Commercial arbitration under Vietnam Land Law 2024

Nowadays, land disputes are one of the most popular and complex disputes. There are many methods to resolve land disputes that the parties can choose such as negotiation, conciliation, and court. Law on Land 2024 has just recognized the method of resolving land disputes by commercial arbitration. In the article below, Viet An Law Firm will provide the clients with some information about land dispute resolution by commercial arbitration under Vietnam Land Law 2024.

Legal basis

• Law on Land 2013.
• Law on Land 2024.
• Law on Commercial Arbitration 2010.
• Law on Commercial 2005.
• Resolution 04/2017/NQ-HDTP guiding the implementation of Clause 1 and Clause 3, Article 192 of Civil Procedure Code 2015 on returning lawsuit petitions, the right to refile a lawsuit petitions.
• Resolution 01/2014/NQ-HDTP guiding the implementation of the regulations in the Law on Commercial Arbitration issued by the Council of Judges of the Supreme People’s Court.

What is the land dispute?

According to Clause 47 Article 3 of Law on Land 2024, land dispute means a dispute over the rights and obligations of land users among two or more parties in a land relationship.

According to Resolution 04/2017/NQ-HDTP, land disputes can be divided into 2 main types as follows:

• Disputes who have the land use rights.
• Other disputes related to land use rights such as disputes about transactions related to land use rights, disputes about inheritance of land use rights, division of common property of husband and wife which is land use rights,…

Some notable changes in commercial arbitration under Vietnam Land Law 2024

According to Article 236 of Law on Land 2024, the authority to resolve land disputes combines:

• The chairperson of the district-level People’s Committee.
• The chairperson of the provincial-level People’s Committee.
• Minister of Natural Resources and Environment.
• The commercial

Therefore, compared to Law on Land 2013, the new regulation of Law on Land 2024 is the supplement of the authority to resolve land disputes by commercial arbitration. Specifically:

• According to Clause 5 Article 236 of Law on Land 2024, the disputes among the parties arising from commercial activities related to land shall be resolved by Vietnamese commercial arbitrations according to the regulations of commercial arbitration law.
• According to Clause 6 Article 236, People’s Committees at all levels are responsible for providing relevant records and documents regarding land management and use when requested by Vietnamese commercial arbitrations as a basis for resolving land disputes.

Analysis of notable changes in new Land Law

• Law on Land 2013 only recognizes the authority to resolve land disputes belonging to Courts or People’s Committees at all levels. The supplement of the authority of commercial arbitration is to help relieve the Court’s workload, while land disputes are quite popular, the number of disputes and cases that the Court resolves is quite large.
• The resolution at the Court usually goes through 2 levels of trial. With the resolution by arbitration, the arbitration’s decision is final, meaning there is only 1 level of trial. The arbitral award is enforced according to the regulations of the law on enforcement of the civil judgment. Thus, supplementing the authority to resolve land disputes by commercial arbitration will shorten the time to resolve disputes and help to resolve disputes more quickly.
• This regulation is suitable for current practice when during the past time, not only the Court, but the commercial arbitration in our country also have resolved many disputes arising from contracts with subjects that are land use rights and assets attached to land.
• However, Law on Land 2024 doesn’t have a regulation to explain the new definition of “disputes related to land”. Meanwhile, there has been controversy or confusion between the definition of “land disputes” and “disputes related to land use rights”. Therefore, if commercial arbitration has the authority to resolve disputes related to land, the Bill needs to clearly explain two definitions.

Requirements to resolve the land dispute by commercial arbitration under Vietnam Land Law 2024

Requirements for authority

The arbitration’s authority to resolve land disputes may arise based on Article 2 of the Law on Commercial Arbitration:

• Disputes among the parties arising from commercial activities.
• Disputes among the parties at least one of whom conducts commercial activities.
• Other disputes among the parties stipulated by law to be resolved by arbitration.

Clause 5 Article 236 of Law on Land 2024 stipulates that the disputes among the parties arising from commercial activities related to land are resolved by the Court according to the regulations of law on civil procedures or Vietnamese commercial arbitration shall resolve these disputes according to the regulation of law on commercial arbitration.

Thus, only the disputes between the parties arising from commercial activities related to land shall be resolved by commercial arbitration. For remaining land disputes that do not arise from commercial activities, the arbitration has no authority, for example, inheritance disputes whose object is land use rights, residential land disputes between households, and disputes over adjacent land between households,…

Currently, there is no definition explaining the disputes between the parties arising from commercial activities. However, based on the definition of “commercial activities” in Clause 1 Article 3 of Law on Commercial 2005, it can be understood that the disputes between the parties arising from commercial activities are conflicts and disagreements between the parties in activities aimed at profit, buying and selling goods, providing services, investing, trade promotion and other activities aimed at profit. As a rule, in case one of the disputing parties is a business, especially doing business in professions related to land such as real estate, it can ensure the requirement of having “commercial activities” to resolve the disputes by commercial arbitration.

Other requirements

According to Article 5 of Law on Commercial 2010, to resolve land disputes by arbitration, there are some conditions as follows:

• A dispute shall be resolved by arbitration if the parties have a written arbitration agreement made either before or after a dispute arises.
• When one of the parties in an arbitration agreement is an individual who dies or loses the capacity to act, the arbitration agreement remains valid for the heir or representative at law, unless otherwise agreed by the parties.
• When one of the parties in an arbitration agreement is an institution that has to terminate its operation or is bankrupted, dissolved, consolidated, merged, partial or fully divided, or reorganized, the arbitration agreement remains valid for an institution that takes over the rights and obligations of the institution, unless otherwise agreed by the parties.

Note: According to Article 2 of Resolution 01/2014/NQ-HDTP, if the dispute is under an arbitration agreement but one of the parties submits the petition to the Court, the court shall refuse to undertake the case. When the court is requested to resolve the disputes, the court shall request one or either party to provide information about whether such dispute is under an arbitration agreement. If any, the court shall return the petition and enclosed documents to the plaintiff.

Resolving land disputes by commercial arbitration trending in Vietnam

In recent times, not only the Court but also the commercial arbitrations in Vietnam have resolved many disputes arising from contracts with the object of land use rights and assets attached to land. Commercial arbitration has resolved many disputes related to factory and land rental. However, the arbitration authority is not clear, which is still controversial.

The supplement of arbitration as the competent authority to resolve disputes between the parties arising from commercial activities related to land in Law on Land 2024 is really practical and necessary.

However, for this regulation to come into practice, law on land needs to have a regulation to explain the definition of the disputes arising from commercial activities related to land, and uniformly amend the definitions of land disputes and disputes related to land. Besides, Vietnamese law should have regulations guiding conditions and procedures for resolving land disputes via arbitration.

Consulting service for dispute resolution by Viet An Law Firm

• Consulting on methods to choose to resolve the land disputes;
• Preparing petitions and documents related to disputes;
• Researching records, collecting documents and evidence to resolve disputes;
• Consulting on conditions and procedures for resolving land disputes by arbitration;
• Representing clients or being lawyers to protect clients’ legal rights in Court or Arbitration;
• Other legal services based on customer requests.

Above are the Viet An Law Firm’s consultations for land dispute resolution by commercial arbitration under Vietnam Land Law 2024. Clients with related questions or need legal support in resolving land disputes, please contact Viet An Law Firm for the best support!

Disclaimer: This article was last updated in April 2024. Laws may have changed since then. Please contact Viet An Law to confirm the information in this article is current and for any legal assistance.