Decision No. 16.2019/QDKDTM-ST

Claimant: U Company, Philippines.

Stakeholders: D Steel Joint Stock Company

Regarding: Requirements for recognition and enforcement in Vietnam of Foreign Arbitrators

Case Summary

On 12/06/2017, U Company in the Philippines and D Steel Joint Stock Company based in Vietnam signed a purchase and sale contract for 6000 tons of high-grade billet steel with a contract value of 2.43 million USD. During the performance of the contract, D Steel Company did not deliver goods in accordance with the quantity as well as on-time stated in the Purchase and Sale Contract. A dispute has arisen between the two parties.

According to the agreement concluded in the contract, any dispute arising during the sale shall be resolved by arbitration under the conciliation and arbitration rules of the International Chamber of Commerce by a panel of three arbitrators appointed following the rules of conciliation and arbitration. On December 28, 2017, Company U filed a petition at the International Court of Arbitration of the International Chamber of Commerce (ICC). At the time of application, the Arbitration Rules of the International Court of Arbitration under the International Chamber of Commerce applied were the 2017 Code, which came into force on 01/03/2017. The dispute between U Company and D Steel Joint Stock Company was resolved at the ICC Judgment.

ICC Decision No. 23329/PTA/ASB/HTG dated 19/10/2018 and Annex to Decision 23329/PTA/ASB/HTG dated 11/12/2018. Request D Steel Company to compensate for damages claimed by Company U. After the Judgment was established, U Company sent a request to the Human Rights Court of Da Nang City, requesting the Court to recognize and enforce in Vietnam the Judgment of Case File No. 23329/PTA/ASB/HTG dated 19/10/2018 and the Annex to Judgment 22329/PTA/ASB/HTG dated 11/12/2018 of the International Court of Arbitration of the International Chamber of Commerce (ICC).

Judgment of the court

Judgment 22329/PTA/ASB/HTG dated 11/12/2018 issued by the International Court of Arbitration of the International Chamber of Commerce (ICC), the place of arbitration is the Republic of Singapore, determined by the Court to be a foreign arbitration award, as stipulated in Clause 12 Article 3 of the Law on Commercial Arbitration and Article 424 of the Code of Civil Procedure. Vietnam does not have a bilateral treaty with Singapore on the recognition and enforcement of foreign arbitral awards. However, Vietnam has acceded to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on June 10, 1958, pursuant to Decision No. 453/QD-CTN dated July 28, 1995 of the President of the Socialist Republic of Vietnam (hereinafter referred to as the New York Convention 1958). The Republic of Singapore is also a party to the 1958 New York Convention. Therefore, the Court applies this Convention to consider the claim of U Corporation. The Court also applies the provisions of Vietnamese law, including the Civil Code 2015, the Commercial Law 2005, the Code of Civil Procedure and the Law on Commercial Arbitration 2010 to consider and settle.

Judgment Case No. 23329/PTA/ASB/HTG dated 19/10/2018 and Annex to Judgment 3 23329/PTA/ASB/HTG dated 11/12/2018 of the International Court of Arbitration of the International Chamber of Commerce (ICC) on the form of documents are in accordance with Article 4 of the 1958 New York Convention. Considering that the content of the ruling is in accordance with the substantive law of the Socialist Republic of Vietnam, at the meeting, a representative of D Steel Company also did not object to the content of the ruling. The Panel considers that the recognition and enforcement in Vietnam of Judgment No. 23329/PTA/ASB/HTG dated 19/10/2018 and Annex to Judgment 23329/PTA/ASB/HTG dated 11/12/2018 of the International Court of Arbitration of the International Chamber of Commerce (ICC) are appropriate, not contrary to the basic principles of law of the Socialist Republic of Vietnam, when considering the conditions for recognition and enforcement of the judgment. In Article 13 of this Contract, there is an agreement on commercial arbitration, specifically: This contract is under the jurisdiction of international arbitration.. Disputes shall be resolved by arbitration in accordance with the Mediation and Arbitration Rules of the International Chamber of Commerce by a panel of three arbitrators appointed under these Mediation and Arbitration Rules. The venue of the arbitration will be conducted in Singapore.” In addition, the two parties also agree on the language of arbitration, the finality of the arbitral award, the validity, interpretation, and enforcement governed by Singapore law. Thus, the parties have an agreement on commercial arbitration that is in writing. At the same time, this agreement is express, complete, not canceled by the Singapore Courts, and does not fall into any categories within the case for an arbitration agreement that is invalid under Article 18 of the Law on Commercial Arbitration. On the other hand, the dispute settlement award requested by the parties and not exceeding the arbitration agreement is in accordance with the provisions of Article 12 of the Law on Commercial Arbitration. At the meeting, Company D confirmed that it knew of and did not object to an arbitrator conducting proceedings. Therefore, it is appropriate for an arbitrator to issue Award 23329. The contents of the ruling are appropriate, and not contrary to the basic principles of law of the Socialist Republic of Vietnam.

A Statement from the Representative of the People’s Procuracy of Da Nang. D Steel Joint Stock Company should accept the request of U Company, and therefore recognize and enforce in Vietnam Judgment No. 23329/PTA/ASB/HTG dated 19/10/2018 and Annex to Judgment 23329/PTA/ASB/HTG dated 11/12/2018.

Court Decision

Recognition and enforcement in Vietnam Judgment No. 23329/PTA/ASB/HTG dated 19/10/2018 and Annex to Judgment 23329/PTA/ASB/HTG dated 11/12/2018 of the International Court of Arbitration of the International Chamber of Commerce (ICC) on the dispute settlement of the Premium Billet Purchase Contract No. DNY-UNI-12.06.2017 dated 12/6/2017 signed between U Company, Address: Punturin, Valenzuela City, Philippines with D Steel Joint Stock Company, Ward H, District L, Da Nang City, Vietnam.

Legal bases

Articles 4 and 5 of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on June 10, 1958; Clause 5, Article 31, Point e, Clause 2, Article 39 and Points a, b, Clause 1, Clause 3, Article 424, Article 459 of the Code of Civil Procedure. Clause 12, Article 3, Article 12 and Article 18 of the Law on Commercial Arbitration; Arbitration Rules of the International Court of Arbitration of the International Chamber of Commerce 2017. Articles 74 and 86 of the 2015 Civil Code; Article 13 of the Enterprise Law 2014; Clause 1, Article 34, Clause 1, Article 37, Clause 2, Article 41, Article 300, Article 301 and Article 302 of the Commercial Law. Article 37 of Resolution No. 326/2016/UBTVQH14.