Deep concern was raised about a recent ruling by the Hanoi Court wherein an arbitration award was set aside, citing one of the reasons for nullification as the lack of consular legalization of the power of attorney.
The ruling on the nullification reads as follows: “In this case, it is to be understood that in the absence of provisions within the Law on Commercial Arbitration and the accompanying guidelines on commercial arbitration, the provisions of the Civil Procedure Code shall apply. Accordingly, Article 478 has stipulated that ‘Documents, papers, and Vietnamese translations certified, notarized, or consular legalized are considered as legally consular legalized.’ Therefore, the Arbitral Tribunal proceeded with accepting the plaintiff’s request for arbitration and acknowledged the representative’s capacity to partake in the proceedings under the power of attorney when the documents were not consular legalized, despite the defendant’s objection that these documents did not conform to the regulations, is in breach of the Vietnamese regulations.” More details on this decision in Vietnamese can be found below.
The annulment of an arbitration award due to the absence of consular legalization of the power of attorney is not a novel matter, as recently, the Ho Chi Minh Court also adopted a similar approach when an arbitration award was set aside, with the rationale being that the arbitration award contradicted fundamental principles of Vietnamese law, specifically pertaining to the Power of Attorney dated June 15, 2018, issued by the relevant party to enable lawyers to partake in arbitration proceedings at the arbitration center without consular legalization, contrary to the provisions of Decree No. 111/2011/NĐ-CP, dated December 5, 2011, issued by the Government. More details on this decision in Vietnamese can be found here: https://lnkd.in/gNFr5NJh
It appears that this judicial approach may persist, and further comparable rulings could be issued in the future in the absence of strong actions from the commercial law and arbitration community in Vietnam.
