Like some other countries, the provisions of the Commercial Arbitration Law, the Civil Procedure Code and the current implementing guidelines are in favor of arbitration by limiting and clearly defining the extent to which the Court participates in national and international commercial arbitration. One of the areas where Vietnamese courts participate in commercial arbitration is assisting in summoning witnesses. To provide information on this issue, we provide the following analysis:

Legal basis

• Article 47 Law on Commercial Arbitration 2010
• Article 11 Resolution 01/2014/NQ-HDTP guiding the implementation of the Commercial Arbitration Law promulgated by the Council of Judges of the Supreme People’s Court.
• Article 414.6 Civil Procedure Code 2015

Regulation

According to article 414 of Civil Procedure Code 2015 regarding civil matters relating to Vietnamese commercial arbitration activities that fall under the jurisdiction of the court:

“1. Appointment or change of arbitrators;

2. Application, change or cancellation of provisional emergency measures.
3. Annulment of arbitral award.
4. Resolution of complaints against decisions of the arbitral tribunal about invalid arbitration agreements, inexecutable arbitration agreements or jurisdiction of the arbitral tribunal.
5. Collection of evidence.
6. Summoning witnesses.
7. Registration of arbitral awards.
8. Other civil matters prescribed by the legislation on Vietnamese commercial arbitration”.

Accordingly, one of the areas Vietnamese courts are allowed to participate in Vietnamese commercial arbitration is summoning of witnesses.

At the request of one party or all parties and when necessary, the arbitration council may request witnesses to appear at meetings to settle the dispute. Witness expenses shall be borne by the requester for such summon or allocated by the arbitration council. If a witness, though having been properly summoned by the arbitration council, fails to attend the meeting without a plausible reason and his/her absence obstructs the dispute settlement, the arbitration council shall request in writing the competent court to decide to summon the witness to attend the arbitration council’s meeting. 

According to the provisions of Article 47.2 of LTTTM and Article 11.5 of Resolution no. 01/2014, the documents that the arbitral tribunal needs to send to the Court for the Court to summon witnesses include:

The request for summoning the witness to attend the arbitration council’s meeting must clearly indicate:

• The circumstances of the dispute; 
• Name and address of the witness; 
• Reason for summoning; and 
• Time and place for the witness to attend the meeting.

Enclosed with 

• The arbitration agreement, 
• Petition, 
• Relevant documents, 
• Documents and evidence proving that the witnesses were summoned legitimately but failed to attend the meeting, and that their absence obstructed the dispute settlement.

Competent courts shall handle requests to summon witnesses according to the following process:

• Within 7 working days after receiving the arbitration council’s written request to summon the witness, the president of the competent court shall assign a judge to consider and deal with such request. 
• Within 5 working days after being assigned, such a judge shall issue a decision to summon the witness.
• The court shall immediately send this decision to the arbitration council, the witness, and concurrently lo the same-level procuracy for the latter to perform its functions and tasks under law.

A witness-summoning decision must clearly indicate:

• the name of the arbitration council requesting such summoning; 
• circumstances of the dispute; 
• name and address of the witness; and 
• time and place for the witness to attend the meeting.

Together with the submission of documents and evidence on request, the party that makes the request for collection of evidence or summons of witnesses must pay fees and costs thereof. 

In case the arbitral tribunal requests the court to collect evidence or summon witnesses, the fees and costs shall be paid by the party that makes the request via the arbitral tribunal.

Above are some of our company’s analyses on this issue. If you need more detailed advice and answers as well as how to access this service, please contact directly the Deputy Director of Sales: Lawyer Nhat Nam via hotline: 0912.35.65.75, 0912.35.53.53 or call the toll free legal consultation hotline 1900.6575 or send a service request via email: lienheluathongbang@gmail.com

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