CASE LAW DRAFT NO. 15/2024 On the exemption of consular legalization of documents and materials in arbitration proceedings (Please note that this image is not related to the specific case being discussed).

CASE LAW DRAFT NO. 15/2024

On the exemption of consular legalization of documents and materials in arbitration proceedings

Approved by the Judges’ Council of the Supreme People’s Court on [date] [month] 2024 and published under Decision No. [number]/QĐ-CA on [date] [month] 2024 by the Chief Justice of the Supreme People’s Court.

Source of the Case Law:

The Decision No. 16/2023/QĐ-PQTT dated November 27^th, 2023, of the People’s Court of Hà Nội City regarding the dismissal of the request to annul the arbitration award between the petitioner, T Co., Ltd, and the respondent, E Company.

Location of the Case Law’s Content:

Paragraphs 6 and 7 of the “Court’s Opinion” section.

Summary of the Case Law:

– Factual Background:

The petitioner requested the annulment of the arbitration award on the grounds that the arbitration panel did not require the respondent to consularly legalize the documents and materials produced abroad and submitted to the Vietnam Commercial Arbitration.

– Legal Resolution:

In this case, the Court must determine that these documents and materials did not necessarily need consular legalization as the receiving authority, the Vietnam Commercial Arbitration, did not require it unless specified by the arbitration procedural rules.

Relevant Legal Provisions:

– Law on Commercial Arbitration 2010;

– Clause 4, Article 9 of Decree No. 111/2011/NĐ-CP dated December 5^th, 2011, of the Government on consular certification and legalization.

Keywords:

“Documents, materials”; “Exemption from consular legalization”; “Request for consular legalization”; “Receiving authority does not require”; “Arbitration proceedings.”

CASE DETAILS

On May 28, 2020, T Co., Ltd (hereinafter referred to as the petitioner) and E Company (hereinafter referred to as the respondent) entered into Sales Contract No. 01/2020/EG-MKIIS (hereinafter referred to as Contract No. 01). This contract involved the sale of 1,000,000 Dr. Ryan 4-layer Medical Masks TCVN8389-1: 2010, manufactured by O Joint Stock Company (“O Company”). The contract outlined the location, time, form of delivery and receipt of goods, and payment method.

During the execution of the contract, a dispute emerged between the parties.

On July 22^nd, 2022, the respondent initiated arbitration proceedings against the petitioner at V Arbitration Center to resolve the dispute.

On June 23^rd, 2023, V Arbitration Center issued Arbitration Award No. 49/22, which decided:

– To partially accept the respondent’s claim;

– To grant the respondent’s request to annul part of the contract concerning 600,000 masks that had not yet been delivered;

– To order the petitioner to refund the respondent the full amount paid for the undelivered goods, totaling USD 55,643.4;

– To require the petitioner to cover the respondent’s attorney fees amounting to VND 24,255,000;

– To reject the other requests made by the respondent.

Dissatisfied with the Arbitration Award, the petitioner filed a petition with the Court to annul the Award. The petitioner contends that the award contradicts fundamental principles of Vietnamese law, specifically:

According to the provisions of Contract No. 01 and its Appendix, as well as the process of concluding and performing the sales contract, and the fundamental principles of Vietnamese law:

1. The Arbitration Panel for Dispute No. 49/22 (hereinafter referred to as the Arbitration Panel) issued an award that deviates from fundamental principles of Vietnamese law. The petitioner argues that the Arbitration Panel considered the respondent’s self-defense statements in its documents without ensuring objectivity. This is related to the application of fundamental principles of Vietnamese law in the sale of goods, such as the buyer’s responsibility to accept the goods as stipulated in Article 56 of the Commercial Law, the obligation to facilitate the buyer’s receipt of the goods, and the duty to fulfill the buyer’s obligations as per Article 6 of the Contract.

In the self-defense documents presented during the arbitration hearings for Dispute No. 49/22, the respondent’s claim for the annulment of part of the sales contract was unfounded. The respondent contends that the petitioner violated fundamental principles of Vietnamese law in concluding and performing the sales contract.

Although the respondent paid for the goods as agreed, market demand significantly decreased, prompting the respondent to propose changing the delivery method from air to sea to reduce costs. This proposal was negotiated and agreed upon through electronic data messages as per the Commercial Law of Vietnam.

The respondent’s subsequent proposal to reduce the price was without merit, and when this proposal was not accepted, the respondent demanded a refund for the purchased goods (which were not delivered due to the nature of the goods and export requirements). This demand for a refund was contrary to Vietnamese law, as there was no legal basis for such a claim.

The Arbitration Panel for Dispute No. 49/22 did not fully address these issues in its Award. The petitioner’s arguments in its self-defense documents and during the dispute resolution sessions did not adequately reflect the buyer’s responsibilities, leading to an Award that conflicted with fundamental principles of Vietnamese law.

– Furthermore, the Arbitration Panel for Dispute No. 49/22 was perceived as lacking objectivity by not fully considering and reflecting the petitioner’s objections to the respondent’s request to annul part of the contract, as presented in the fourth supplementary self-defense document and during the initial dispute resolution session.

The respondent’s legal representative cited Article 421 of the Civil Code regarding contract amendments, Article 56 of the Commercial Law concerning the buyer’s obligation to accept goods, and Article 294 of the Commercial Law on exemption from liability for breaches by the petitioner (due to the petitioner’s failure to accept the purchased goods, which prevented delivery, rather than a delay in delivery as claimed by the petitioner). The Award did not incorporate these self-defense arguments, resulting in an inaccurate and unfair Award that annulled part of the respondent’s sales contract.

2. According to Clause 4, Article 4 of the 2015 Civil Code, “In case of any discrepancy between the provisions of this Code and those of an international treaty to which Vietnam is a member regarding the same issue, the provisions of the international treaty shall prevail.”

Article 6 of Contract No. 01 stipulates that “This contract is governed by Vietnamese law.” Nevertheless, the Arbitration Panel for Dispute No. 49/22 applied the United Nations Convention on Contracts for the International Sale of Goods (CISG) to render the Award, which annulled part of the sales contract between the parties and significantly impacted the petitioner’s legal rights and interests.

Vietnamese law contains adequate provisions for the sale of goods in this case, particularly concerning the responsibilities of the seller and buyer to pay and accept goods as stipulated by the 2015 Civil Code and the Commercial Law, which are consistent with the CISG. Importantly, the parties did not agree to apply the CISG to govern their transaction.

The seller and buyer must adhere to and fully comply with the basic principles of Vietnamese law as stipulated in Clause 5, Article 3 of the 2015 Civil Code. In Dispute No. 49/22, the respondent agreed with the petitioner on changes to the delivery method but did not fulfill its responsibilities in completing the procedures and conditions for receiving goods as required by Vietnamese law.

The respondent requested a price reduction, and when the price reduction was not accepted, demanded a refund through various methods contrary to the parties’ agreement on dispute resolution, such as accusing the legal representative of the petitioner to the Police of Bắc Giang Province of embezzling money from mask sales. This violated the obligation to amend and supplement the contract changes agreed upon via email, a form of contract conclusion recognized by Vietnamese law.

3. The Award for Dispute No. 49/22accepted in part that the respondent did not need to consularly legalize the foreign documents when initiating Dispute No. 49/22 at V Arbitration Center. This is because the Law on Commercial Arbitration and other legal documents on commercial arbitration do not require foreign documents to be consularly legalized. However, the Arbitration Panel for Dispute No. 49/22 did not cite any provision of the Law on Commercial Arbitration or relevant regulations, international treaties stipulating that foreign documents in arbitration proceedings in Vietnam do not require consular legalization when seeking protection of legal rights and interests from competent Vietnamese authorities.

The petitioner requested the Arbitration Panel to clarify whether V Arbitration Center and the Arbitration Panel for Dispute No. 49/22 are competent authorities in Vietnam and whether they must comply with Vietnamese law in carefully considering the grounds for the lawsuit, the authority to sign the lawsuit, and the basic principles of Vietnamese law to cautiously render fair Awards protecting the legal rights and interests of both parties.

If unable to cite the relevant regulations, the petitioner requested the Arbitration Panel to clarify the authority permitting the Arbitration Panel to deem the respondent’s request for consular legalization of the lawsuit to be baseless, and to explain the objectivity of the Arbitration Panel in not requiring consular legalization of the respondent’s lawsuit despite accepting the petitioner’s other document requests. However, to date, the petitioner has not received any explanation from the Arbitration Panel regarding these requests.

According to Clause 2, Article 4 of Decree No. 111/2011/NĐ-CP dated December 5^th, 2011, to be recognized and used in Vietnam, documents must be consularly legalized to serve the purpose of initiating a lawsuit to annul the contract. The Arbitration Panel’s failure to require the respondent to consularly legalize the lawsuit did not ensure the petitioner’s legal rights and interests under Vietnamese law.

4. The petitioner has submitted a written request to the Arbitration Panel for Dispute No. 49/22seeking clarification on point 42 of the Award in Dispute No. 49/22, specifically regarding the content “regarding the request to annul part of the contract related to 600,000 masks that were not delivered due to a breach of delivery obligations…”. The petitioner inquires about the legal basis and evidence provided by both the plaintiff and the defendant that the Arbitration Panel relied on to determine that the petitioner was late in delivery, violated fundamental contract obligations, and failed to deliver the goods. In reality, the petitioner had delivered goods twice as agreed between the two parties in the Contract and the Contract’s Appendix, and there was an agreement to deliver in multiple shipments and change the delivery method from air to sea.

According to the evidence provided by the petitioner, the two parties had several agreements on contract performance through emails, including new terms regarding brand and packaging, with important agreements on shipping via sea. The evidence provided by the petitioner does not support the determination that the petitioner was late in delivery or violated fundamental delivery obligations.

The petitioner’s evidence shows that the respondent violated the buyer’s obligations under Article 6 of the Contract and violated the agreement on the competent authority for dispute resolution, thereby requesting the petitioner to refund the purchase money according to Vietnamese law.

However, the Arbitration Panel’s analysis in point 42 did not include this content, although the petitioner had clearly and fully presented it during the resolution sessions and in its self-defense documents from the first to the fourth. The Arbitration Panel’s analysis was not objective when it separated the 200,000 masks that were agreed upon and delivered to the respondent from the 600,000 masks that were not received, and demanded the refund of the paid amount.

This analysis did not comprehensively consider the evidence and Vietnamese law provisions, leading to an Award inconsistent with Vietnamese law.

The petitioner has requested the Arbitration Panel to amend and supplement the Award in point 52, rejecting the respondent’s lawsuit for the reasons stated in the Award, which do not align with the petitioner’s intent in its self-defense documents and presentations. T

he petitioner has consistently affirmed that there was no delay in delivery, no fault in the respondent’s failure to receive the goods, and that the respondent was at fault for not enabling the delivery due to the agreed new terms via emails and electronic communications but failed to fulfill the buyer’s obligations. The respondent’s sole objective was to reclaim the paid purchase amount.

Since the respondent’s fault prevented delivery, the petitioner is exempt from liability under point c, Article 294 of the Commercial Law. The petitioner contends that the Arbitration Panel did not consider this legal provision when issuing the Award in Dispute No. 49/22, which contradicts the fundamental principles of the Civil Code, specifically Clause 5, Article 3, which states, “Individuals and legal entities must bear responsibility for their failure to perform or improper performance of civil obligations.” To date, the petitioner has not received any supplemental Award from the Arbitration Panel addressing this request.

– Regarding the Award requiring the petitioner to pay part of the respondent’s attorney fees amounting to VND 24,255,000, this decision contravenes the fundamental principles of Vietnamese law as stipulated in Clause 5, Article 3 of the Civil Code, which holds that individuals and legal entities must bear responsibility for their failure to perform or improper performance of civil obligations.

The plaintiff entered into a legal service contract with a legal service provider, and the parties did not agree on attorney fees within this contract. However, the Arbitration Panel for Dispute No. 49/22 still mandated that the petitioner must pay attorney fees for the respondent’s arrangements. This decision does not comply with Vietnamese law and is not agreed upon in Article 6 of the Sales Contract.

Based on point đ, Clause 2, Article 68 of the Law on Commercial Arbitration, the petitioner requests the Court to annul the Award in Dispute No. 49/22 issued by V Arbitration Center on June 23^rd, 2023.

The legal representative of the respondent presented the following arguments:

The petitioner claims that the Arbitration Panel did not fully reflect the petitioner’s arguments in its self-defense documents, leading to an inaccurate Award. The respondent counters this claim as follows:

According to Clause 1, Article 61 of the Law on Commercial Arbitration, the Award’s content may include a summary of the petition and the disputed issues, as well as the basis for the decision, unless the parties have agreed otherwise. Therefore, the Award is not required to include every argument presented by the parties.

Additionally, points 24, 25, 26, 31, and 32 of the Award in Dispute No. 49/22 summarize the petitioner’s viewpoints as expressed in the self-defense documents and during the dispute resolution sessions. The Arbitration Panel allowed both parties to fully present their opinions and arguments. Consequently, the petitioner’s claim in this regard lacks merit.

The petitioner argues that the Arbitration Panel should not have applied the United Nations Convention on Contracts for the International Sale of Goods (CISG). The respondent asserts that the basis for applying the CISG is adequately reflected in point 40 of the Award, thus rendering the petitioner’s claim unfounded.

The petitioner also contends that the Arbitration Panel failed to require the respondent to consularly legalize documents with foreign elements. The respondent clarifies that, in points 35 and 36 of the Award, the Arbitration Panel did indeed require the respondent to provide consularly legalized documents.

The respondent submitted a Consular Legalized Power of Attorney dated January 5^th, 2023, from Mr. J, the legal representative of the respondent, authorizing Mr. Lưu Hoàng H1 and Ms. Lê Quỳnh A. This authorization included tasks performed by the authorized representatives, including signing the lawsuit petition before the date of the Consular Legalized Power of Attorney.

During the dispute resolution session on March 3^rd, 2023, Arbitrator Phan Chí H provided an explanation regarding the acceptance of the respondent’s power of attorney. According to Clauses 2, Article 4, and Clause 4, Article 9 of Decree No. 111/2011/NĐ-CP, documents that Vietnamese authorities do not require to be consularly legalized do not need consular legalization.

Article 32 of the Law on Commercial Arbitration specifies that if there is no other agreement or procedural rule, the arbitration center must send the defendant a copy of the plaintiff’s lawsuit petition and accompanying documents within 10 days from receiving the petition and payment proof. Since V Arbitration Center did not require consular legalization of the respondent’s documents, such legalization was not necessary unless specifically requested by the center.

Regarding the authorization period, Article 563 of the 2015 Civil Code states that the authorization period is agreed upon by the parties. Furthermore, Article 142 of the 2015 Civil Code stipulates that civil transactions conducted by an unauthorized person still create rights and obligations for the represented person if acknowledged.

The petitioner acknowledged and did not object to Arbitrator Phan Chí H’s explanation. The issues related to consular legalization were fully explained and documented by the Arbitration Panel in points 35, 36, and 37 of the Award. Thus, the petitioner’s claim on this issue is unfounded.

The petitioner argues that the Arbitration Panel was not objective and impartial in handling the case by separating the contract portion related to the 200,000 masks from the portion related to the 600,000 masks. However, the Arbitration Panel’s separation of these parts does not violate Vietnamese law or the CISG.

The Award provided a comprehensive legal basis for canceling the contract portion concerning the undelivered 600,000 masks, including issues related to changes in delivery methods, delivery time, price, and the inability to sign an amendment Appendix, as analyzed in point 44 of the Award. Therefore, the claim regarding the lack of objectivity and impartiality is also unfounded.

The petitioner claims that the Arbitration Panel’s refusal to dismiss the respondent’s lawsuit violates Vietnamese legal principles, arguing that the petitioner should be exempt from liability. The Arbitration Panel considered all evidence and presentations and clearly specified the petitioner’s responsibilities in points 41 to 55 of the Award. Thus, the petitioner’s claim on this point is unclear and unfounded.

Finally, the petitioner asserts that the Arbitration Panel’s requirement for the petitioner to pay part of the attorney fees contradicts fundamental Vietnamese legal principles. However, Clause 2, Article 36 of V Arbitration Center’s Rules allows the Arbitration Panel to decide that one party must pay all or part of the other party’s legal or other reasonable costs. Therefore, this claim is also without merit.

The respondent requests the Review Panel to dismiss the petition to annul the Award in Dispute No. 49/22, asserting that there is no basis to conclude that the Award violates fundamental Vietnamese legal principles.

During the session to review the petition to annul the Award:

The petitioner reiterated the arguments presented in their petition, requesting the Review Panel to annul the Award due to alleged violations of point d, Clause 2, Article 68 of the Law on Commercial Arbitration as outlined in the 2015 Civil Code and the Commercial Law.

The respondent maintained its earlier position and requested the Review Panel to reject the petitioner’s request.

The representative of the Procuracy attending the session expressed the following opinion:

Regarding procedural matters, the petition to annul the Award was submitted within the statutory time limit. The petitioner has paid the review fee, and thus the business and commercial case is being handled correctly according to the law. The Review Panel has adhered to procedural laws, and both parties have exercised their rights and fulfilled their obligations as prescribed by law.

Regarding the content of the petition to annul the Award, the petitioner claims that the Arbitration Panel issued an Award that contradicts fundamental Vietnamese legal principles but did not specify which principles were violated. The petitioner also argued that in the event of discrepancies between the provisions of the Civil Code and international treaties to which Vietnam is a member, the provisions of the international treaty should prevail. This issue has been appropriately addressed and resolved in the Award.

Concerning the Arbitration Panel’s decision not to require the respondent to consularly legalize the lawsuit petition, according to Decree No. 111/2011/NĐ-CP dated December 5, 2011, the lawsuit petition is not a document that must be consularly legalized. The Award’s determination on this matter complies with the law.

The petitioner had also requested clarification from the Arbitration Panel regarding point 42 of the Award, which concerns “the request to annul part of the contract related to 600,000 undelivered masks due to breach of delivery obligations….” The Arbitration Panel did not provide an explanation, as this issue pertains to the content of the dispute that had already been addressed and resolved in the Award.

Based on this analysis, the representative of the Procuracy recommended that the Review Panel should not accept the petition to annul the Award and that the petitioner should bear the court fees.

COURT’S OPINION:

[1] After reviewing the petition to annul the Award, the documents and evidence in the case file, the opinions of those summoned by the Court to the hearing, and the opinion of the representative of the People’s Procuracy of Hà Nội, the Review Panel determines:

[2] Regarding procedural matters, on June 23^rd, 2023, V Arbitration Center issued the Award in Dispute No. 49/22. On July 18^th, 2023, the petitioner filed a petition to annul the Award according to Clause 2, Article 31 of the Civil Procedure Code, point g Clause 2, Clause 3, Article 7, and Article 69 of the Law on Commercial Arbitration. The petition to annul the Award was filed within the time limit, and the People’s Court of Hà Nội City has jurisdiction to accept and resolve the case.

[3] Regarding the content of the petition to annul the Award, after considering the grounds presented by the petitioner to request the Court to annul the Award, the Review Panel finds:

[4] The petitioner claims that the Award violates the principle that arbitrators must comply with the provisions of the Law on Commercial Arbitration, which is a fundamental principle of Vietnamese law and warrants annulment by the Court under point đ, Clause 2, Article 68 of the Law on Commercial Arbitration.

Specifically, the petitioner alleges that the Arbitration Panel did not fully reflect the content of the petitioner’s self-defense statements, leading to an inaccurate Award. The Review Panel finds that this pertains to the content of the case that the Arbitration Panel has adjudicated. According to Article 71 of the Law on Commercial Arbitration, the Review Panel does not re-adjudicate the content of the case, so this request of the petitioner has no basis to be accepted.

[5] The petitioner argues that the Arbitration Panel should not have applied the United Nations Convention on Contracts for the International Sale of Goods (CISG) to resolve the case. However, the Review Panel finds that the Award has addressed this issue, and the application of the law in resolving the dispute pertains to the content of the case. The Court is not permitted to re-examine the dispute adjudicated by the Arbitration Panel according to Article 71 of the Law on Commercial Arbitration, so this ground presented by the petitioner has no basis to be accepted.

[6] The petitioner contends that the Arbitration Panel did not require the respondent to consularly legalize documents with foreign elements. The Review Panel finds that in points 35 and 36 of the Award in Dispute No. 49/22, the Arbitration Panel required the respondent to provide consularly legalized documents.

According to the Arbitration Panel’s request, the respondent provided a Consular Legalized Power of Attorney dated January 5^th, 2023, from Mr. J, the legal representative of the respondent, to Mr. Lưu Hoàng H1 and Ms. Lê Quỳnh A, wherein the respondent acknowledges and approves any work that the authorized representatives have done or will do or intend to do lawfully under this power of attorney, including confirming and approving any work done faithfully and honestly on behalf of the Company to perform and complete the authorized tasks.

Thus, this authorization includes tasks that the authorized representatives performed, including signing the lawsuit petition before the date of the Consular Legalized Power of Attorney. Therefore, the respondent’s consular legalization of the Power of Attorney implicitly includes prior documents such as the lawsuit petition, making additional consular legalization of the lawsuit petition unnecessary.

[7] Additionally, Clause 4, Article 9 of Decree No. 111/2011/NĐ-CP stipulates that documents not requiring consular legalization by the receiving Vietnamese authorities do not need to be consularly legalized. In this instance, the lawsuit petition from the plaintiff was received by V Arbitration Center, which, according to its arbitration rules, did not necessitate consular legalization. Consequently, consular legalization was not required. Therefore, the petitioner’s argument on this basis is unfounded.

[8] The petitioner asserts that the Arbitration Panel lacked objectivity and impartiality in handling the case, specifically criticizing the separation of the contract concerning 200,000 masks from the contract concerning 600,000 masks. The petitioner argues that this separation violates Vietnamese law and the CISG. However, this opinion pertains to the content of the case adjudicated by the Arbitration Panel.

According to Article 71 of the Law on Commercial Arbitration, the Review Panel is not permitted to re-adjudicate the content of the case already determined by the Arbitration Panel. As such, there is insufficient basis to accept this claim, and today’s session is not intended to re-adjudicate the case.

[9] Based on the foregoing analysis, the Review Panel finds no basis to annul the Award in Dispute No. 49/22.

[10] Regarding court fees, the petitioner is required to bear the costs associated with the petition to annul the Award in accordance with the law.

In light of the foregoing,

IT IS DECIDED:

– Pursuant to Clause 2, Article 31; Articles 414 and 415 of the Civil Procedure Code;

– Pursuant to Articles 3, 4, 7, 68, 69, 70, 71, and 72 of the Law on Commercial Arbitration;

– Pursuant to Resolution No. 326/2016/UBTVQH14 of the Standing Committee of the National Assembly regarding court fees and charges.

1. The request to annul the Arbitration Award in Dispute No. 49/22dated June 23, 2023, issued by the Arbitration Panel of the Vietnam International Arbitration Center, is denied. The dispute was between:

– Plaintiff: E Company

     – Address: 2892 N Bellflower Suite 470, Long Beach, CA 90815, USA

     – Legal representative: Mr. J, Chairman

     – Authorized representatives: Ms. Lê Quỳnh A, Mr. Lưu Hoàng H1, Mr. Trần Quang H2 (address: 118, Alley 203, Q Street, N Ward, Cầu Giấy District, Hà Nội).

– Defendant: T Co., Ltd

     – Address: M Hamlet, Đ Commune, Hiệp Hòa District, Bắc Giang Province

     – Legal representative: Ms. Lê Thị T1, General Director

     – Authorized representative: Mr. Trần Khắc N (address: S Building, V Urban Area, T Ward, Nam Từ Liêm District, Hà Nội).

2. Regarding court fees: T Co., Ltdmust bear the VND 500,000(five hundred thousand dong) court fee for the request to annul the Arbitration Award, which will be deducted from the advance payment already made according to Receipt No. 0002642 dated September 27, 2023, of the Department of Civil Judgment Enforcement of Hà Nội City.
3. This decision is final and effective from the date of signing. The parties, the Arbitration Panel, have no right to complain or appeal, and the Procuracy has no right to protest.

CONTENT OF THE CASE LAW:

“[6] The petitioner contends that the Arbitration Panel did not require the respondent to consularly legalize documents with foreign elements. The Review Panel finds that in points 35 and 36 of the Award in Dispute No. 49/22, the Arbitration Panel required the respondent to provide consularly legalized documents.

According to the Arbitration Panel’s request, the respondent provided a Consular Legalized Power of Attorney dated January 5^th, 2023, from Mr. J, the legal representative of the respondent, to Mr. Lưu Hoàng H1 and Ms. Lê Quỳnh A, wherein the respondent acknowledges and approves any work that the authorized representatives have done or will do or intend to do lawfully under this power of attorney, including confirming and approving any work done faithfully and honestly on behalf of the Company to perform and complete the authorized tasks.

Thus, this authorization includes tasks that the authorized representatives performed, including signing the lawsuit petition before the date of the Consular Legalized Power of Attorney. Therefore, the respondent’s consular legalization of the Power of Attorney implicitly includes prior documents such as the lawsuit petition, making additional consular legalization of the lawsuit petition unnecessary.

[7] Additionally, Clause 4, Article 9 of Decree No. 111/2011/NĐ-CP stipulates that documents not requiring consular legalization by the receiving Vietnamese authorities do not need to be consularly legalized. In this instance, the lawsuit petition from the plaintiff was received by V Arbitration Center, which, according to its arbitration rules, did not necessitate consular legalization. Consequently, consular legalization was not required. Therefore, the petitioner’s argument on this basis is unfounded.”

THE RATIONALE FOR THE CASE LAW DRAFT’S PROPOSAL

The rationale for the case law draft’s proposal is rooted in the provisions of the Law on Commercial Arbitration 2010, which does not mandate consular legalization of documents and materials made abroad when submitted to arbitration in Vietnam. Similarly, Decree No. 111/2011/NĐ-CP, dated December 5^th, 2011, concerning consular certification and legalization, does not impose such a requirement for documents and materials made abroad when submitted to arbitration in Vietnam.

Despite these clear legal provisions, judicial practice has seen some judges demand consular legalization of such documents and materials. This has led to the annulment of several arbitration awards where consular legalization was not required by arbitration rules. This judicial practice has caused significant confusion, is inconsistent with international commercial and arbitration practices, and does not align with the aforementioned legal documents. Consequently, there is a pressing need for a precedent to ensure the uniform application of the law.

The decision of the People’s Court of Hà Nội City is in alignment with the Law on Commercial Arbitration and Decree No. 111/2011/NĐ-CP. The draft precedent’s direction is also consistent with international practices in resolving arbitration disputes. It offers high flexibility by allowing arbitration procedural rules to require consular legalization of documents and materials submitted to arbitration. Therefore, developing a precedent on this issue is essential to ensure efficient and expeditious arbitration dispute resolution in Vietnam.

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