Jurisdiction of Arbitration in Dispute Resolution
Article 2 of the Law on Commercial Arbitration 2010 stipulates the jurisdiction of arbitration in resolving disputes as follows:
1. Disputes arising between parties from commercial activities.
2. Disputes arising between parties in which at least one party has commercial activities.
3. Other disputes between parties that are stipulated by law to be resolved by arbitration.
This provision is guided by Article 2 of Resolution No. 01/2014/NQ-HĐTP, as follows:
Article 2. Determination of jurisdiction to resolve disputes between Arbitration and the Court under the Law on Commercial Arbitration (LCA)
1. Arbitration has jurisdiction to resolve disputes prescribed in Article 2 of the LCA if the parties have an arbitration agreement as stipulated in Articles 5 and 16 of the LCA, except in cases specified in Clause 3 of this Article.
2. When a request is made for the Court to resolve a dispute falling within the scope of Article 2 of the LCA, the Court shall require one or more parties to clarify whether there is an arbitration agreement between them. The Court must review the documents attached to the statement of claim to determine whether the dispute falls under the case described in Clause 3 of this Article. Depending on the circumstances, the Court shall handle as follows:
a) If there is no arbitration agreement, or if a final judgment or decision of the Court or a valid decision/award of an arbitral tribunal determines that there is no arbitration agreement, the Court shall accept and resolve the case within its jurisdiction.
b) If there is an arbitration agreement and it does not fall under the case described in Clause 3 of this Article, the Court, pursuant to Point đ Clause 1 Article 168 of the Civil Procedure Code 2004 (amended and supplemented by the 2011 Law), shall return the statement of claim and accompanying documents and evidence to the claimant.
If the Court discovers, after accepting the case, that an arbitration agreement exists and it does not fall under the case in Clause 3 of this Article, the Court shall, pursuant to Point i Clause 1 Article 192 of the Civil Procedure Code (CPC), issue a decision to suspend the proceedings and return the statement of claim and related documents to the claimant.
c) If arbitration proceedings are already initiated and the Arbitral Tribunal is handling the dispute, the Court—despite determining that the dispute is outside arbitral jurisdiction, has no arbitration agreement, or that the agreement falls within Clause 3 of this Article—shall return the statement of claim to the claimant. If already accepted, the Court shall suspend the proceedings, unless the Court accepted the case before the arbitration request was made.
After the arbitral tribunal issues a decision or award under Articles 43, 58, 59, and 61 of the LCA, and the claimant requests the Court to resolve the case, the Court shall consider acceptance and resolution under general procedures.
3. Disputes having an arbitration agreement but falling into the following cases shall be under the Court’s jurisdiction, unless otherwise agreed by the parties or provided by law:
a) There is a Court decision to annul the arbitral award or the arbitral decision recognizing the parties’ agreement;
b) The arbitral tribunal or arbitration center issued a decision to terminate dispute resolution as stipulated in Clause 1 Article 43 or Points a, b, d, and đ Clause 1 Article 59 of the LCA;
c) The dispute falls under Clauses 1, 2, 3, and 5 of Article 4 of this Resolution.
4. Where the parties have both an arbitration agreement and a court jurisdiction clause, but have not reached a new or revised agreement and the case does not fall under Clause 3 of this Article, the handling shall be as follows:
a) If the claimant requests arbitration before requesting the Court, or before the Court accepts the case, the Court shall, pursuant to Article 6 of the LCA, decline jurisdiction. Upon receiving the statement of claim, the Court must return it; if already accepted, it shall issue a decision under Point i Clause 1 Article 192 of the CPC to suspend proceedings and return the statement of claim and documents to the claimant.
b) If the claimant requests the Court to resolve the dispute, the Court must immediately determine whether any party has requested arbitration.
Within five working days from receipt of the statement of claim, if the Court determines that either party has requested arbitration, the Court shall return the statement of claim to the claimant. If no party has requested arbitration, the Court shall proceed to accept and resolve the case under general procedures.
If the Court discovers after accepting the case that arbitration proceedings had already been requested before acceptance, it shall, pursuant to Point i Clause 1 Article 192 of the CPC, issue a decision to suspend proceedings due to lack of jurisdiction, and return the statement of claim and related documents to the claimant.
