Circular No. 02/PL-DSKT guiding the implementation of certain points of Decree No. 116-CP dated September 5, 1994 of the Government on the organization and operation of economic arbitration.

CIRCULAR

GUIDELINES FOR IMPLEMENTING CERTAIN POINTS OF DECREE NO. 116-CP DATED SEPTEMBER 5, 1994

OF THE GOVERNMENT ON THE ORGANIZATION AND OPERATIONS OF ECONOMIC ARBITRATION

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On September 5, 1994, the Government issued Decree No. 116-CP on the organization and operations of economic arbitration.

To properly implement the provisions of the above decree, the Ministry of Justice provides specific guidelines as follows:

I. REGARDING THE JURISDICTION OF ECONOMIC ARBITRATION

1. In accordance with Article 1 of the Decree, the Economic Arbitration has jurisdiction to resolve the following disputes, regardless of the nationality of the disputing parties:

a. Disputes concerning economic contracts between legal entities, between legal entities and private enterprises, between private enterprises, and between legal entities, private enterprises and individual traders;

b. Disputes between companies and their members, and among members of a company related to the establishment, operation, dissolution of the company such as disputes over withdrawal of capital from the company, distribution of losses and profits, merger, division, dissolution of the company, disputes regarding rights and obligations of company members;

c. Disputes related to the purchase and sale of shares and bonds.

2. The Arbitration Center determines its field of activity based on the expertise of the arbitrators. The field of activity of the Center must be clearly stated in the Charter of the Center. During its operation, the Arbitration Center may expand or narrow its field of activity, but it must obtain the consent of the Chairman of the People's Committee of the province or centrally governed city and must be supplemented in the Charter of the Center.

II. REGARDING THE STANDARDS FOR ARBITRATORS

The conditions for recognizing arbitrators have been stipulated in Article 8 of the Decree. Some specific standards are as follows:

1. A person considered to have knowledge and experience in the fields of law and economics as provided in point b, Clause 1, Article 8 of the Decree is a person who holds a university degree in law or equivalent and has at least eight consecutive years of work in legal and economic affairs.

2. A person deemed to be mentally incapacitated as provided in Clause 2, Article 8 of the Decree is a person suffering from mental illness or another disease that impairs cognitive ability or control over their actions, confirmed by a health authority at provincial or centrally governed city level or higher.

III. REGARDING THE ISSUANCE, RENEWAL, AND REVOCATION OF ARBITRATOR CARDS

1. Establishment of the Selection Council for Arbitrators

a. The Selection Council for Arbitrators (hereinafter referred to as the Selection Council) as provided in Clause 4, Article 8 of the Decree consists of five members, including both internal and external judicial staff, established by the Minister of Justice for each selection round, with the function of advising the Minister of Justice in selecting arbitrators.

b. The Selection Council has the following powers and responsibilities:

b.1. Reviewing the files of individuals who have submitted applications for recognition as arbitrators;

b.2. Organizing professional examinations for those proposed to be recognized as arbitrators;

b.3. Preparing a report on the results of the selection and recommending the Minister of Justice to recognize arbitrators.

c. Supporting the Selection Council is a specialized team appointed by the Minister of Justice. The specialized team has the following powers and responsibilities:

c.1. Receiving, compiling files, and preparing a list of individuals who have submitted applications for recognition as arbitrators sent by the Department of Justice;

c.2. Preparing relevant materials and files related to the selection process of arbitrators;

c.3. Notifying the time and place of the professional examination for individuals who have submitted applications for recognition as arbitrators;

c.4. Preparing necessary conditions for the professional examination and activities of the Selection Council;

c.5. Performing necessary tasks for the Minister of Justice to recognize and issue Arbitrator Cards;

c.6. Storing and preserving all relevant files and materials related to the selection process of arbitrators and the files of arbitrators.

2. Selection Procedures

a. Individuals wishing to be recognized as arbitrators must submit an application for an Arbitrator Card to the Department of Justice of the locality where they reside. The application consists of two copies, including:

a.1. An application for recognition as an arbitrator;

a.2. A curriculum vitae certified by the People's Committee of the commune, ward, or town where the applicant resides;

a.3. A certificate of health status;

a.4. Certified copies of diplomas and certificates of professional qualifications certified by a Notary Public.

In cases where the application is incomplete or not in compliance, the Department of Justice will guide the applicant to supplement the application.

Within ten days from the deadline for submitting applications set by the Ministry of Justice for each selection round, the Department of Justice is responsible for transferring one copy of the application along with its opinion on the moral character and professional qualifications of the applicant to the Ministry of Justice.

b. The time, location, form, and content of the professional examination for recognizing arbitrators are decided by the Minister of Justice.

c. Notices summoning the Selection Council meeting must be sent to council members at least ten days before the meeting.

The Council can only convene a meeting if all members are present.

d. At the meeting of the Council, according to the assignment of the Chairperson, a member presents the documents in the file and announces the results of the professional examination of each applicant for recognition as an arbitrator;

Based on the standards for arbitrators, members of the Council express their opinions. The Chairperson may request the specialized team to provide information on issues of interest to Council members.

During the selection process, if there are issues that cannot be clarified during the meeting, the Council may decide to supplement materials for review in the next meeting.

The resolution of the Council on the results of the selection for each individual must be approved by a majority vote of the members.

The contents of the Council meeting must be recorded in minutes, signed by the Chairperson and Secretary of the Council.

3. Issuance of Arbitrator Cards

Within ten days from the end of the selection process, the Selection Council must report the results and recommend the Minister of Justice to consider and decide on the recognition of arbitrators.

The Arbitrator Card shall be issued within fifteen days from the date of the Decision recognizing the arbitrator.

4. Renewal of Arbitrator Cards

The Arbitrator Card is valid for a period of two years, upon expiration it can be renewed, except in cases where the arbitrator does not participate in any Arbitration Center without a legitimate reason during that time.

5. Revocation of the Arbitrator Card

a. According to point đ, clause 2, Article 9 of the Decree, the Arbitrator Card may be revoked in cases where the arbitrator seriously violates the law, specifically being sentenced to imprisonment, being disciplined with dismissal, or being forced to resign, or being administratively punished for violations of economic laws.

b. In cases where the arbitrator violates the law and is punished by the aforementioned measures, the Director of the Department of Justice must immediately report in writing to the Ministry of Justice, clearly stating recommendations for specific measures, including the revocation of the Arbitrator Card. The Director of the Department of Justice is responsible for implementing this decision.

IV. REGARDING THE PROCEDURES FOR ISSUANCE AND REVOCATION OF THE LICENSE TO ESTABLISH AN ARBITRATION CENTER

1. Procedures for Issuance of the License to Establish

a. Arbitrators who wish to establish an Arbitration Center must submit an application to the Chairman of the People's Committee of the province or centrally-administered city where the center is intended to be located.

The application for establishing an Arbitration Center consists of two sets, including:

a.1. An application form for establishing an Arbitration Center as prescribed by the Ministry of Justice, signed by all founders;

a.2. The Charter of the Arbitration Center approved by all founders;

a.3. Curriculum vitae and copies of the Arbitrator Cards of all founders;

a.4. A list of arbitrators of the Arbitration Center, copies of their Arbitrator Cards.

b. The Department of Justice has the responsibility to assist the People's Committee of the province or centrally-administered city in receiving and examining applications for establishing an Arbitration Center.

In cases where the application is incomplete or not in compliance, the Department of Justice will guide the applicants to supplement the application. The receipt time is calculated from the date when a complete and compliant application is submitted.

c. Within ten days from the date of receiving a complete and compliant application, the People's Committee of the province or centrally-administered city sends one set of the application for establishing an Arbitration Center to the Ministry of Justice for a written response.

d. Within fifteen days from the date of receiving the Ministry of Justice's response, the Chairman of the People's Committee of the province or centrally-administered city decides to issue or refuse to issue the license to establish an Arbitration Center. If the license is not issued, the reasons must be clearly stated.

đ. The template for the license to establish an Arbitration Center is prescribed by the Ministry of Justice.

e. After obtaining the License to Establish, the Arbitration Center opens an account at a bank and applies for a seal.

2. Suspension of Operations and Revocation of the License to Establish

According to point d, clause 2, Article 9 of the Decree, the Chairman of the People's Committee of the province or centrally-administered city issues a decision to suspend operations and revoke the License to Establish an Arbitration Center in cases where the Arbitration Center seriously violates the law.

Serious violations of the law by the Center may include:

- Operating contrary to the provisions of the law on economic arbitration and the Charter of the Center;

- Intentionally failing to strictly comply with reporting requirements to state agencies responsible for managing arbitration work;

- Intentionally failing to strictly fulfill obligations prescribed by law.

The decision to suspend operations and revoke the License to Establish an Arbitration Center is copied to the Ministry of Justice.

V. REGARDING THE ORGANIZATIONAL STRUCTURE OF THE ARBITRATION CENTER

1. The name of the Arbitration Center can be named after the place where the Center is located or another name chosen by the founders, starting with the phrase "Arbitration Center." The name of the Arbitration Center must be clearly stated in the Charter of the Center.

2. The Arbitration Center has a President, Vice Presidents, and Secretary of the Arbitration Center. The names of the President and Vice Presidents must be clearly stated in the Charter of the Center. State officials cannot serve as President, Vice President, or Secretary of the Arbitration Center.

3. The President of the Arbitration Center has the following main responsibilities and authorities:

a. Managing and directing the activities of the Center and representing the Center in external relations;

b. Appointing arbitrators to resolve disputes according to the provisions of Article 17 of the Decree;

c. Considering and resolving requests to disqualify arbitrators according to the provisions of Article 18 of the Decree;

d. Deciding on the admission and expulsion of arbitrators based on the proposal of at least two-thirds of the arbitrators of the Center.

4. The Vice President of the Arbitration Center assists the President of the Arbitration Center in performing tasks assigned by the President as specified in the Charter of the Arbitration Center.

5. The term of office of the President and Vice Presidents is stipulated in the Charter of the Center but shall not exceed three years. The President and Vice Presidents of the Arbitration Center may be re-elected if the Charter of the Center does not provide otherwise.

6. The Secretary of the Arbitration Center is appointed by the President of the Center.

The Secretary of the Arbitration Center assists the President in the following tasks:

a. Receiving complaints and dispute files;

b. Sending documents of the Arbitration Center to relevant individuals and organizations;

c. Providing information about the Arbitration Center and its arbitrators when requested by clients;

d. Preparing material and technical conditions to ensure the resolution of disputes;

đ. Collecting arbitration fees;

e. Storing and preserving documents and files related to the Center's activities.

7. Remuneration for the President, Vice Presidents, and Secretary of the Arbitration Center is deducted from administrative expenses as prescribed by the Charter of the Center.

Every six months, the Director of the Department of Justice in the locality where the Economic Arbitration Center is located reports in writing to the Ministry of Justice on the operation of the Economic Arbitration Center and proposes measures to strengthen state management over economic arbitration work.