes involving foreign elements are those arising from commercial
activities with one participating party or all participating parties being
foreigners, foreign legal persons, or those with the bases for establishing,
changing or terminating disputed relationships arising abroad or with involved
properties situated abroad”

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21

Meaning of “Commercial”
UNCITRAL Model Law
 The term “commercial” should be given a wide interpretation so as to cover matters
arising from all relationships of a commercial nature, whether contractual or not.
 Relationships of a commercial nature include, but are not limited to, the following
transactions.
 Any trade transaction for the supply or exchange of goods or services; distribution
agreement; commercial representation or agency; factoring; leasing; construction
of works; consulting; engineering; licensing; investment; financing; banking;
insurance; exploitation agreement or concession; joint venture and other forms of
industrial or business co-operation; carriage of goods or passengers by air, sea, rail
or road.
Ordinance on Commercial Arbitration of Vietnam in 2003 (Article 2.3)
“Commercial activities means the performance of one or many trading acts by
business people or organizations, including goods purchase and sale, service
provision; distribution; trade representation and agency; consignment; renting and
lease; hire purchase; construction; consultancy; technology; licensing; investment;
financing; banking; insurance; exploration and exploitation; transport of goods and
passengers by air, sea, rail, land, and other commercial acts as prescribed by law”
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22


Acknowledgment
1. International & Comparative Commercial
Arbitration of School of International Arbitration,
Queen Mary University of London
2. International Commercial Arbitration of University

of Westminster

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23


Thank you for your attention !
Dzungsrt & Associates
Suite 901, HAREC building,
4A Lang Hạ str, Ba Đ ình Dist, Ha Noi.
Tel. (4) 3772 6970 / Fax. (4) 3772 6971
Email.
Web. www.dzungsrt.com

Pacific International Arbitration Center – PIAC
11A, Phan Ke Binh Str, Dist 1, Ho Chi Minh City
Tel. (8) 3911 8048/ Fax. (8) 3911 8049
Email.
Web. www.piac.com.vn – www.piac.vn