베트남 신⋅구 중재법의 비교 (A Comparison of New and Old Arbitration Laws in Vietnam)

서지정보

· 발행기관 : 국제거래법학회
· 수록지 정보 : 국제거래법연구 / 22권 / 1호 / 343 ~ 372페이지
· 저자명 : 신충일

초록

The purpose of this paper is to review the contents and interpretation of certain provisions of the Law on Commercial Arbitration (the “Law”) which took effect as of January 1, 2011.
Under the circumstances where the credibility of the judicial system of Vietnam is not high in the eyes of foreign investors, the value of arbitration as an alternative dispute resolution system is very high. The Government of Vietnam has made efforts to organize and develop an arbitration system and, in 2003, enacted Ordinance on Commercial Arbitration (the “Ordinance”), which was the first comprehensive law on arbitration in Vietnam.
However, the Ordinance caused various criticisms due to its many weaknesses and defects in terms of fairness and rapidity. Considering many parts of such criticisms, the Government of Vietnam enacted the Law to replace the Ordinance in 2010. Many foreign investors including Korean investors and legal practitioners are now showing great interest in the amended provisions in the Law and their practical application, and this has been a direct motivation to prepare this paper.
This paper reviews the main differences between the Law and the Ordinance by way of comparing the differences between the equivalent provisions of the two laws.
Comparing the differences between the two laws should help us understand more clearly the legislative purposes and intentions of the provisions of the Law which amend the Ordinance. In addition, this paper discusses certain provisions of the Law which still requires improvements.
On comparing the two laws, it was found that the Law has improved many of the weaknesses and defects of the Ordinance, and thus the Law is now closer to international standards. However, the cooperation and assistance of the judiciary and the executive of Vietnam is essential for the Law to be effective in practice and to contribute to the success of the arbitration system in Vietnam. In conclusion, the Law could be evaluated as having put the arbitration system on the right track at the moment.
The Law has amended certain provisions of the Ordinance as follows: (1) The Law has extended the scope of arbitrability.
(2) The Law amended the relevant provision on arbitration language so that arbitration language can be selected which is fair to all parties.
(3) The Law removed the provision on “fundamental principles of the law of Vietnam” so that the parties do not need to consider such principles when they select and apply the applicable law to the dispute.
(4) The Law removed the provision which makes an arbitration agreement void when the parties fail to specify the subjects of the dispute or the arbitration organization in the relevant arbitration agreement.
(5) The Law removed the nationality requirement of arbitrators, and also allowed exceptional circumstances where an expert who does not satisfy the professional qualification of arbitration could still be selected as an arbitrator in special cases.
(6) The Law incorporated a number of devices to prevent intentional delays of arbitration proceedings by a party.
(7) The Law granted the arbitration tribunal the authority to issue interim relief.
(8) The Law allowed the court to become involved in arbitration proceedings to guarantee fair and rapid arbitration proceedings.
(9) The Law allows foreign arbitration institutions to establish branches in Vietnam.
There are certain parts of the Law still requiring improvements as follows: (1) According to the Law, the arbitrability of some disputes is still uncertain, and thus enactment and revision of some laws are necessary to clarify the arbitrability of such disputes.
(2) According to the Law, if a party discovers a breach of the provisions of the Law or the arbitration agreement but does not object to such breach within the time-limit stipulated in the Law, that party shall lose the right to object in arbitration or before the court. However, the time-limit is not specified and needs to be modified by amendment of the relevant provision.
(3) According to the Law, the interim relief would only be available after the arbitration tribunal is established. Therefore, an emergency arbitrator system is necessary to make such interim relief available as soon as the statement of claim is submitted.
(4) According to the Law, when an arbitration award is set aside by the court, resolution of the same dispute through re-arbitration is not possible in practice.
However, re-arbitration needs to be allowed at least when the grounds to set aside arbitration award could be removed in the re-arbitration.
(5) According to the Law, no appeal against the decision of a first instance court on a request to set aside arbitral awards is allowed. However, to provide parties with fair trial opportunities, such appeals need to be allowed.

영어초록

The purpose of this paper is to review the contents and interpretation of certain provisions of the Law on Commercial Arbitration (the “Law”) which took effect as of January 1, 2011.
Under the circumstances where the credibility of the judicial system of Vietnam is not high in the eyes of foreign investors, the value of arbitration as an alternative dispute resolution system is very high. The Government of Vietnam has made efforts to organize and develop an arbitration system and, in 2003, enacted Ordinance on Commercial Arbitration (the “Ordinance”), which was the first comprehensive law on arbitration in Vietnam.
However, the Ordinance caused various criticisms due to its many weaknesses and defects in terms of fairness and rapidity. Considering many parts of such criticisms, the Government of Vietnam enacted the Law to replace the Ordinance in 2010. Many foreign investors including Korean investors and legal practitioners are now showing great interest in the amended provisions in the Law and their practical application, and this has been a direct motivation to prepare this paper.
This paper reviews the main differences between the Law and the Ordinance by way of comparing the differences between the equivalent provisions of the two laws.
Comparing the differences between the two laws should help us understand more clearly the legislative purposes and intentions of the provisions of the Law which amend the Ordinance. In addition, this paper discusses certain provisions of the Law which still requires improvements.
On comparing the two laws, it was found that the Law has improved many of the weaknesses and defects of the Ordinance, and thus the Law is now closer to international standards. However, the cooperation and assistance of the judiciary and the executive of Vietnam is essential for the Law to be effective in practice and to contribute to the success of the arbitration system in Vietnam. In conclusion, the Law could be evaluated as having put the arbitration system on the right track at the moment.
The Law has amended certain provisions of the Ordinance as follows: (1) The Law has extended the scope of arbitrability.
(2) The Law amended the relevant provision on arbitration language so that arbitration language can be selected which is fair to all parties.
(3) The Law removed the provision on “fundamental principles of the law of Vietnam” so that the parties do not need to consider such principles when they select and apply the applicable law to the dispute.
(4) The Law removed the provision which makes an arbitration agreement void when the parties fail to specify the subjects of the dispute or the arbitration organization in the relevant arbitration agreement.
(5) The Law removed the nationality requirement of arbitrators, and also allowed exceptional circumstances where an expert who does not satisfy the professional qualification of arbitration could still be selected as an arbitrator in special cases.
(6) The Law incorporated a number of devices to prevent intentional delays of arbitration proceedings by a party.
(7) The Law granted the arbitration tribunal the authority to issue interim relief.
(8) The Law allowed the court to become involved in arbitration proceedings to guarantee fair and rapid arbitration proceedings.
(9) The Law allows foreign arbitration institutions to establish branches in Vietnam.
There are certain parts of the Law still requiring improvements as follows: (1) According to the Law, the arbitrability of some disputes is still uncertain, and thus enactment and revision of some laws are necessary to clarify the arbitrability of such disputes.
(2) According to the Law, if a party discovers a breach of the provisions of the Law or the arbitration agreement but does not object to such breach within the time-limit stipulated in the Law, that party shall lose the right to object in arbitration or before the court. However, the time-limit is not specified and needs to be modified by amendment of the relevant provision.
(3) According to the Law, the interim relief would only be available after the arbitration tribunal is established. Therefore, an emergency arbitrator system is necessary to make such interim relief available as soon as the statement of claim is submitted.
(4) According to the Law, when an arbitration award is set aside by the court, resolution of the same dispute through re-arbitration is not possible in practice.
However, re-arbitration needs to be allowed at least when the grounds to set aside arbitration award could be removed in the re-arbitration.
(5) According to the Law, no appeal against the decision of a first instance court on a request to set aside arbitral awards is allowed. However, to provide parties with fair trial opportunities, such appeals need to be allowed.

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