02 important notes for the burden of proof in Arbitration proceedings in Vietnam

Collecting and providing evidence is one of the important issues in dispute settlement whether in Court litigation or Arbitration proceedings. Currently, the Law on Commercial Arbitration of Vietnam 2010 (“LCA 2010”) and the Arbitration Rules of many arbitration centers in Vietnam have not had the detailed regulations on proof and evidence. This made it difficult for both the parties and the Arbitral Tribunal to resolve the disputes at Commercial arbitration. 

Under the prevailing regulations, how is the obligation to prove and file evidence to settle the case?

The above issue will be presented by BLawyers Vietnam through this article.

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1. Proof and evidence in Arbitration proceedings

There is no definition of evidence in the LCA 2010. Currently, when settling the dispute in Arbitration, Vietnamese Arbitrators/ Lawyers often consider and determine the issues relating to evidence based on the regulations on evidence as prescribed in Civil Procedure Code of Vietnam.

Accordingly, the definition of evidence is quite broad, including all things that are real, collected under the proper order and procedures to clarify, verify the facts of the case and to be the basis for settling the involved parties’ claims, arguments, or counterclaims.

2. The burden of proof under the LCA 2010

2.1. Proving and providing evidence is both the right and obligation of the claimant and respondent

Similar to Court litigation and international arbitration proceedings, the laws on commercial arbitration prescribe that the claimant and the respondent have both the right and obligation to provide evidence to the Arbitral Tribunal in supporting of their claims and prove that the facts relevant to the issues under dispute is well-grounded.

However, the disputing parties often consider that the Arbitral Tribunal is obliged to collect evidence at their request to resolve the case. Therefore, the practice in settling dispute at some Arbitration centers in Vietnam shows that the parties have not actively collected evidence to prove their claims but requested the Arbitral Tribunal to do so.

It should be noted that there has been this case in practice: the claimant initiated an arbitration but failed to provide evidence to support its claim from the time of case acceptance until the date of opening the final settlement meeting. At the final settlement meeting, the claimant requested an extension of the time to provide evidence, the Arbitral Tribunal refused the claimant’s request and issued an award not to accept the claimant’s claim. After that, the claimant requested the Court to annul the arbitral award on the ground that Arbitral Tribunal violated the basic principles of Vietnamese law when refusing its request for extending the time of providing evidence. Finally, the competent Court stated that the Arbitral Tribunal’s award did not violate the Vietnamese laws’ basic principles in this case and refused the claimant’s request for annulling the arbitral award (Refer to Decision No. 12/2018/QD-KDTM dated 9 November 2018 of the Ha Noi City People’s Court).

2.2. The claimant and the respondent are obliged to provide evidence at the Arbitral Tribunal’s request

The prevailing LCA 2010 has not stipulated the right of the Arbitral Tribunal to request the disputing parties to provide evidence. However, regarding this issue, the Arbitration Rules of Vietnam International Arbitration Center (VIAC) regulates that the Arbitral Tribunal shall have the power to request the disputing parties to provide evidence, and the parties shall be obliged to provide evidence accordingly.

2.3. There has been no provision stating that a disputing party is entitled to directly request the other party to provide documents and evidence

In the Arbitration proceedings in Vietnam, there is no clear provision allowing a disputing party to request the other party to provide and publicize evidence. On the other hand, Arbitration proceedings have not had any regulation on opening a meeting to examine the handover and publicity of evidence like Court proceedings in Vietnam.

In this case, when considering it necessary to collect documents from the other party, a party can only request the Arbitral Tribunal to request the other party to do so, the Arbitral Tribunal will consider and decide whether to accept this request or not.

2.4. Arbitration’s power to collect evidence

Pursuant to the LCA 2010, Arbitral Tribunal can collect evidence through the following activities:

  1. At the request of a party or the parties, Arbitral Tribunal shall have the power to request witnesses to provide information and documents relating to the dispute settlement;
  2. By itself or at the request of a party or the parties, the Arbitral Tribunal requests an assessment and valuation of assets in the dispute as a basis for settling the dispute;
  3. By itself or at the request of a party or the parties, the Arbitral Tribunal consults the opinions of experts; and
  4. At the request of a party or the parties and considering it necessary, the Arbitral Tribunal summons witnesses to participate in the meeting session for dispute settlement.

In practice, the application of the above regulations may face several difficulties as follows:

  • The Arbitral Tribunal has non- State jurisdiction and coercive power. Thus, the witnesses often do not provide evidence, documents, or attend the meeting session for settling the dispute as requested by the Arbitral Tribunal;
  • The assessment, valuation of assets is the Arbitral Tribunal’s obligation or under the discretion of the Arbitral Tribunal, which is not clearly understood; and
  • Expert evidence is rarely used in Vietnam Arbitration proceedings due to the lack of a comprehensive regulations for expert evidence.
2.5. Court’s assistance in collecting evidence and summoning the witnesses

During the dispute settlement process in arbitration, a competent Court may assist in collecting evidence in the following cases:

  • The Arbitral Tribunal, one or the disputing parties request the province-level Court where the evidence exists to assist in collecting evidence if they have applied all possible methods and capabilities to ask a third party to provide evidence but still failed. Of note, the request sent to the Court must be accompanied by evidence proving that the evidence collection has been conducted but unsuccessfully.
  • The Arbitral Tribunal requests the province-level Court where the witness resides to assist in summoning a witness if the witness has been properly summoned by the Arbitral Tribunal, but the witness did not attend the dispute settlement meeting. Of note, the request sent to the Court must be accompanied by evidence proving that the Arbitral Tribunal has duly summoned but the witnesses did not attend the dispute settlement meeting without a plausible reason and their absence obstructed the case settlement.

When requesting the Court to assist in collecting evidence and summoning of witnesses as mentioned above, the requesting party must pay fees for collecting evidence, summoning witnesses and expenses for collection and expenses for witnesses according to the laws.

In conclusion, providing and collecting evidence in Arbitration proceedings in Vietnam is still unclear and has some differences compared with Vietnamese Courts litigation and the international arbitration proceedings. Therefore, the disputing parties, including Vietnamese or foreign entity, should pay close attention to the above issues to effectively collect, provide evidence and settle disputes at the commercial arbitration in Vietnam.

Should you have any questions about the above contents, please revert to BLawyers Vietnam at consult@blawyersvn.com. We are more than happy to hear from you!

Date: 27 December 2022

Writer: Trinh Nguyen

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