WHAT SHOULD BE NOTED ON ARBITRATION AGREEMENT?

Commercial arbitration is an effective and expedient method of dispute resolution. However, to resolve disputes and enforce arbitration awards validly, it is essential to consider the following issues regarding arbitration agreement.

Disputes can only be resolved through arbitration if there is an agreement.

Disputing parties have the right to submit their dispute to arbitration, but a specific agreement must be in place. Arbitrators will settle the dispute based on the parties’ arbitration agreement and within their jurisdiction as defined by the law.

The person establishing the arbitration agreement must have legal capacity and authority according to the provisions of law

The person establishing the arbitration agreement must have legal capacity. Specifically, individuals lacking legal capacity include minors, those declared legally incapacitated, or those with restricted legal capacity.

The jurisdiction is considered valid if the person establishing or representing the agreement falls into one of the following categories:

– Acting as the legal representative under the law.

– Legally authorized by power of attorney. Note that the scope of the arbitration agreement must correspond to the authorized scope.

However, if the arbitration agreement is established by the person without the authority to do so, but during the establishment or execution of the arbitration agreement, or during the arbitration proceedings, the authorized person accepts or is aware of it without objection, then the arbitration agreement remains valid.

The arbitration agreement must be established in the prescribed form

The arbitration agreement must be established in accordance with regulations. Parties may agree to establish the arbitration agreement either as an arbitration clause within a contract or as a separate agreement. However, it is important to note that the arbitration agreement must be established in writing.

Some forms of agreement considered to be established in writing include:

– Agreements established through exchanges between parties via telegram, fax, telex, email, and other forms as regulated by law;

– Agreements established through written exchanges of information between parties;

– Agreements documented by lawyers, notaries public, or authorized organizations at the request of the parties;

– References made in transactions to a document reflecting the arbitration agreement, such as contracts, documents, company bylaws, and similar documents;

– Exchanges regarding claims and self-defense documents indicating the existence of an agreement made by one party, which the other party does not deny.

The arbitration agreement is not viable

As one of the basis for determination of the authority to resolve disputes, if the arbitration agreement, although properly established in form, is not viable, then one party has the right to sue in Court.

The arbitration agreement is not viable means any arbitration agreement in the cases below:

– 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 inherit its cases, and the parties concerned fail to reach an agreement on another arbitration center to resolve their disputes.

– Bother 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.

– Bother 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 but the consumers refuse to have the dispute that arises resolved by an arbitral tribunal.

Other remarks

Additionally, the arbitration agreement will be deemed void if one of the parties is deceived, threatened, or coerced during the establishment of the arbitration agreement; or if it violates the prohibitions of the law.

>> FORM OF COMMERCIAL ARBITRATION PETITION https://linconlaw.vn/form-of-commercial-arbitration-petition/

>> OBLIGATION OF GUARANTEE IN SALE OF OFF-PLAN HOUSING https://linconlaw.vn/obligation-of-guarantee-in-sale-of-off-plan-housing/