KluwerArbitration

Document information Recognition and Enforcement of Foreign Arbitral Awards

in Vietnam
Publication Quang Chuc Tran
Journal of International (*)
Arbitration
I Introduction
Jurisdiction Subsequent to its accession to the United Nations Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (“New York Convention” or “the Convention”), ( 1 )
Vietnam Vietnam enacted the Ordinance on Recognition and Enforcement of Foreign Arbitral
Awards in Vietnam (the “Foreign Arbitral Awards Ordinance”). ( 2 ) The Foreign Arbitral
Awards Ordinance was, effectively, the codification of the tenets of the New York
Bibliographic Convention into Vietnamese law. In 2004, the Foreign Arbitral Awards Ordinance was
incorporated into the Civil Procedure Code (CPC) and ceased to exist on January 1, 2005,
reference when the CPC came into effect. ( 3 ) Because a code is superior to an ordinance in the
Quang Chuc Tran, legal hierarchy, ( 4 ) the incorporation can be considered as progress in the legal
'Recognition and framework for the recognition and enforcement of foreign arbitral awards in Vietnam.
Enforcement of Foreign P 488 Also not without significance has been the recent enactment of the Ordinance on
Arbitral Awards in Commercial Arbitration (the “Commercial Arbitration Ordinance”). ( 5 ) The Arbitration
Vietnam', Journal of Ordinance, which deals with both domestic and international arbitration, fills a vacuum
International Arbitration, in the commercial arbitration regime in Vietnam.
(© Kluwer Law
International; Kluwer Law Notwithstanding these developments, the legal framework for recognition and
International 2005, Volume enforcement of foreign arbitral awards in Vietnam remains unfavourable, the drawbacks
22 Issue 6) pp. 487 - 503 being with respect to the following. First, the CPC incorporates the Foreign Arbitral Awards
Ordinance without any apparent changes and thus fails to rectify its shortcomings; the
cursory and cumbersome provisions of the Foreign Arbitral Awards Ordinance remain
intact in the CPC. Secondly, despite the enactment of the Commercial Arbitration
Ordinance, other laws that constitute part of the legal framework for recognition and
enforcement of foreign arbitral awards are still incomplete and contradictory. As such,
they do not duly support the provisions on recognition and enforcement of foreign
arbitral awards of the CPC.
This article attempts first to demonstrate the important role of national laws in the legal
framework for recognition and enforcement of foreign arbitral awards. From that
perspective, it presents the conclusion that the national laws of Vietnam are
unfavourable to the existing framework. The following sections of the article examine the
problems inherent to recognition and enforcement provisions in the CPC and other
relevant laws and proposes solutions to those problems.

II The Role of National Laws

It is undeniable that in the legal framework for recognition and enforcement of foreign
arbitral awards, international treaties (worldwide, regional and bilateral) play a crucial
role. ( 6 ) Of these, the New York Convention is “the most widespread and effective
instrument.” ( 7 ) Moreover, the New York Convention “can be considered as the most
important Convention in the field of arbitration and as the cornerstone of current
international commercial arbitration,” ( 8 ) its worldwide acceptance being the best
evidence of its success. As of August 2005, 136 countries had adhered to the Convention. (
9 ) It is worth bearing in mind, however, that the New York Convention and other
international treaties on recognition and enforcement of foreign arbitral awards are not
the only sources of that legal framework. However important those treaties are, the
recognition and enforcement of foreign arbitral awards “does not exist in a vacuum
P 489 outside of the sphere of national law.” ( 10 ) Rather, the Convention contains
“significant references” to national laws. ( 11 ) Redfern and Hunter assert that “[t]he
dependence of the international arbitral process upon national systems of law is most
clearly seen in the context of the recognition and enforcement of international awards.” (
12 ) The same is true for foreign arbitral awards in general.
The first national laws which play an important role are the laws of the enforcing state.
The rules of the procedure for recognition and enforcement of foreign arbitral awards
falling within the scope of application of the Convention are left to the law of the
enforcing state. Article 3 of the Convention provides that “[e]ach Contracting State shall
recognize arbitral awards as binding and enforce them in accordance with the rules of
procedure of the territory where the award is relied upon, under the conditions laid down
in the following articles.”
The Convention thus only lays down the conditions of the recognition and enforcement;
the detailed procedure is set forth by the national law of each contracting state where
the enforcement of foreign arbitral awards is sought. Notably, the national law of the

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 enforcing state plays a significant role in providing for the matters of arbitrability and
public policy that serve as grounds for setting aside a foreign arbitral award. ( 13 )
The Convention also refers to many other national laws when providing the grounds for
refusing the recognition and enforcement of a foreign arbitral award. The national law
“that governed the particular arbitration that produced the award whose enforcement is
sought” plays a significant role as well. ( 14 ) Article 5(1)(a), (d) and (e) of the New York
Convention refer to the national law, defining the grounds for setting aside an award. ( 15 )
Other national laws to which the New York Convention refers are the laws governing the
parties’ capacity to enter into an arbitration agreement and the law governing the
validity of the arbitration agreement. ( 16 )
National laws — including the national law of the enforcing state, the national law where
the award is made or other relevant national laws — are of unquestionable importance in
the legal framework for recognition and enforcement of foreign arbitral awards. In
Vietnam, in spite of recent developments, these laws remain unfavourable owing to the
cumbersome and cursory provisions of the CPC and the incomplete provisions of other
relevant parts of the legal framework, including but not limited to laws directly dealing
with arbitration. The sections that follow examine each of these problems in greater
detail.
P 490

III Foreign Arbitral Awards Provisions of the CPC

The Foreign Arbitral Awards Ordinance was composed of twenty-four articles divided into
three chapters. Chapter 1 set forth such general provisions as the definition of a foreign
arbitral award, principles of recognition and enforcement of foreign arbitral awards and
the guarantee of the right to transfer property and funds related to the enforcement of
foreign arbitral awards from Vietnam to a foreign territory. Chapter 2 set out the
procedure for recognition and enforcement of foreign arbitral awards. Chapter 3 dealt
with such issues as the relationship between the Foreign Arbitral Awards Ordinance and
international treaties to which Vietnam was a party or signatory, and addressed
countervailing measures that Vietnamese courts could apply in response to a foreign
rejection of a Vietnamese arbitral award on grounds of discrimination.
The CPC incorporates the Foreign Arbitral Awards Ordinance without many remarkable
changes. The CPC simply copies the foreign arbitral awards provisions found in the
Foreign Arbitral Awards Ordinance. The CPC provides for the recognition and enforcement
of both foreign arbitral and civil judgments in Part 6. Articles 34(1)(b) and 35(2)(e) also
address recognition and enforcement, setting out provisions for competent courts to
handle requests of recognition and enforcement of foreign arbitral awards.
Part 6 of the CPC spans Chapters 26 through 29. The relevant general provisions in Chapter
26 are merely a copy of Chapter 1 of the Foreign Arbitral Awards Ordinance. The
subsequent chapters elaborate on these provisions, with Chapter 29 providing the
procedure for recognition and enforcement of foreign arbitral awards in Articles 364
through 374.
There are, however, two differences to speak of between the Foreign Arbitral Awards
Ordinance and the foreign arbitral awards provisions of the CPC. These relate to the
definition of a foreign arbitral award ( 17 ) and the provision of the grounds for setting
aside an award to be proven by the respondent. ( 18 ) It is useful first to consider the
latter difference; the difference relating to the definition being best addressed in
another context. ( 19 )
Article 370 of the CPC, which mirrors Article 16 of the Foreign Arbitral Awards Ordinance, is
a counterpart of Article 5 of the New York Convention. This well-known provision sets out
the grounds for setting aside a foreign arbitral award. It is worth noting that Article 5 of
the New York Convention has two parts. The first part provides for the grounds proven by
the respondent, ( 20 ) while the second part “concerns the violation of public policy of the
law of the forum, … the ground on which a court may refuse enforcement on its own
motion.” ( 21 ) Article 16(1) of the Foreign Arbitral Awards Ordinance duly incorporated
P 491 Article 5 of the New York Convention by providing that “[a] foreign arbitral award shall
not be recognized and enforced in Vietnam if the organization/individual against
which/whom the award is enforced has legitimate evidence for the court to confirm that.
…” Making a change for the worse, Article 370(1) of the CPC simply provides that “a foreign
arbitral award shall not be recognized in Vietnam in the following circumstances. …” The
CPC thus removes the requirement that the burden of proof for refusal be borne by the
respondent, which is one of the main features of Article 5 of the Convention. ( 22 )
In general, the foreign arbitral awards provisions of the CPC are cursory and more
cumbersome than those of the New York Convention. Specifically, they embody three
main problems: the lack of provisions on recognition and enforcement of arbitration
agreements; the cumbersome procedure for recognition and enforcement of foreign
arbitral awards; and the inappropriateness of the definition of a foreign arbitral award.

A Lack of provisions on arbitration agreements

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 The scope of application of the New York Convention contains two aspects: the
recognition and enforcement of arbitration agreements and the recognition and
enforcement of foreign arbitral awards. “[I]t is necessary to clarify that, although the
Convention's title only mentions recognition and enforcement of arbitral awards, an
important part of the Convention deals with the recognition and enforcement of
arbitration agreements.” ( 23 ) Having the same view, Van den Berg asserts that “the New
York Convention is in essence limited to two aspects of international commercial
arbitration: the enforcement of those arbitration agreements which come within its
purview.” ( 24 )
The inclusion of the provision on recognition and enforcement of arbitration agreements
is derived from the crucial role of the arbitration agreement in the arbitration regime. (
25 ) Therefore, the Convention would not have been complete and would have had
difficulties in practical application if Article 2 had not been included. That was also the
reason why the intention of providing for the recognition and enforcement of arbitration
agreements in a separate Protocol was changed and Article 2 was inserted at the last
minute of the drafting process. ( 26 )
The CPC continues to be silent on the question of recognition and enforcement of
arbitration agreements, which had already been a notable shortcoming of the Foreign
Arbitral Awards Ordinance. Like its predecessor, the CPC does not contain a provision
implementing Article 2(3) of the New York Convention, which directs courts at the request
P 492 of one of the parties to “refer the parties to arbitration” ( 27 ) in instances when a valid
arbitration agreement exists. The reason for this silence is unclear and could possibly be
the result of careless drafting.

B Cumbersome procedure for recognition and enforcement of foreign awards

1 CPC Procedure
Before examining the problems of the foreign arbitral awards provisions of the CPC, it is
necessary to summarize the procedure. The procedure for recognition and enforcement
of foreign arbitral awards is provided quite clearly and comprehensively in Chapter 29 of
the CPC. The procedure consists of the following stages. First, a request for recognition
and enforcement and relevant documents is sent to the Ministry of Justice, ( 28 ) which
must then send the request and the enclosed documents to the competent Provincial
People's Court ( 29 ) within seven days from the date of receipt of the request and the
lawful enclosed documents. ( 30 ) On receiving the request, the People's Court must notify
the parties against whom the enforcement is sought and prepare for the hearings. ( 31 )
The competent Provincial People's Court hears the case. ( 32 ) The court may recognize
the foreign arbitral award or set it aside based on the grounds provided in Article 370.
In the event the applicant or the party (or parties) against whom the enforcement is
sought appeals the decision of the Provincial People's Court, the Supreme People's Court
will hear the appeal. The Supreme People's Court will also hear the appeal if the decision
of the Provincial People's Court is objected to by the local Provincial People's Procuracy
or the Supreme People's Procuracy, as the case may be. The decision of the Supreme
People's Court is final and binding. ( 33 )
The decision of the Provincial People's Court (or of the Supreme People's Court, in the
case of an appeal) will be implemented by the provincial authority vested with enforcing
civil judgments. ( 34 ) The detailed implementation procedure is provided in the
Ordinance on Enforcement of Civil Judgments. ( 35 )
P 493

2 A Cumbersome Procedure
Regardless of its detail, the procedure stipulated by the foreign arbitral awards
provisions of the CPC is cumbersome due to certain unnecessary and inappropriate
provisions. This can be seen in the redundant first stage of the procedure and the
intrusive role of the People's Procuracies in certain stages of the procedure.
a Lodging the request
The CPC provision requiring requests to be lodged with the Ministry of Justice is
redundant, entailing that the request cannot be lodged directly to the competent court.
This is a circuitous requirement, which the CPC would be better off without. Were it
simply omitted, the legislation could conceivably allow for requests to be lodged directly
with the competent court because the provision for “what is a competent court” is clearly
stipulated in Articles 34(1)(b) and 35(2)(e). These articles provide that the court which has
jurisdiction to consider a request for recognition and enforcement of a foreign arbitral
award in Vietnam shall be the People's Court of the province or the city under central
authority: (i) in which the head office of the organization against which the enforcement is
sought is located; (ii) in which the individual against whom the enforcement is sought
permanently resides or works; or (iii) in which the relevant assets are located.
Like its predecessor, the CPC continues to be silent on the solution to resolve a conflict of
jurisdiction that may arise between provincial courts. Conflict of jurisdiction arises in
cases where the individual or organization against whom the enforcement is sought has,

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 for instance, both the head office or domicile and assets in Vietnam, but with each in
different provinces. In this case, does the Ministry of Justice have to consult with the
Supreme People's Court to decide which Provincial People's Court has competence over
the matter? If the request were lodged with the Provincial People's Court directly, the
problem would be easily resolved; the Supreme People's Court would have the
competence to decide. This is what existing civil and economic procedure provides for. (
36 )
b Role of Procuracies
The second problem in the procedure for recognition and enforcement of foreign arbitral
awards is the exaggerated role of the People's Procuracies. The existing procedure
engenders unnecessary participation of both the Provincial and Supreme People's
Procuracy in some aspects of the procedure. ( 37 ) For instance, within seven days of
making a decision to hear a request for recognition and enforcement, the competent
Provincial People's Court is required to send the file relating to the request to the local
P 494 Provincial People's Procuracy. ( 38 ) Furthermore, a procurator of the Provincial
People's Procuracy is required be present at the hearing. In the event that the procurator
is absent, the hearing must be postponed. ( 39 ) The provincial court or Supreme Court
must also forward a copy of its decision to the corresponding Procuracy, ( 40 ) which is
entitled to object to that decision on its own initiative. ( 41 )
In order to understand the provisions of the CPC regarding the participation of the
Procuracies in the procedure for recognition and enforcement of foreign arbitral awards,
the functions of this legal institution need first be examined. The Procuracy is a typically
socialist institution. ( 42 ) Because of this, its role and function in the socialist legal
system may be unfamiliar to Western legal scholars. Like other socialist countries (e.g.,
the People's Republic of China), it is clear that the model of the Procuracies in the
Vietnamese legal system was transplanted from the former Soviet Union. ( 43 ) “The
procuracy is very much a Russian institution.” ( 44 )
The system of the People's Procuracies was established in Vietnam after the adoption of
the 1959 Constitution. Until 2001, the Procuracies had two main functions: general
supervision (chuc nang kiem sat chung) and state prosecuting (thuc hanh quyen cong to).
Their supervisory role extended to ministries; ministerial-level organs; (local)
governmental, economic and social agencies; and citizens in their conformity to the law. (
45 ) Their secondary role was to act as prosecutors on behalf of the state. ( 46 )
The amendment of the 1992 Constitution in 2001 saw the general supervisory function of
the People's Procuracies largely rescinded. Presently, Procuracies are now limited to
supervising judicial activities, including the activities of courts. ( 47 ) The role of the
People's Procuracies’ participation in civil proceedings is to ensure that the courts
conform to the law. In other words, the People's Procuracies participate as supervisors
alone. This differs from criminal proceedings, where the People's Procuracies are both
supervisors and prosecutors.
It is this author's opinion that the People's Procuracies should avoid excessive
intervention in the procedure for recognition and enforcement of foreign arbitral awards,
especially with respect to matters related to the parties’ interests. Recognition and
enforcement of foreign arbitral awards is a civil procedure belonging in the realm of
private law, as opposed to public law, under which criminal law could be classified.
P 495 Moreover, because requests for recognition and enforcement by non-state entities
arise out of private interests, the foreign arbitral awards provisions of the CPC would
better serve to ensure that the state's participation in that procedure is as limited as
possible.
The mandatory participation of a procurator from the Provincial People's Procuracy in
recognition and enforcement proceedings under Articles 369(2) and 372(2) of the CPC
speaks to the high level of state intrusiveness that has been written into the code. This
provision is simply inappropriate. Because a procurator's absence forces postponement
of the hearings related to the request, the interest of the parties stands to suffer in such
circumstances. Postponement draws out the hearing phase unnecessarily and thus wastes
parties’ time.
Article 372(2) allows for yet another level of inappropriate involvement in the
proceedings on the part of the People's Procuracies. This provision grants Provincial and
Supreme People's Procuracies alike the prerogative to object to the Provincial People's
Court's decisions. This provision is broadly written and thus very vague. As a result, the
objection of the People's Procuracy is subject to misuse at the expense of the parties’
lawful interests.
A useful amendment to that particular provision would specify and clarify the grounds on
which a Procuracy could object to a court's decision. Reforms in that vein, however, could
continue to allow for objection in cases where the Procuracy is of the opinion that the
court's application of law contravenes public interests. For example, were the court to
recognize an award in spite of the inarbitrability of the subject matter of the dispute or
when recognition would be contrary to public policy, the Procuracies could in such cases
be empowered to raise an objection on their own initiative. But, in other cases, the
Procuracy would be limited to using its power of objection only with the approval of the

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 parties, such as when the Procuracy is of the opinion that the court has erred in its
application of the law or when its decision is considered to intrude on the parties’
interests.
3 Inappropriate Definition of a Foreign Arbitral Award
The Foreign Arbitral Awards Ordinance defined foreign arbitral awards in Article 1. This
article consisted of two paragraphs. In the first paragraph, a foreign arbitral award was
defined as an award made outside of the territory of Vietnam, a definition similar to that
found in the New York Convention. ( 48 ) A supplementary definition was provided in the
second paragraph which, in its entirety, stated that “[a] foreign arbitral award shall
include an award made within the territory of Vietnam by an arbitrator/arbitrators ( 49 )
other than Vietnamese ones.”
P 496
The second paragraph qualifies foreign awards based on the nationality of the
arbitrator(s). This provision proves highly troublesome because, in practice, defining the
nationality of arbitrator(s) it is not always a simple matter. For instance, where an
arbitral award is made by an ad hoc or institutional tribunal consisting of more than one
arbitrator and at least one of whom is non-Vietnamese, it is impossible to use the
nationality of one arbitrator to define the nationality of the whole tribunal. Thus, it is
impossible to define whether the award is foreign or domestic.
Article 342(2) of the CPC defines a foreign arbitral award as “an award made outside or
within the territory of Vietnam by … foreign arbitrator(s) who have been appointed by the
disputing parties’ agreement in order to resolve disputes arising from commercial or
labour legal relationship.” ( 50 ) This provision refers only to the nationality of arbitrators
to define a foreign arbitral award, without mention of the territorial factor that is written
into the New York Convention. According to this provision, an arbitral award is considered
foreign if it is made by “foreign arbitrator(s),” regardless of whether the award is made
inside or outside the territory of Vietnam. As a result, an award made by Vietnamese
arbitrators outside the territory of Vietnam will be considered domestic under the CPC.
Given the problematic nature of using the nationality of arbitrators as the basis to define
a foreign arbitral award, the departure of Article 342(2) of the CPC from Article 1 of the
Foreign Arbitral Awards Ordinance is simply a move “from bad to worse.”

IV Problems of Other National Laws

National laws which do not directly govern arbitration also play an important role in the
legal framework for recognition and enforcement of foreign arbitral awards. Such “other”
relevant laws in Vietnam, however, are likewise unfavourable for that legal framework.
This was clearly evident in the period prior to the enactment of the Commercial
Arbitration Ordinance. However, because it is lacking many necessary provisions, the
enactment of the Commercial Arbitration Ordinance has not resolved that problem
comprehensively.
The problems stemming from “other” relevant laws differed in the periods of time before
and after the enactment of the Commercial Arbitration Ordinance. It is useful, therefore,
to examine the problems from both perspectives, pre- and post-July 1, 2003, the date on
which the Commercial Arbitration Ordinance entered into force.

A Pre-July 1, 2003
When the Foreign Arbitral Awards Ordinance was enacted in 1995, arbitration laws in
Vietnam were underdeveloped, characterized by cursory and contradictory provisions. At
P 497 that time, the arbitration regime was provided by subordinate legislation — Decree
116/CP on Organisation and Operation of Economic Arbitration (“Decree 116/CP”). ( 51 )
Decree 116/CP was the first legal document in socialist Vietnam dealing with arbitration
in the true sense of the word — a voluntary and private form of dispute resolution. ( 52 )
Decree 116/CP, however, had many shortcomings.
Decree 116/CP contained no provisions relating to arbitration agreements, a serious
shortcoming since the arbitration agreement plays a crucial role in the arbitration
process. Moreover, were such an agreement to refer to Vietnamese law, the court would
have had no provisions to which to refer on matters relevant to the validity of the
arbitration agreement or the capacity of the party to enter into the arbitration
agreement during the recognition and enforcement process prescribed in the Foreign
Arbitral Awards Ordinance, let alone the matter of setting aside the award.
Also, Decree 116/CP was silent on the question of arbitrability. The resulting negative
impact on the legal framework for recognition and enforcement was akin to and only
exacerbated the negative impact suffered by the absence of provisions on the arbitration
agreement.
The Law on Commerce, ( 53 ) another such “other” piece of relevant legislation, presents
yet another serious problem in its narrow definition of “a commercial activity.” Like other
states party to the New York Convention, Vietnam maintains a commercial reservation. It
invokes Article 1(3) of the Convention, declaring that it will apply the Convention only to
differences arising out of legal relationships that are considered commercial and that,

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 moreover, the interpretation of the Convention before Vietnamese courts or other
competent bodies shall be in accord with the Vietnamese Constitution and Vietnamese
laws. ( 54 ) The Law on Commerce, however, assigns “commerce” a very narrow definition.
The Law on Commerce makes a distinction between “a commercial activity” and “a
commercial act.” According to Article 5(2), “a commercial activity means the undertaking
of one or more commercial acts by a merchant, including the purchase and sale of goods,
provision of commercial services, and activities for promoting commerce for a profitable
purpose or for the purpose of implementing socio-economic policies.” ( 55 ) A commercial
act, on the other hand, is defined as “an act of a merchant in commercial activity that
gives rise to rights and obligations among merchants, or among merchants and relevant
parties.” ( 56 ) Article 45 of the Law on Commerce concretizes this definition by
enumerating fourteen commercial acts: sale and purchase of goods; representation of
P 498 business entities; commercial brokerage; sale and purchase of goods by authorized
dealers; sale and purchase of goods by agents; commercial processing; auction of goods;
tendering of goods; goods delivery service; goods assessment service; promotion;
commercial advertising; display of goods; trade fairs and exhibitions.
Thus the term “commerce” in the Law on Commerce is defined, narrowly, as the sale and
purchase of goods. The other commercial acts merely serve this central act since the
remaining thirteen acts are defined as either commercial services (services related to
the sale and purchase of goods) ( 57 ) or commercial promotion (an activity aimed at
seeking and enhancing opportunities for sale and purchase of goods or provision of
commercial services). ( 58 ) The definition excludes many activities which have a
commercial nature such as financing, investment, banking, construction, engineering,
licensing and carriage of goods or passengers by air, sea, rail or road. It clearly makes
Vietnamese law contrary to international custom.
This narrow and inappropriate definition has, in practice, been troublesome. In one
appellate case, the Supreme People's Court decided on January 21, 2003 not to recognise
two arbitral awards worth US$2.2 million granted in April 2000 by arbitrators in
Queensland, Australia. ( 59 ) This was the first recognition and enforcement case in
Vietnamese courts since Vietnam launched the “open door” policy in 1986 and enacted
the Foreign Arbitral Awards Ordinance in 1995. ( 60 )
The court held that there was no “commercial relationship” between Tyco and Leighton —
the disputing parties — on the grounds that their construction contract did not meet the
definition of a “commercial act” as required by Article 45 of the Law on Commerce. ( 61 )
The court based this decision on Article 16(2)(b) of the Foreign Arbitral Awards Ordinance,
citing that the recognition and enforcement of the awards would be contrary to the basic
principles of Vietnamese law. It is worth noting that the Ho Chi Minh City People's Court,
the court of first instance, had recognised the two arbitral awards in this case in 2002. ( 62
) Moreover, the facts of the case show that the construction contract was clearly
commercial in nature. In 1992, Tyco Services of Singapore, a subsidiary of U.S. giant Tyco
International, entered a consortium agreement with Hai Van Thiess Construction and
Consulting (now known as Leighton Contractors of Australia) relating to the construction of
the Furama Hotel in Danang, a city in central Vietnam. ( 63 ) With respect to the subjects
and purpose of the contract, the commercial nature was satisfied since the contract was
P 499 signed between business organizations and it was for business purpose. However, the
awards were not recognized due to the inappropriate definition of “commercial
activities” in the Law on Commerce.

B Post-July 1, 2003
The enactment of the Commercial Arbitration Ordinance reflects a milestone in the
development of the law on commercial arbitration in Vietnam. It rectified the
shortcomings of the arbitration regime regulated by Decree 116/CP. ( 64 ) Because it
adapted the Model Law on International Commercial Arbitration of the United Nations
Commission on International Trade Law (“UNCITRAL Model Law”), ( 65 ) the Commercial
Arbitration Ordinance also brought the law governing commercial arbitration in Vietnam
into conformity with international standards. It ushered in a dual regime on arbitration,
dealing with both domestic and international arbitration.
The Commercial Arbitration Ordinance provides comprehensive provisions on many
points that were absent from Decree 116/CP, such as provisions relating to the arbitration
agreement. It devotes its second chapter to arbitration agreements, providing for: (i) the
clear requirement for a written arbitration agreement; (ii) six instances where an
arbitration agreement would become invalid; and (iii) the independent validity of an
arbitration clause to a contract. Articles 3 and 5 recognize the important role of an
arbitration agreement, with Article 3 providing principles for resolving disputes by
arbitration. In its entirety, Article 3 reads as follows:
1. A dispute may be resolved by arbitration if prior to or after the occurrence
of the dispute the parties have an arbitration agreement.
2. In resolving a dispute, the arbitrator[s] must be independent, objective,
impartial, [and] must base themselves on the laws and respect the agreement
of the parties. ( 66 )

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 Article 5 provides for jurisdiction to resolve disputes when an arbitration agreement
exists: “In the event that there already exists an arbitration agreement for a dispute [and]
if a party files suit [on it] to a court, the court must refuse to accept [it], except where the
arbitration agreement is invalid.” ( 67 )
By introducing comprehensive provisions on arbitration agreements, the Commercial
Arbitration Ordinance has rectified one of the main flaws of Decree 116/CP. It does not,
however, resolve the shortcomings of the previous legislation completely. Two main
problems related to other relevant laws still exist following the enactment of the
Commercial Arbitration Ordinance. First, the Commercial Arbitration Ordinance does not
address the question of arbitrability of commercial activities. The reason the legislation
leaves this deficiency unrectified is unknown, but is possibly linked to the complicated
and controversial nature of the issue of arbitrability. Regrettably, it is commonplace
P 500 in law-making in Vietnam to leave controversial issues ignored and unanswered.
It seems, however, that in order to “compensate” for the lack of provisions on
arbitrability, the Commercial Arbitration Ordinance provides for a definition of
“arbitration.” It defines arbitration as “a method for resolving disputes that arise during
the course of commercial activity as agreed upon by the parties, and conducted in
accordance with the formalities [and] procedures provided for in this Ordinance.” ( 68 )
This is also a point on which the Commercial Arbitration Ordinance and the UNCITRAL
Model Law differ, let alone “most conventions and national laws on arbitration,” ( 69 )
which do not define the term “arbitration” but merely clarify it. ( 70 )
By defining “arbitration,” the Commercial Arbitration Ordinance makes two
qualifications:
(i) it does not cover all kinds of arbitration, but, as its name would indicate, only
commercial arbitration since it provides that arbitration in the Commercial
Arbitration Ordinance is a mode of dispute resolution for “disputes that arise during
the course of commercial activity”; ( 71 )
(ii) it does not cover compulsory arbitration, providing only for arbitration “as agreed
upon by the parties.” ( 72 ) This signifies that its application extends exclusively to
“consensual arbitration, i.e. arbitration based on voluntary agreement of the
parties.” ( 73 )
Because of the definition of “arbitration,” disputes arising out of family law and
administrative law are not arbitrable because of the first qualification the definition
makes.
However, it is plain that the lack of a clear definition of “arbitrability” makes it difficult
for the courts when they apply Article 370 of the CPC — a counterpart of Article 5(2)(a) of
the New York Convention — which provides for setting aside a foreign arbitral award
based on the matter of non-arbitrability:
2. A foreign arbitral award shall not be recognised and enforced in Vietnam
where it is deemed by the court that
(a) The relevant dispute cannot be resolved by arbitration in accordance
with the law of Vietnam. ( 74 )
Secondly, there is a contradiction between the definition of “a commercial activity” in
the Commercial Arbitration Ordinance and the Law on Commerce. The Commercial
P 501 Arbitration Ordinance defines “a commercial activity” in Article 2(3) as follows:

“A commercial activity” means the undertaking of one or more commercial

acts by a business organisation or individual, including the purchase and sale
of goods; provision of services; distribution; commercial representation [or]
agency; consignment; leasing [or] leasing out; leasing with option to purchase;
construction; consulting; engineering; licensing; investment; financing;
banking; insurance; [natural resources] exploration [or] exploitation; carriage
of goods [or] passengers by air, sea, rail [or] road; and other commercial acts
in accordance with the provisions of law. ( 75 )
This definition conforms to that of the UNCITRAL Model Law because the subject is given
“a wide interpretation so as to cover matters arising from all relationships of a
commercial nature, whether contractual or not.” ( 76 )
Clearly, the definition of “a commercial activity” in the Commercial Arbitration Ordinance
is much broader than that in the Law on Commerce. Therefore, a question on the legal
validity of the Commercial Arbitration Ordinance's definition arises here. In the system of
forms of legislation of Vietnam, in terms of legal validity, ordinances — which are
promulgated by the Standing Committee of the National Assembly — are lower than the
forms of legislation enacted by the National Assembly, namely laws and resolutions. ( 77 )
As a law enacted by the National Assembly, the Law on Commerce has a higher legal
validity than the Commercial Arbitration Ordinance. The Law on Enactment of Laws
provides that “in the case different forms of legislation have different provisions on the
same issue, the form of legislation which has a higher legal validity shall prevail.” ( 78 )
This means that on the issue of the definition of “a commercial activity,” the definition of

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 the Law on Commerce prevails over that of the Commercial Arbitration Ordinance. The
introduction of the definition of “a commercial activity” in the Commercial Arbitration
Ordinance thus does not resolve the problem that the narrow definition in the Law on
Commerce has caused, but serves only to complicate matters.
Article 29 of the CPC offers something of a solution, however. Article 29 provides for
business and commercial disputes (nhung tranh chap ve kinh doanh, thuong mai) falling
within courts’ jurisdiction. Business and commercial activities listed in Article 29(1) of the
CPC ( 79 ) are similar to those in Article 2(3) of the Commercial Arbitration Ordinance.
Therefore, we may argue that Article 29(1) of the CPC indirectly defines “commercial
activities” and according to Article 80(3) of the Law on Enactment of Laws, that definition
prevails over the definition of “a commercial activity” in Article 5(2) of the Law on
Commerce. ( 80 )
P 502

V Solutions
A Foreign arbitral awards provisions of the CPC
The CPC has only very recently come into effect, so it is impractical to propose that the
foreign arbitral awards provisions of the CPC should be amended. A more practical way is,
possibly, to resort to Article 2(3) of the CPC and indirectly, the New York Convention.
Article 2(3) of the CPC provides that “in the event that there is any difference between the
provisions of the CPC and those of a treaty Vietnam has signed or acceded to, the
provisions of such treaty shall prevail.” Article 2(3) of the CPC — and effectively the New
York Convention ultimately — can thus be employed to “correct” the lack of provisions on
recognizing and enforcing an arbitration agreement and Article 370(1) of the CPC, which
ignores the requirement that the grounds for refusal be proved by the respondent. In the
same way, we can rectify the inappropriateness of the definition of a foreign arbitral
award provided in Article 342(2) of the CPC. With respect to the cumbersome procedure,
however, the Convention is of no help; Article 3 of the New York Convention refers that
issue to the law of the enforcing state. ( 81 )
However, utilising Article 2(3) of the CPC is not without its uncertainties. It is unclear how
the “differences” between the provisions of the CPC and those of a treaty Vietnam has
signed or acceded to can be understood. ( 82 ) Moreover, the opinion exists that even if a
provision of a treaty to which Vietnam is a party prevails over an inconsistent provision of
domestic law, appropriate changes to such domestic provision are still required. ( 83 )
With respect to the problems of the cumbersome procedure for recognizing and enforcing
foreign arbitral awards (i.e., the redundant stage of lodging the request with the Ministry
of Justice and the intruding role of the People's Procuracies), the probable amendments
are proposed above. However, the exaggerated role of the People's Procuracies in the
procedure for recognizing and enforcing foreign arbitral awards is a “product” of an
ideology in which the state intervenes in every aspect of civil society; and in the
relationship between the state's interests and those of citizens, those of the state always
prevail. Therefore, an amendment to that provision is not simply a matter of changing the
wording of part of the code; it would require a change in legislative thinking.
P 503

B Other relevant laws

The Law on Commerce has been comprehensively amended. ( 84 ) This amendment is
expected to create a favourable condition not only for the legal framework of recognition
and enforcement of foreign arbitral awards, but also for commercial activities in general.
When entering into force, the broad definition of “a commercial activity of the new Law
on Commerce” ( 85 ) will resolve the contradiction between the definition of “a
commercial activity” of the current Law on Commerce and that of the Commercial
Arbitration Ordinance. With respect to a solution to the lack of a provision on
arbitrability in the Commercial Arbitration Ordinance, however, we may have to wait
until the Commercial Arbitration Ordinance is “upgraded” to a law.

VI Conclusion
The legal framework for recognition and enforcement of foreign arbitral awards in
Vietnam is unfavourable. Although the CPC sets forth a detailed procedure of recognition
and enforcement of foreign arbitral awards at Vietnamese courts, that procedure is
cumbersome. The requirement for requests for recognition and enforcement of a foreign
arbitral award to be lodged with the Ministry of Justice is redundant. The provisions on
the participation of the People's Procuracies in the procedure are vague and
inappropriate as the parties’ interests may be intruded on by the misuse of power on the
part of the People's Procuracies. Moreover, the CPC lacks a provision on recognition and
enforcement of the arbitration agreement. The definition of a “foreign arbitral award” of
the CPC needs amending as it may prove troublesome in practice.
A solution to some of the above problems (i.e., lack of a provision on recognition and

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 enforcement of the arbitration agreement and an inappropriate definition of a foreign
arbitral award) is, perhaps, to resort to Article 2(3) of the CPC. This Article allows for the
New York Convention to prevail over the inconsistent provisions of the implementing
legislation. However, making such resort may also prove uncertain if the New York
Convention is not considered self-executing. Clearly, then, appropriate changes to the
inconsistency of the domestic legislation are still required. With respect to the problem
of the cumbersome procedure, changes in the wording of the legislation, but also in
legislative thinking, need to be attained.
Other relevant laws also have many shortcomings. Although the Commercial Arbitration
Ordinance marks the turning point in the development of Vietnamese arbitration law, it
is silent on the question of arbitrability. Moreover, the narrow definition of “a commercial
activity” in the Law on Commerce is contrary to international commercial custom and has
been the source of interference in proceedings for recognition and enforcement of foreign
arbitral awards. The new Law on Commerce, with its broad definition of “a commercial
P 503 activity,” is thus a welcome solution.

References
*) Associate, YKVN Lawyers (Vietnam); LL.B., 1998, Hanoi Law School (Vietnam); Master of
Commercial Law, 2004, University of Melbourne (Australia). The author would like to
thank Professor Allen Snyder of the University of San Diego and Dr. Pip Nicholson of
the University of Melbourne for their support in connection with this article.
1) United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards, June 10, 1958, 330 U.N.T.S. 38, 7 I.L.M. 1046 (1968) [hereinafter New York
Convention]. Vietnam acceded to the New York Convention on September 12, 1995 by
Order (Lenh) 453/QD-CTN of the State President of Vietnam, July 28, 1995. The date of
effect of the accession was December 11, 1995. See United Nations Commission on
International Trade Law (UNCITRAL), Status of Conventions and Model Laws, available
at <www.uncitral.org/en-index.htm> (visited July 27, 2005).
2) Ordinance on Recognition and Enforcement of Foreign Arbitral Awards in Vietnam
(Phap Lenh Cong Nhan Va Thi Hanh Tai Viet Nam Quyet Dinh Cua Trong Tai Nuoc Ngoai),
S.C.N.A., September 14, 1995, entered into force on January 1, 1996 [hereinafter
“Foreign Arbitral Awards Ordinance”]. The Foreign Arbitral Awards Ordinance, and
other Vietnamese legislation mentioned in this article, are available in Vietnamese at
the subscription-required website Co So Du Lieu Luat Viet Nam (Vietnamese Law
Database) <www.luatvietnam.com.vn>. An English version of the Foreign Arbitral
Awards Ordinance is available at <www.gsid.nagoya-
u.ac.jp/project/apec/lawdb/vietnam/dispute/ord-en.html> (visited September 6,
2005).
3) Civil Procedure Code (Bo Luat To Tung Dan Su), N.A., June 15, 2004, entered into force
on January 1, 2005 [hereinafter “CPC”]. See also National Assembly Resolution on
Implementing the Civil Procedure Code, 32/2004/QH11, June 15, 2004, para. 1.
4) In terms of legal validity, ordinances (Phap Lenh), which are promulgated by the
Standing Committee of the National Assembly (S.C.N.A.), are subordinate to laws
(Luat), including codes (Bo Luat), which are enacted by the National Assembly (N.A.).
See Law on the Enactment of Laws (Luat Ban Hanh Van Ban Quy Pham Phap Luat), N.A.,
November 12, 1996, arts. 13(3) and 81(2), amended on December 16, 2002. (Laws and
codes in the Vietnamese legal system are equivalent to Acts or statutes in the
common law legal systems. The Law on the Enactment of Laws provides for the
procedure for enacting legislation including statutes and subordinate legislation of
central authorities. Its title can be otherwise translated as “Law on Promulgation of
Legal Documents” or “Law on Promulgation of Normative Legal Documents”). For the
hierarchy of legislation in Vietnam, see Le Cong Dinh, Arbitration in Vietnam, 11 W. Arb.
& Med. Rep. 164, 166 (2000); Phuong Khanh Nguyen, How to Conduct Research in
Vietnamese Law: Overview of the Legal System of the Socialist Republic of Vietnam, 27
Int'l J. Legal Information 307, 313–16 (No. 3, 1999).
5) Ordinance on Commercial Arbitration (Phap Lenh Trong Tai Thuong Mai), S.C.N.A.,
February 25, 2003, entered into force on July 1, 2003.
6) Howard M. Holtzmann & Joseph E. Neuhaus, A Guide to the UNCITRAL Model Law on
International Commercial Arbitration: Legislative History and Commentary 8 (1989).
7) Id.
8) Albert Jan van den Berg, The New York Arbitration Convention of 1958: Towards a
Uniform Judicial Interpretation 1 (1981).
9) See UNCITRAL, Status of Conventions and Model Laws, available at
<www.uncitral.org/en-index.htm> (visited July 27, 2005).
)10 Holtzmann & Neuhaus, supra note 6, at 7.
)
11 Id. at 8.
)
12 Alan Redfern & Martin Hunter, Law and Practice of International Commercial
Arbitration 452–53 (3d ed. 1999) (emphasis added).
)13 New York Convention, supra note 1, art. 5(2)(a)–(b).
)
14 Holtzmann & Neuhaus, supra note 6, at 8.

9
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 ) Recognition and enforcement of the award may be refused if: “the [arbitration]
15
agreement is not valid under the law to which the parties have subjected it or, failing
any indication thereon, under the law of the country where the award was made”. New
York Convention, supra note 1, art. 5(1)(a); “[t]he composition of the arbitral authority
or the arbitral procedure was not in accordance with the agreement of the parties, or,
failing such agreement, was not in accordance with the law of the country where the
arbitration took place”. Id. art. 5(1)(d); “[t]he award has not yet become binding on the
parties, or has been set aside or suspended by a competent authority of the country
in which, or under the law of which, that award was made”. Id. art. 5(1)(e).
)
16 Recognition and enforcement of the award may be refused if: “[t]he parties to the
[arbitration] agreement … were, under the law applicable to them, under some
incapacity”. Id. art. 5(1)(a); “the [arbitration] agreement … is not valid under the law to
which the parties have subjected it”. Id.
)
17 Cf. Foreign Arbitral Awards Ordinance, supra note 2, art. 1; CPC, supra note 3, art.
342(2).
)
18 Cf. Foreign Arbitral Awards Ordinance, supra note 2, art. 16(1); CPC, supra note 3, art.
370(1).
)19 See IV, infra.
)
20 “Recognition and enforcement of the award may be refused, at the request of the
party against whom it is invoked, only if that party furnishes to the competent
authority where the recognition and enforcement is sought, proof that. …” New York
Convention, supra note 1, art. 5(1).
)21 Van den Berg, supra note 8, at 264.
)
22 See id. at 264–69.
)
23 Domenico Di Pietro & Martin Platte, Enforcement of International Commercial
Arbitration Awards: The New York Convention of 1958 22 (2001).
)24 Van den Berg, supra note 8, at 10.
)
25 For more detailed discussion on the role of an arbitration agreement, see Redfern &
Hunter, supra note 12, at 4–8.
)26 Van den Berg, supra note 8, at 56.
)
27 New York Convention, supra note 1, art. 2(3).
)
28 CPC, supra note 3, arts. 364–365.
)
29 Id. art. 366. The court system in Vietnam has three tiers. The Supreme People's Court
is the highest court. Local courts, including Provincial and District People's Courts, are
organised correlatively with the division of administrative units. Administratively, the
whole country is divided into provinces (Tinh) and cities under central authority
(Thanh Pho Truc Thuoc Trung Uong). 1992 Constitution, art. 118 (Vietnam). Each
province is divided into towns (Thi Xa), rural districts (Huyen), and cities under
provincial authority (Thanh Pho Thuoc Tinh); each city under central authority is
divided into urban districts (Quan), rural districts and towns. Id. People's Courts of
provinces and cities under central authority are collectively called “Provincial
People's Courts.” People's Courts of rural districts, urban districts, towns and cities
under provincial authority are collectively called “District People's Courts.” See id.,
art. 134; see also Law on Organisation of the People's Courts, October 6, 1992. (This Law
has been replaced with a new law: Law 33/2002/QH10 of the National Assembly on
Organisation of People's Courts, April 2, 2002).
)30 CPC, supra note 3, art. 366.
)
31 Id. arts. 367–368.
)
32 Id. art. 369.
)
33 Id. arts. 372–373.
)
34 Id. arts. 375(1)(d) and 381(2).
)
35 Ordinance on Enforcement of Civil Judgments (Phap Lenh Thi Hanh An Dan Su), S.C.N.A.,
Ordinance 13/2004/PL-UBTVQH11, January 14, 2004, entered into force on July 1, 2004.
)36 See CPC, supra note 3, art. 37(3).
)
37 The organisation of the procuracies (Vien Kiem Sat Nhan Dan) is similar to that of the
courts see supra note 29. The name of the People's Procuracy can be translated word-
for-word elsewhere as the “people's office of supervision and control.”
)38 CPC, supra note 3, art. 368(2).
)
39 Id. art. 369(2).
)
40 Id. art. 371.
)
41 Id. art. 372(2).
)
42 For a comprehensive analysis of this institution, see Gordon B. Smith, The Soviet
Procuracy and the Supervision of Administration (1978).
)
43 For the influence of the Soviet Union on the Vietnamese legal system, see Per Bergling,
Legal Reform and Private Enterprise: The Vietnamese Experience 53 (1999).
)44 W.E. Butler, Soviet Law 101 (1983).
)
45 See successive Laws on Organisation of People's Procuracies (Luat To Chuc Vien Kiem
Sat Nhan Dan), N.A., art. 1, 1960 repealed in 1981 repealed in 1992.
)46 Id.
)
47 Resolution of the National Assembly 51/2001/QH10 dated December 25, 2001 on
Amending Some Articles of the 1992 Constitution, para. 23. See also Law on
Organisation of People's Procuracies No. 34/2002/QH10, N.A., April 2, 2002, art. 1.

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 ) “This Convention shall apply to the recognition and enforcement of arbitral awards
48
made in the territory of a State other than the State where the recognition and
enforcement of such awards are sought.” New York Convention, supra note 1, art. 1(1).
)
49 The word “trong tai” in the original text can be translated as “arbitration” and
“arbitrator(s).” In the context of this provision, the author's conclusion is that the
drafters meant “arbitrator(s).”
)50 CPC, supra note 3, art. 342(2) (emphasis added).
)
51 Central Executive Government Decree 116/CP on Organisation and Operation of
Economic Arbitration, September 5, 1994 [hereinafter “Decree 116/CP”].
)
52 Before July 1, 1994, Vietnam had a system called “state economic arbitration.” The
system was part of the administrative system. Its function was to administer and
supervise economic contracts — a tool to implement the state's economic plans in
the command economy. The system was abolished as of July 1, 1994.
)
53 Law on Commerce (Luat Thuong Mai), N.A., May 10, 1997. This legislation is also
translated as “Commercial Law.” In the author's opinion, the name “Commercial Law”
does not reflect the content of this Law, as the concept “commerce” is narrowly
defined. Moreover, that translation makes it easy to confuse this Law with a body of
law — commercial law — as opposed to other bodies of law such as civil law or
criminal law.
)
54 Order 453/QD-CTN of the State President of Vietnam, July 28, 1995, art. 2(2) and (3);
supra note 1.
)55 Law on Commerce, art. 5(2).
)
56 Id. art. 5(1) (emphasis added).
)
57 Id. art. 5(4).
)
58 Id. art. 5(5).
)
59 Court Flip-Flops in Vietnam, Far Eastern Econ. Rev. (February 6, 2003), available at
<www.feer.com>.
)
60 Truong Nhat Quang, Foreign Arbitral Awards: Court Ruling Sets Precedent, Vietnam
Economic Times, December 31, 2002, available at <www.vneconomy.com.vn>.
)
61 For the details of this case, see “Commercial Act” Decision Criticised, Vietnam Economic
Times, March 18, 2003, available at <www.vneconomy.com.vn/eng/index.php?
param=article&catid=04&id=030318100257>; Truong Nhat Quang, supra note 60.
)62 “Commercial Act” Decision Criticised, supra note 61; Truong Nhat Quang, supra note 60.
)
63 “Commercial Act” Decision Criticised, supra note 61; Truong Nhat Quang, supra note 60.
)
64 Decree 116/CP ceased to exist when the Arbitration Ordinance came into effect on July
1, 2003. See Ordinance on Commercial Arbitration, supra note 5, art. 62(2)(a).
)
65 U.N. Doc. A/40/17, Annex I, adopted by the United Nations Commission on
International Trade Law on June 21, 1985, reprinted in 24 I.L.M. 1302 (1985) [hereinafter
“UNCITRAL Model Law”].
)66 Ordinance on Commercial Arbitration, supra note 5, art. 3.
)
67 Id. art. 5.
)
68 Id. art. 2(1).
)
69 Peter Binder, International Commercial Arbitration in UNCITRAL Model Law
Jurisdictions: An International Comparison of the UNCITRAL Model Law on
International Commercial Arbitration 24 (2000).
)70 Id.
)
71 Ordinance on Commercial Arbitration, supra note 5, art. 2(1).
)
72 Id.
)
73 Binder, supra note 69, at 25.
)
74 CPC, supra note 3, art. 370.
)
75 Ordinance on Commercial Arbitration, supra note 5, art. 2(3).
)
76 UNCITRAL Model Law, supra note 65, art. 1(1) n.**.
)
77 For the hierarchy of legislation in Vietnam, see supra note 4.
)
78 Law on Enactment of Laws, N.A., November 12, 1996, amended on December 16, 2002,
art. 80(2).
)
79 Art. 29(1) of the CPC lists the following business and commercial activities: purchase
and sale of goods; provision of services; distribution; [commercial] representation
[and/or] agency; consignment; leasing, leasing out, leasing with option to purchase;
construction; consulting, engineering; carriage of goods, passengers by rail, road,
inland water way; carriage of goods, passengers by air, sea; purchase and sale of
stocks, bonds and other securities; investment, financing, banking; insurance; [natural
resources] exploration [and/or] exploitation.
)
80 Art. 80(3) of the Law on Enactment of Laws provides that “in the case that different
pieces of legislation enacted by the same body have different provisions on the same
issue, the subsequent legislation shall prevail.” The Law on Commerce and the CPC
are both acts of the National Assembly, the CPC being the more recent of the two.
)81 See discussion of New York Convention, art. 3, supra.
)
82 Nguyen Trung Tin, Ve Viec Giai Quyet Moi Quan He Giua Phap Luat Quoc Te Va Phap Luat
Quoc Gia Trong Phap Luat Viet Nam [On Handling the Relationship between
International Law and Domestic Law in Vietnamese Law], 197 Nha Nuoc Va Phap Luat
(Journal of State and Law) 39, 46 (No. 9, 2004). See also Ordinance 07/1998/PL-
UBTVQH10 on Signing and Implementing International Treaties, S.C.N.A., August 20,
1998, entered into force on August 24, 1998, and its successor, Law 41/2005/QH11 on
Signing, Acceding to and Implementing International Treaties, N.A., June 14, 2005,
entry into force on January 1, 2006.

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 ) Tannetje Bryant & Brad Jessup, The Conclusion and Adoption of International Treaties in
83
Vietnam, in Socialism and Legal Change: The Dynamics of Vietnamese Renewal and
Chinese Reform (John Gillespie & Pip Nicholson eds., forthcoming). Cf. Ordinance on
Signing and Implementing International Treaties, supra note 82, art. 24(5); Law on
Signing, Acceding and Implementing International Treaties, supra note 82, art. 6(3).
) On January 1, 2006 a new Law on Commerce, N.A., June 14, 2005 will enter into force,
84
replacing the current Law on Commerce.
) Under art. 3(1) of the new Law on Commerce, “a commercial activity” is defined as an
85
activity for a profitable purpose, including sale and purchase of goods, provision of
services, investment, commercial promotion and other activities for a profitable
purpose.

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