TRỌNG TÀI THƯƠNG MẠI QUỐC TẾ

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 arbitratio

International Commercial

Arbitration

Nguyen Manh Dzung, MCIArb

Managing Partner - Dzungsrt & Associates

Vice President - Pacific International Arbitration Center (PIAC)

Hà N ội - 03/11/2010

Dispute Resolution

International Commercial Arbitration

Litigation

Dispute Resolution

2 Arbitration is:

2.1 based in contract

2.2 alternative to litigation

2.3 not (strictly) ADR

3 ADR – ‘alternative dispute resolution’

4 ‘Alternative’ to ‘Adjudication’

5 ‘Adjudication’ – third party determination

• there should be minimal court intervention

• binding enforceable award

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

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

Other Why arbitration?

Alleged Advantages

• CONFIDENTIALITY AND PRIVACY

 Who says so?

What is ad hoc arbitration

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”

What is institutional arbitration

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.

Institutional arbitration

Administered by an institution set up specifically toprovide 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 professionalbody or industry

Infrastructure helps in smooth running of arbitration

• Support of administrative staff

• Name –”cache” of institution

• Cost includes administrative and managementcharges

International Arbitration Institutions

• Asia Pacific Regional Arbitration Group ('APRAG') includes over 30 members: http://www.aprag.org./

• Singapore International Arbitration Center (SIAC):

Vital Statistics

Preferred Arbitration Venues

Các t ổ 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?

Types of arbitration

(Traditional) Commercial arbitration

• i.e consensual (and binding)

Investment (treaty) arbitration

• Arbitration without privity

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”

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

1 International & Comparative Commercial

Arbitration of School of International Arbitration, Queen Mary University of London

2 International Commercial Arbitration of University

of Westminster

Thank you for your attention !

Dzungsrt & Associates

Suite 901, HAREC building,

4A Lang H ạ str, Ba Đình Dist, Ha Noi.

Tel (4) 3772 6970 / Fax (4) 3772 6971

Email dzung.nguyen@dzungsrt.com

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 dzung.nguyen@piac.com.vn