Why Arbitration Matters More Than Ever
When business relationships collapse, companies often discover too late that their contract’s dispute resolution clause is important. Arbitration, trusted for neutrality, speed, and cross border enforceability has become a core part of global commerce.
As a practising arbitration counsel advising clients before domestic and international tribunals, we have seen how a clause can protect and one can lead to procedural delay.
In here, we draw on eight lessons every company and every team of arbitration counsel should know before a dispute begins.
It draws from Vietnam’s Law on Commercial Arbitration, the Civil Procedure Code (CPC), the UNCITRAL Model Law, and the New York Convention, aligning Vietnamese practice with international standards.
The Clause Defines the Framework
Every arbitration begins with a clause and that clause defines the framework. The clause is limited to only a few sentences in length but play significant important roles.
Arbitration counsel in Vietnam frequently encounter clauses that look professional but contain flaws, for example:
- The institution is misnamed, creating jurisdictional confusion.
- The seat of arbitration is omitted, leaving no supervisory court.
- The law governing the arbitration agreement is missing, causing conflict between substantive and procedural rules.
These errors violate core doctrines:
- Separability, which said the arbitration clause remains valid even if the main contract is invalid.
- Competence-competence, which said the tribunal has the first right to determine its own jurisdiction.
This clause is not boilerplate; it defines enforceability.
Procedure Is Also Strategy
Once a tribunal is constituted, procedure becomes strategy.
The lex arbitri, the law of the seat controls how the arbitration proceeds.
Under the competence-competence doctrine, the tribunal decides jurisdiction first, though courts can later review.
In domestic arbitration, Vietnam’s VIAC Rules and the Law on Commercial Arbitration govern timelines.
In international cases, institutional rules and the chosen seat dictate procedure.
The lawyers practicing arbitration understand that timing, evidence, and professional tone shape the tribunal’s perception more than rhetoric.
Enforcement Is Where Reality Begins
Winning an arbitral award is only half the victory. Enforcement gives it value.
In domestic arbitration, awards have the same force as court judgments unless annulled as regulated in the Law on Commercial Arbitration.
In international arbitration, enforcement follows the New York Convention, which Vietnam joined in 1995.
Vietnam’s Civil Procedure Code governs recognition and enforcement of foreign arbitral awards.
Key points include:
1. Authority to Sign: The person signing the arbitration agreement must have legal authority; otherwise, enforcement fails.
2. Proper Notice: Mis-delivery between a company’s branch and head office can invalidate proceedings.
3. Tribunal Formation & Due Process: The tribunal must act impartially and within its mandate.
4. Fundamental Principles of Vietnamese Law: Awards violating Vietnam’s core legal principles may be refused recognition as regulated under the Law on Commercial Arbitration.
Arbitration counsel preparing enforcement applications translate international obligations into local procedures, ensuring filings meet CPC’s deadline and citing the New York Convention appropriately.
Setting Aside Is Not a Second Trial
Sometimes, losing parties seek to try their case through setting aside proceedings.
In Vietnam, grounds for annulment are limited to:
- Invalid arbitration agreement.
- Improper notice or lack of opportunity to present the case.
- Tribunal exceeding its authority.
- Procedural irregularities.
- Violation of fundamental principles of Vietnamese law.
Under Resolution 81/2025/UBTVQH15, effective July 1st, 2025, only the People’s Courts of Hanoi, Da Nang, and Ho Chi Minh City instead of local provincial courts may hear annulment or enforcement cases. This changes would help improve uniformity.
For foreign awards, Vietnamese courts cannot annul them but may refuse recognition under CPC.
Arbitration counsel ensure clients understand that “setting aside” and “refusal of enforcement” are different processes governed by different laws.
The Three Roles of Arbitration Counsel
Modern arbitration counsel in Vietnam perform three essential roles:
1. Advocates before Tribunals: presenting legal arguments, cross-examining witnesses, and coordinating expert testimony in both domestic and international arbitrations.
2. Legal Representatives: managing petitions to enforce or set aside awards, ensuring harmony between Vietnamese law, the UNCITRAL Model Law, and the New York Convention.
3. Advisers to Businesses: designing enforceable clauses, choosing the correct seat, and preparing companies for dispute readiness.
By balancing these roles, arbitration counsel bridge arbitral autonomy and judicial oversight, helping Vietnam maintain investor confidence.
Technology Changes The Arbitration
Arbitration now operates in a digital environment.
Virtual hearings are getting popular. In Vietnam, there is no law or guidance on artificial intelligence assisting in document review but Ciarb’s guidelines on the use of AI could be a good reference.
The UNCITRAL Arbitration Rules and ICC Rules already allow online procedures.
However, technology imposes new duties, ensuring data security, confidentiality, and authenticity of evidence.
Competent arbitration counsel combine legal skill with digital literacy, guaranteeing that virtual hearings remain fair under the lex arbitri and institutional standards.
Mediation Still Matters
Even with sophisticated arbitration systems, early settlement remains best.
The Med-Arb model, recognized in Vietnam and promoted by UNCITRAL, blends mediation and arbitration for efficiency.
Arbitration counsel trained in both methods guide clients to resolve disputes early while safeguarding enforceability.
This pragmatic approach saves cost, preserves relationships, and supports business continuity.
Vietnam’s Progress and Direction
Vietnam’s arbitration framework is young but advancing rapidly.
Since 2010, the Vietnam International Arbitration Centre (VIAC) has adopted modern rules, and courts increasingly apply doctrines such as separability and competence-competence.
Recent judgments published by the Supreme People’s Court show greater consistency in enforcement decisions.
Each recognition of a foreign award, and each principled refusal under CPC, brings Vietnam closer to global standards under the UNCITRAL Model Law.
Arbitration lawyers in Vietnam play a decisive role in this transformation, case by case, award by award, leveling up Vietnam to get closer to a trusted arbitration jurisdiction in Asia.
Step-by-Step Guide: How to Build an Effective Arbitration Strategy
Designing an arbitration strategy is proactive, not reactive.
The following framework could be used by arbitration counsel to help companies prepare for disputes long before they happen.
Step 1: Draft the Right Arbitration Clause
- Choose a recognized institution and define the seat.
- State governing and procedural laws clearly.
- Maintain separability.
- Seek early review by arbitration counsel.
Step 2: Preserve Evidence and Communication
- Keep all correspondence and contracts organized.
- Send clear written notices when issues arise.
- Document negotiation efforts.
Step 3: Assess the Forum and the Law
- Determine whether the case is domestic or international.
- Identify the seat, applicable law, and enforceability options.
- Consult arbitration counsel for comparative analysis.
Step 4: Select the Tribunal Wisely
- Research arbitrators’ independence and expertise.
- Evaluate diversity and balance.
- Consider the level of the potential conflict for appropriate institutions.
Step 5: Manage the Procedure Professionally
- Respect deadlines and tribunal orders.
- Maintain professional tone and compliance.
- Use the party’s autonomy principle responsibly.
Step 6: Control Costs and Expectations
- Budget early for arbitrators’ fees, translations, experts, and travel.
- Use transparent, phase based billing with arbitration counsel.
Step 7: Anticipate Enforcement Early
- Ensure signatories have authority.
- Confirm assets in New York Convention jurisdictions.
- Keep all procedures clean to resist annulment challenges.
Step 8: Plan for Settlement and Med-Arb Options
- Include mediation clauses where appropriate.
- Allow arbitration counsel to coordinate between mediation and arbitration phases.
Step 9: Prepare for Post Award Action
- Gather certified copies and translations.
- File recognition or defense petitions with one of the three competent courts.
- Rely on arbitration counsel familiar with Vietnamese court practice.
Step 10: Learn and Improve
- After each case, review performance and refine internal policies.
- Treat every dispute as a lesson in risk prevention.
Frequently Asked Questions (FAQ)
Q1: What makes arbitration counsel different from litigation lawyers?
They blend cross border advocacy with procedural strategy, mastering the New York Convention and multiple institutional rules. Language skills are also important to ensure smooth communication.
Q2: What is the difference between domestic and international arbitration in Vietnam?
Domestic involves Vietnamese parties only; international includes a foreign element, affecting procedure and enforcement.
Q3: What if the arbitration clause is unclear?
An unclear clause may cause delay or court intervention. Arbitration counsel can redraft it before signing.
Q4: What are “fundamental principles of Vietnamese law”?
They refer to fairness, equality, good faith, and lawful protection, the Vietnam’s version of “public policy”.
Q5: How long does an arbitration usually take?
Typically 6–12 months at VIAC; complex cross border cases may last longer.
Q6: Can a court decide the merits of an arbitral award?
No in principle. Courts review only procedure, not substance. But this might be interpreted differently in Vietnam sometimes, which is considered procedure and which is not.
Q7: Is online arbitration recognised in Vietnam?
Yes. Virtual hearings are permitted if confidentiality and fairness are ensured and parties agree.
Q8: How can businesses reduce arbitration costs?
By focusing issues, limiting witnesses, and collaborating closely with arbitration counsel.
Q9: Which arbitration institutions are most common in Vietnam?
Domestically, VIAC; regionally, SIAC for international contracts.
Q10: What is the biggest mistake companies make?
Waiting until a dispute begins before seeking advice from arbitration counsel. Early consultation prevents future risks.
Building Trust Through Fairness
Every arbitration starts long before a notice of dispute.
The procedure parties design decides the justice they receive.
Doctrines such as separability, competence-competence, and lex arbitri, together with the UNCITRAL Model Law and New York Convention, make arbitration predictable and respected worldwide.
In Vietnam, these principles are now daily practice, applied by institutions, and arbitration counsel who translate international standards into local law.
Arbitration is not just an alternative to litigation, it is a symbol of business trust and legal maturity.
About ANT Lawyers, a Law Firm in Vietnam
We help clients overcome cultural barriers and achieve their strategic and financial outcomes, while ensuring the best interest rate protection, risk mitigation and regulatory compliance. ANT lawyers has lawyers in Ho Chi Minh city, Hanoi, and Danang, and will help customers in doing business in Vietnam.
Source: https://antlawyers.vn/arb/8-essential-lessons-from-arbitration-counsel.html
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