Ten-year of international standardization in arbitration

07/04/2021
 Mr. Pham Duy Nghia

VIAC Arbitrator

Lecturer at Fulbright University Vietnam

 

Mr. Doug Jones, a leading arbitrator in the international arbitration community, revealed to me his infatuation with the beautiful beach and Vietnamese delicacies after a seminar in Da Nang. He was also inspired by the confidence, assertiveness, competence and the ambition to improve domestic arbitrators to the same level as those working in the international sphere of young arbitrators and VIAC Secretaries.

He is a British, and from my modest understanding, in his hometown, judges, lawyers and arbitrators have intended the legal profession to be independent from the influence of kings and government since the beginning of time. Privatization, private ownership and privacy in his country are sacred, cherished and therefore not sinful and evil. In his culture, not only court’s adjudication is independent but private arbitrator's jurisdiction is also respected and enforced. Unsurprisingly, there is a long-standing tradition of arbitration in Britain.

For many generations, Vietnamese people have joined forces to establish a foundation for arbitration in our country, and most notably, that of Mr. Pham Quoc Anh, former Chairman of the Vietnam Lawyer Association. With his zealous endeavor to seek for sponsorship more than a decade ago, Mr. Pham Quoc Anh gave the Drafters of the Law on Commercial Arbitration an opportunity to learn from the best international arbitration experts, including those from UNCITRAL Model Law on Arbitration Committee, Britain, America and Singapore.

Introducing private jurisdiction into a country where public jurisdictions is still in embryo, is challenging. Interestingly, however, where there is demand, there will be supply. Vietnam, for the past few decades, has been an accelerating ship plunging into the smog of a market economy. Private companies sprung up. Foreign companies are also quickly looking for opportunities in a developing country with low production and environmental costs and a population of nearly a hundred million people with increasing incomes. Business risks arise and demand proper management. If there is a dispute, there must be a reliable body to adjudicate.

After the capitalists came standard form contracts, general standards (e.g. the FIDIC suite of contract), customs and practice of lawyers and consultants. When there is a dispute, people will consider whether to use Vietnamese judiciary, or other institutions, for example arbitration.

Interestingly, arbitration is also a service where the service users are the claimants. The parties can limit the issues that should be resolved by arbitrators, and those that should not be. They can also file a request and agree on the scope of evidence themselves, on issues that require expert opinion and witnesses, document production schedule and method and progress of arbitration proceeding. It turns out that when they file a request to the Secretariat, they can draw up an almost identical document to terms of reference (TOR) on which will be the basis of a fair award. Combining the contributions of the parties, the Arbitral Tribunal often issues a roadmap and overall requirements for proceedings and methods of resolution. Although the names are different (e.g. PO1), they are agreement between the arbitrator and parties using the service.

Drafters of the Law on Commercial Arbitration 2010 can rejoice, however, in my opinion, such practice is aware of, but cannot be subconsciously deposited. Legislators have just moved from socialist legislation to market-style rule of law. The Law on Commercial Arbitration 2010 was drafted with the following intended process: initiation of claim, attachment of evidence, consideration and acceptance by the Secretariat, fee payment, constitution of arbitral tribunal, verification, document production, hearing, award issuance, and probably annulment by the Court.

Over the past ten years, new demands and customs motivate arbitration to change rapidly. Following the step of foreign lawyers and consultants, a generation of talented Vietnamese commercial lawyers now provide the essential service to investors and business owners. More and more Vietnamese arbitrators are confidently and actively participating in arbitration proceeding at international arbitration centers. Accompanied by their appearance, new practice gradually transform arbitration into a service that protect fairness and justice for people and businesses.

Demand increased and became diversified, as did the number of arbitration institutions. Quality and frequency of arbitration activities have grown rapidly, along with skillful and competent staffs that provide increasingly professional and internationally standardized arbitration services. This much is truly an outstanding accomplishment./.

*This research paper is made to order by the Science Council under Vietnam International Arbitration Centre (VIAC) and only reflects the author’s opinion. VIAC uploads this paper on its official website with the aim of providing valuable information for the reference of the Arbitrators, the parties, other participants in the arbitral proceedings pursuant to VIAC’s Rules of Arbitration, as well as those who are interested in arbitration. Any reference and citation to this research made by a third party shall not be valid or recognized by VIAC. VIAC shall not explain or answer any requests or inquiries related to this research from a third party.

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