Vietnamese law is not clear that a non-contractual claim (i.e., a claim which is not based on a breach of contract) could be settled by commercial arbitration. However, Vietnamese courts seem to take the view that non-contractual claims cannot be settled by commercial arbitrations. The answer to this issue is also important to the enforcement and recognition of a foreign arbitral award which deals with non-contractual claims. This is because Vietnamese courts can refuse to recognise a foreign arbitral award if the dispute cannot be settled by arbitration under Vietnamese law.

Argument supporting the view that a non-contractual claim can be settled by arbitration under Vietnamese law relies on the Law on Commercial Arbitration 2010 (LCA 2010). In particular, the LCA 2010 does not exclude non-contractual claims from being settled by commercial arbitration. Instead, under the LCA 2010, as long as there is an arbitration agreement between the disputing parties and at least one disputing party involves in commercial activities.

However, arguments supporting the view that a non-contractual claim cannot be settled by arbitration under Vietnamese law rely on various grounds. In particular,

• The Civil Procedures Code 2015 (CPC 2015) which provides for jurisdictions of the courts clearly distinguishes between “commercial disputes” and “civil disputes” which includes non-contractual claims. For example, a “civil dispute” will be handled by a “civil” courts while a commercial dispute will be handled by a commercial courts. Accordingly, to ensure consistency between the CPC 2015 and the LCA 2010, the terms “commercial disputes” under the LCA 2010 should be construed to mean the disputes which are classified as “commercial disputes” under the CPC 2015 which do not include disputes relating to non-contractual claims.

• If applying the liberal interpretation of the LCA 2010 then commercial arbitration could be used to settled any kind of disputes involving an organisation or individual conducting commercial activities as long as there is an arbitration agreement (e.g., an inheritance dispute).

• In practice, the Supreme Court of Vietnam has indicated in its training material (available Here (see page 52)) that a non-contractual claim cannot be settled by commercial arbitration in Vietnam.  

This post is written by Nguyen Quang Vu with research assistance by Le Thanh Nhat.

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