It first looks at board models in some jurisdictions and then discusses on contemporary board structures in types of company under the company legislation of Vietnam to argue for further reform.
Until the legal framework is further developed, the practical importance of this approach to dispute resolution cannot be Luat doanh nghiep vietnam. Both foreign and local parties are encouraged to seek the assistance of relevant authorities to arrive at an amicable solution to any dispute, although no formal system of mediators and conciliators has yet been developed.
Background and Problem Areas Although Vietnam is in the process of building a more internationally acceptable dispute resolution framework, such framework remains at an early stage.
As such, in common with other developing countries, formal dispute resolution and enforcement will continue to be a concern for investors in the short term for the following reasons: Conciliation and Mediation The laws of Vietnam emphasise the need for parties to settle their disputes by conciliation and mediation.
Both foreign and local parties are encouraged to seek the assistance of the relevant authorities to arrive at an amicable solution to any dispute, although no formal system of mediators and conciliators has yet been developed.
A settlement agreement reached between the parties during mediation or conciliation is currently treated in the same way as a normal contractual agreement, with the usual contractual remedies available for a breach of its provisions. It is not uncommon for the authorities to assist foreign parties by applying administrative pressure on the Vietnamese parties if the merits of the foreign party's case are clearly established.
Well-drafted and detailed documentation will greatly improve the foreign party's position in this respect. If conciliation and mediation fail, the parties may, under certain circumstances, refer the matter to various forums, including international arbitrators, commercial arbitrators in Vietnam, Vietnamese courts or foreign courts.
It should be noted, however, there are certain restrictions on the availability of such forums. Shortly thereafter, the Ordinance on Foreign Arbitral Awards was passed providing for domestic enforcement of foreign arbitral awards.
General Under the CPC, foreign arbitral awards are defined as arbitral awards rendered outside Vietnam and also arbitral awards rendered by non-Vietnamese arbitrators within Vietnam.
A Vietnamese court will only consider an application for recognition and enforcement of a foreign arbitral award where the award has been made in or by arbitrators of a country being a party to the New York Convention or, in the case of a country not being a party to the New York Convention, to the extent a country grants reciprocal treatment to Vietnam.
An organisation or individual which wins a foreign arbitral award may petition a Vietnamese court for recognition of the award and permission to enforce it, provided that: An award recognised by a Vietnamese court will have the same legal effect as a judgment given by a Vietnamese court and can be enforced in Vietnam.
It used to be the case under the Ordinance on Foreign Arbitral Awards that recognition and enforcement of arbitral awards were limited to disputes arising out of or in connection with commercial legal relations, which was generally interpreted as being limited to sales contracts and trade-related contracts.
The CPC has significantly broadened the scope of recognition and enforcement of arbitral awards in relation to business and commercial disputes i. Grounds for rejection of foreign arbitral awards A Vietnamese court may reject an application for recognition and enforcement of a foreign arbitral award if the respondent can provide evidence proving that: In practice, Vietnamese courts have, on many occasions, refused to recognise and enforce several foreign arbitral awards on the basis that the underlying contract including the arbitration provision was invalid due to the fact that the signatory to that contract was not duly authorised to sign it.
In addition, a Vietnamese court may reject an application for the recognition and enforcement of a foreign arbitral award if it decides that the dispute should not be resolved by arbitration under the laws of Vietnam, or that the recognition and enforcement of the award is contrary to the "basic principles of the laws of Vietnam".
This concept is not expressly defined by law. Interestingly, the procedures prescribed by law in relation to the recognition and enforcement of foreign arbitral awards appear to grant only the respondent i.
Judgments issued by foreign courts are not enforced in Vietnam unless Vietnam has signed a bilateral treaty with the relevant country regarding enforcement of that country's court judgments.
To date, Vietnam has entered into bilateral treaties with a few countries including Russia, Cuba, Bulgaria, Hungary and France in relation to the enforcement of civil judgments issued by foreign courts. With the exception of the treaty with France, civil judgments are those relating to non-commercial disputes and therefore these bilateral treaties are neither useful nor applicable to commercial disputes.
The CPC now allows the Vietnamese courts to recognise and enforce court judgments from a foreign country on the basis of reciprocity comityalthough it is not yet clear how this will be implemented in practice.
Domestic Arbitration In the past, arbitrators in Vietnam were members of economic arbitration centres and the Vietnam International Arbitration Centre "VIAC"both of which were established in the s. However, the operation of these arbitration centres was very limited due to the fact that their arbitral awards were not enforceable in practice.
For example, less than 20 commercial disputes were reported to have been brought before these arbitration centres each year. Since the issuance of the Ordinance on Commercial Arbitration on 25 FebruaryVietnam has significantly improved its legislation on the operation of commercial arbitrators in Vietnam.
It is expected that more commercial arbitration centres will be established in the near future. Under the Ordinance on Commercial Arbitration, commercial disputes may be resolved by an arbitration tribunal organised by an arbitration centre or set up by the parties ad hoc arbitration.
The arbitration tribunal may consist of three arbitrators or a single arbitrator as agreed by the parties.
Commercial arbitrators in Vietnam have jurisdiction to arbitrate commercial disputes. The Ordinance on Commercial Arbitration has adopted a broad interpretation of "commercial disputes" to include various disputes relating to the sale and purchase of goods, provision of services, distribution, business representation and agency, custodianship, leasing or hiring, hire purchase, construction, consultancy, licensing, investment, finance, banking, insurance, exploration and exploitation, transportation and other commercial activities.
For the first time, the laws of Vietnam allow parties to a dispute with "foreign elements" to: The Ordinance on Commercial Arbitration expressly confirms that arbitral awards issued by commercial arbitrators in Vietnam will be enforced in Vietnam.Mar 24, · Introducing expandable ads on AdSense sites We're excited to introduce to you expandable ads, a new type of ad that can appear on your pages.
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