1. CASE STUDY

Case 1 (public – private)

VN party signed a contract with JPN party for development of an infrastructure works.

Case 2 (private – private)

JPN party entered into a distribution relationship with VN party.

2. ROLE OF ENFORCING CONTRACTS

– Enforcing contracts as a mean to settle dispute

– Determine investors’ trust in the host country, that the investor was right to decide to invest in Vietnam

– Protection of investors

– Make sure the contracts are performed in accordance with

– Enhance trust relationship with the VN partners

– Rule of law guarantee

3. MECHANISM OF ENFORCING CONTRACTS

– Constitution

– Vietnam Japan Bilateral Investment Treaty (BIT)

– Investment Law and other laws

– Civil Code

– Arbitration (foreign and domestic)

– Litigation

– ICSID or International Court of Justice

4. NEGOTIACTION AND RECONCILIATION

Case 1

– The dispute matter was not anticipated in the Contract, leading to different understanding.

– 2 years of negotiation and reconciliation before arbitration – each side keeps its position.

Case 2

– VN party breaches the contract, alleging certain unrelated “breaches” from the JP party.

– Impossible to negotiate.

– In both cases, there is only an arbitration clause. There was no reconciliation mechanism in the Contract.

5. ARBITRATION

Case 1: international arbitration

– Question on jurisdiction

– Question on arbitration fee payment

– Time, cost and pressure during arbitration

– Common intention of both parties to solve disputes.

Case 2: domestic arbitration

– Issue of concurrent court proceeding

– Injunctive relief

– VIAC arbitration and due process

– Setting aside the award

– Enforcing the award

6. LITIGATION

– Court system and competence

– Judge, procurator, clerk and lawyers

– Civil, criminal, administrative, labour proceedings

– Process and non-process matters

– Court assistance and supervision of the arbitration proceeding

7. INVESTOR PROTECTION

– Careful draft the contracts to avoid ambiguity and dispute

– Careful draft the arbitration clause, make a balanced calculation between proposals among applicable law, procedural law, lex arbitri, place of arbitration, institution of arbitration, rules of arbitration.

– Add reconciliation/mediation clause where possible.

– Effective negotiation before arbitration

– To arbitrate or not: what is in the contract and what is in the law? Who is the arbitrator? What is the certainty of the outcome?

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