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 the collection of evidence. To provide information on this issue, we provide the following analysis:

Legal basis

• Article 46 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 414.5 Civil Procedure Code 2015

Regualtion

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 the Collection of evidence.

The law on commercial arbitration stipulates two basic principles in evidence collection. On the one hand, The parties have the right and obligation to provide evidence to the arbitration council to prove matters related to their dispute. On the other hand, the arbitral tribunal also has the power to: 

•  At the request of one party or all parties, the arbitration council may request witnesses to provide information and documents relating to the dispute settlement (Article 46.2 Law on Commercial Arbitration 2010);
• The arbitration council may itself or at the request of one party or all parties request an appraisal and valuation of assets in the dispute as a basis for settling the dispute. Appraisal and valuation expenses shall be advanced by the appraisal and valuation requester or allocated by the arbitration council (Article 46.3 Law on Commercial Arbitration 2010);
• The arbitration council may itself or at the request of one party or all parties consult experts. Expert expenses shall be advanced by the consultation requester or allocated by the arbitration council.

If the arbitration council, one party or all parties have applied necessary measures to collect evidence but cannot itself/themselves collect evidence, they may propose in writing the competent court to request agencies, organizations and individuals to provide legible, audible or visible documents or other objects related to the dispute.

According to the provisions of Article 46.5 of LTTTM and Article 11.1 of Resolution no. 01/2014, the documents that the arbitral tribunal needs to send to the Court for the Court to collect evidences include:

Such a proposal to collect evidence must clearly indicate:

• The circumstances of the dispute,
• Evidence to be collected, 
• Reasons for the failure to collect evidence, 
• Names and addresses of agencies, organizations and individuals that manage and preserve such evidence.

Enclosed with:

• The arbitration agreement, 
• Petition, 
• Relevant documents, 
• Documents and evidence proving the unsuccessful attempt to collect evidence.

Competent courts handle requests for evidence collection according to the following process:

• Within 7 working days after receiving a proposal for evidence collection, the president of the competent court shall assign a judge to consider and deal with this proposal. 
• Within 5 working days after being assigned, such judge shall request in writing agencies, organizations and individuals that are managing and preserving evidence to provide it for the court
• At the same time, send such proposal to the same-level procuracy for the latter to perform its functions and tasks under law.
• Agencies, organizations and individuals that are managing and preserving the evidence shall fully and promptly provide such evidence at the court’s request within 15 days after receiving the request.
• After such a time limit, if such agencies, organizations or individuals fail to supply adequate materials and evidence at the request of the Courts, they shall make written responses containing explanations.
• Past the time limit, if agencies, organizations and individuals fail to provide the evidence as requested, the court shall immediately notify such to the arbitration council and requester and. At the same time, request in writing competent agencies or organizations to handle the failure under law. 
• Any agencies, organizations or individuals failing to comply with the requests of the Courts without good and sufficient reasons shall be administratively sanctioned or shall face criminal prosecution as prescribed by law, depending on nature and severity of the violations. The administrative penalties or criminal prosecution as prescribed by law imposed on the agencies, organizations or individuals shall not mean the exemption from supply of materials/evidence to the Courts.
• Within 5 working days after receiving the evidence provided by agencies, organizations and individuals, the court shall notify such to the arbitration council and requester for delivery and receipt of evidence.

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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