Dispute settlement by non-public arbitration helps enterprises keep confidential information about disputes that may affect their production and business activities. However, to resolve a dispute by commercial arbitration, the two parties must have an arbitration agreement and must meet the requirements on form as well as content. 

Legal basis

• Article 6 Law on Commercial Arbitration 2010
• Article 4 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.

Regulation

Arbitration can not be commenced if the arbitration agreement cannot be performed due to practical or legal impediments. Practical obstacles to arbitration include situations such as the death of the arbitrator named in the arbitration agreement or the refusal of the arbitrator to appoint and the parties cannot agree on a replacement. Resolution 01/2014 provides for the following practical obstacles that make the arbitration agreement unenforceable:

• The parties concerned have an agreement to resolve their disputes at a specific arbitration center which has now shut down without any arbitration center that inherits its cases, and the parties concerned fail to reach an agreement on another arbitration center to resolve their disputes.
• Both parties have an agreement on appointment of a specific arbitrator to resolve disputes, but when the dispute arises, because of force majeure events or objective difficulties, such arbitrator cannot resolve the case, or the arbitration center or court cannot find a substitute arbitrator as agreed by the parties concerned, and the parties concerned also fail to reach an agreement to select a substitute arbitrator.
• Both parties have an agreement on appointment of a specific arbitrator to resolve disputes, but when the dispute arises, such arbitrator refuses the appointment or the arbitration center refuses the arbitrator appointment, and the parties concerned also fail to reach an agreement to select a substitute arbitrator.
• The parties concerned have an agreement to resolve their disputes at a specific arbitration center but a set of arbitration rules of another arbitration center, which is different from the arbitration rules of the agreed arbitration center, is applied, the charter of the arbitration selected by both party does not allow the application of arbitration rules of other arbitration centers, and the parties concerned fail to reach an agreement on substitute set of arbitration rules.
• The goods/service seller and consumers have an overall agreement on provision of goods/services that contain arbitration terms drafted by the seller as prescribed in Article 17 of LCA, but the consumers refuse to have the dispute that arises resolved by an 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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