Based on practical dispute resolution experience and numerous legal studies, the 2010 Commercial Arbitration Law has revealed certain limitations regarding the application of provisional urgent measures (PUMs), particularly when issues arise involving third parties. These issues need to be addressed to ensure that arbitration resolves disputes effectively, fairly, and upholds justice. With the goal of discussing matters related to third parties in the application of PUMs under Vietnamese legal provisions and international experience, on the morning of March 22, 2024, in Room A.905 at Nguyen Tat Thanh Campus, Ho Chi Minh City University of Law, in collaboration with the Vietnam International Arbitration Center (VIAC), organized a specialized seminar on "Provisional Urgent Measures in Arbitration and the Impact of Third Parties."
This event is part of the 2024 Arbitration and Mediation Symposium (AMS 2024), with the main theme being “Third Parties and Their Impact on Arbitration Procedures,” which will take place from March 22 to April 11, 2024.
The seminar saw the participation of many experts in the legal field
The seminar was attended by Prof. Dr. Do Van Dai – Vice President of the University and VIAC Arbitrator; Assoc. Dr. Tran Viet Dung – Vice President of the University, VIAC Arbitrator, and Chair of the session; Mrs. U Thi Bach Yen – Former Judge of the Economic Court of the Ho Chi Minh City People's Court and VIAC Arbitrator; Attorney Nguyen Trung Nam – Founding Partner of EPLegal Law Firm and VIAC Arbitrator; Dr. Nguyen Thi Hoa – Lecturer at the International Law Department, Ho Chi Minh City University of Law; and Mr. Huynh Quang Thuan – Lecturer at the Civil Law Department, Ho Chi Minh City University of Law.
From VIAC, the seminar was graced by the presence of Attorney Chau Viet Bac – Deputy Secretary-General; Attorney Luong Van Ly – Senior Advisor at Global Vietnam Lawyers (GV Lawyers) and VIAC Arbitrator; and Mr. Huynh Dang Hieu – Deputy Head of the Secretariat. In addition, the seminar attracted interest from lecturers, lawyers, business representatives, and students.
Assoc. Prof. Dr. Tran Viet Dung, Vice President of the University, VIAC Arbitrator, and Chairperson, delivered the opening speech at the seminar.
Prof. Dr. Do Van Dai, Vice President of the University and VIAC Arbitrator, gave a speech at the seminar.
On behalf of VIAC, Attorney Chau Viet Bac, Deputy Secretary-General of VIAC, delivered a speech at the seminar.
In his opening speech at the seminar, Assoc. Prof. Dr. Tran Viet Dung emphasized the importance of improving Alternative Dispute Resolution (ADR) mechanisms in the context of current global economic integration. One of the key issues highlighted was the legal framework in Vietnam that allows arbitral tribunals to apply Provisional Urgent Measures (PUMs). Furthermore, he noted that the application of PUMs involving third parties presents a complex challenge, as arbitration procedures typically only involve the parties who have signed the arbitration agreement. The organizing committee expressed its hope that the experts would openly discuss these issues and explore effective solutions to help Vietnam’s arbitration sector align more closely with international standards, in line with the country's integration policies.
The seminar was divided into two sessions. In the first session, the following presentations were delivered:
- "Vietnamese Legal Perspective: The Decision to Apply Provisional Urgent Measures by the Arbitral Tribunal and Its Impact on Third Parties Not Involved in the Dispute" – by Huynh Quang Thuan, PhD candidate, Lecturer at the Civil Law Department, Ho Chi Minh City University of Law.
- "The Role of the Court in the Application of Provisional Urgent Measures by the Arbitral Tribunal" – by Mrs. U Thi Bach Yen, Former Judge of the Economic Court of the Ho Chi Minh City People’s Court, and VIAC Arbitrator.
In his presentation, PhD candidate Huynh Quang Thuan emphasized that PUMs in arbitration procedures play a critical role in ensuring the enforcement of judgments, maintaining the integrity of the procedural process, and protecting evidence and the rights of the parties involved. He analyzed the issue and recommended that arbitral tribunals should not have the authority to apply PUMs to third parties (as this may violate the fundamental principles of arbitration). However, he suggested that the tribunal's authority could be extended to include measures that require third-party support for enforcement, such as freezing bank accounts or seizing assets of the obligated party at a holding location. Furthermore, to protect the rights of third parties, Mr. Thuan proposed that the law should provide third parties whose rights have been infringed with the right to request the annulment of PUMs, as well as the right to cancel PUMs issued by the arbitral tribunal.
M.A. Huynh Quang Thuan, Lecturer at the Civil Law Department, Ho Chi Minh City University of Law, presented the paper "The Vietnamese Legal Perspective: The Arbitral Tribunal’s Decision to Apply Provisional Urgent Measures and Its Impact on Third Parties Not Involved in the Dispute."
However, regarding this issue, Mrs. U Thi Bach Yen – Former Judge of the Economic Court of the Ho Chi Minh City People's Court and VIAC Arbitrator – expressed a more open viewpoint. According to Mrs. Yen, Vietnam should consider expanding the authority of the arbitral tribunal, allowing the tribunal to apply Provisional Urgent Measures (PUMs) to third parties, as there is currently no provision in the Commercial Arbitration Law that prohibits this. Moreover, Mrs. Yen pointed out that before applying PUMs, the Commercial Arbitration Law already allows the arbitral tribunal to require the requesting party to provide security measures. Therefore, if the application of PUMs causes damage to a third party, the requesting party will be held responsible for compensation. As such, expanding the tribunal’s authority to apply PUMs to third parties would not have any negative impact on the arbitration process or on the third party involved.
Ms. U Thi Bach Yen, Former Judge of the Economic Court at the People's Court of Ho Chi Minh City and VIAC Arbitrator, presented the paper "The Role of the Court in the Application of Provisional Urgent Measures by the Arbitral Tribunal."
In the second session, the following presentations were delivered:
- "International Experience Perspective: The Issue of Applying Provisional Urgent Measures Involving Third Parties and the Trends in International Arbitration" – by Attorney Nguyen Trung Nam, Founding Partner of EPLegal Law Firm and VIAC Arbitrator.
- "Some Recommendations on Regulations for Third Parties and Expanding the Authority of the Arbitral Tribunal in Applying Provisional Urgent Measures" – by Dr. Nguyen Thi Hoa, Lecturer at the International Law Department, Ho Chi Minh City University of Law.
Following the expert discussions in the first session, Attorney Nguyen Trung Nam, Founding Partner of EPLegal Law Firm and VIAC Arbitrator, shared his views on the need for a thorough consideration of the mechanism for applying Provisional Urgent Measures (PUMs) involving third parties. However, he expressed support for expanding the authority of the arbitral tribunal, as this would enhance the effectiveness of arbitration procedures. He suggested that Vietnam could draw on the experience of the UK’s draft new law, which is currently being developed to allow arbitral tribunals the authority to apply PUMs to third parties.
Attorney Nguyen Trung Nam, Founder of EPLegal Law Firm and VIAC Arbitrator, presented the paper "The International Experience Perspective: The Issue of Applying Provisional Urgent Measures Involving Third Parties and the Trends in International Arbitration Approaches."
Finally, Dr. Nguyen Thi Hoa, Lecturer at the International Law Department, Ho Chi Minh City University of Law, offered several suggestions to enhance the authority of the arbitral tribunal. She argued that third parties who are harmed by the application of Provisional Urgent Measures (PUMs) should not be allowed to bring a lawsuit in court before the arbitration proceedings are concluded. This is because allowing such claims would undermine the independence, impartiality, and objectivity of the arbitral tribunal in continuing to resolve the dispute. Therefore, responsibility should only be assigned to the party requesting the PUMs if its application causes harm to another party, as stipulated in Article 52 of the Commercial Arbitration Law. If accountability is to be placed on the arbitral tribunal, it should only be after a final award has been made to end the arbitration proceedings, and only when it can be proven that an arbitrator was not independent, impartial, or objective. This approach would prevent disruption of the arbitration process, and ensure that Vietnam gains the trust of international investors who would then consider it as a preferred venue for resolving disputes through arbitration.
In addition, Dr. Hoa proposed extending the effectiveness of arbitration agreements to third parties who receive the rights or obligations under a contract containing an arbitration agreement. She also suggested that third parties benefiting from a contract with an arbitration agreement should have the right to bring disputes before the arbitral tribunal if one of the parties to the contract breaches its obligations towards them.
Dr. Nguyen Thi Hoa, Lecturer at the Department of International Law, Ho Chi Minh City University of Law, presented the paper "Some Recommendations on Regulations for Third Parties and Enhancing the Arbitral Tribunal's Authority in Applying Provisional Urgent Measures."
In an open and serious academic atmosphere, legal experts raised many questions to clarify the legal issues still surrounding the topic of the seminar. Issues related to the protection of the legal rights and interests of third parties in arbitration procedures, as well as the responsibility for compensation for damages caused by the application of Provisional Urgent Measures (PUMs), attracted the attention and discussion of a large number of attendees.
Attorney Luong Van Ly, Senior Advisor at Global Vietnam Lawyers (GV Lawyers) and VIAC Arbitrator, shared his perspectives during the seminar
The experts engaged in lively discussions to reach a consensus on the issues raised
After a productive working session, the seminar recorded many professional and constructive opinions and viewpoints surrounding the application of Provisional Urgent Measures (PUMs) to third parties. These discussions laid the foundation for legal experts to continue their in-depth research, contributing to the improvement of the legal framework for Commercial Arbitration in Vietnam.
The seminar served as a foundation for legal experts to continue in-depth research and contribute to the improvement of commercial arbitration law, particularly in the application of Provisional Urgent Measures (PUMs) involving third parties.
Content: Quynh Nhu
Photo: Phuong Thao
HCMULAW Media Department