Counterclaim in arbitration dispute resolution in Vietnam

In resolving disputes by arbitration, a question that many businesses have asked is, can the respondent counterclaim the claimant in resolving disputes by arbitration? To answer this question of our clients, Viet An Law Firm will present the article about the counterclaim in arbitration dispute resolution in Vietnam under current Vietnamese jurisdiction.

Legal basis

• Law on Commercial Arbitration 2010;
• Resolution No. 01/2014/NQ-HDTP of the Council of Judges of the Supreme People’s Court on Guidelines for the implementation of several provisions of the Law on Commercial Arbitration.

Counterclaim in arbitration dispute resolution in Vietnam

Clause 1, Article 36 of the Vietnam Law on Commercial Arbitration 2010 stipulates that the respondent has the right to counterclaim the claimant on issues related to the dispute.

Based on the content of the above clause, it can be analyzed that in not all cases the respondent can counterclaim the claimant. The reason is that, according to the law, only issues related to his/her dispute with the claimant can be sued. It means that the respondent will not have the right to counterclaim the claimant on issues that are not related to the content of the dispute occurring between the two parties.

For example, in the dispute between the claimant and the respondent, there are three issues A, B, and C. However, the respondent’s counterclaim includes the above 3 issues and also issue D (an issue unrelated to substantive matters as stated in the statement of claim). In this case, the respondent will not be able to counterclaim the claimant again with issue D according to the provisions of Clause 1, Article 36 of the Vietnam Commercial Arbitration Law 2010.

Therefore, it can be seen that Clause 1, Article 36 of the Vietnam Commercial Arbitration Law 2010 not only sets out rights for the respondent but also sets out conditions for the respondent. Accordingly, for the respondent to be able to use the right to counterclaim the claimant in resolving disputes by arbitration, the respondent needs to meet certain conditions, which are:

• The respondent is only allowed to counterclaim the claimant on certain issues;
• The above issues must be related to the dispute.

Thus, the answer to the question of whether the respondent can counterclaim the claimant in dispute resolution by arbitration is yes, however, the respondent’s counterclaim must comply with the provisions of the law. The law is set out in:

• Vietnam Commercial Arbitration Law 2010;
• Resolution No. 01/2014/NQ-HDTP of the Council of Judges of the Supreme People’s Court on Guidelines for the implementation of several provisions of the Law on Commercial Arbitration;
• Along with other relevant legal documents.

Making mistakes or violating the provisions of the law in the above legal documents can cause the respondent to counterclaim the claimant in many troubles and difficulties.

Some issues related to the counterclaim in Vietnam

Clients also need to pay attention to issues related to counterclaims to avoid making mistakes that may result in their counterclaim being disapproved by the Arbitral Tribunal.

Specifically, based on the provisions of Article 36 and Article 37 of the Vietnam Commercial Arbitration Law 2010 on the Respondent’s Counterclaim and Withdrawal of the Counterclaim; amend and supplement the counter-claim, accordingly, the counter-claim with the respondent will have the following specific issues:

• Contents of the counterclaim: Must be issues related to the dispute;
• Submit your complaint to:
• Arbitration Center in case of dispute resolution at the Arbitration Center;
• Or the Arbitral Tribunal and the respondent in case the dispute is resolved by Ad-hoc Arbitration.
• Respondent must file a counterclaim at the same time as the respondent’s statement of defense. It means:
• According to the agreement of the parties;
• According to the Arbitration Center’s procedural rules; or
• Within 30 days from the date the respondent receives the statement of claim and accompanying documents.
• Subject resolving the counterclaim: The Arbitral Tribunal that received the statement of claim.
• Time to withdraw the lawsuit: Before the Arbitral Tribunal issues an arbitral award on the dispute.
• Time to amend and supplement the counterclaim: The respondent may amend and supplement his counterclaim at any time during the arbitration proceedings.
• The amended and supplemented contents in the counterclaim may not be approved by the Arbitral Tribunal if:
• These amendments and supplements are used to cause obstacles and difficulties in the dispute resolution process;
• These amendments and supplements are used to delay the final decision of the Arbitral Tribunal;
• These amendments and supplements exceed the scope of the arbitration agreement applied to resolve the dispute.

The above contents are specifically prescribed by law, therefore, the disputing parties and especially the respondent are forced to comply. Compliance with these legal regulations not only demonstrates the spirit of respect for the law but also ensures that the rights and obligations of the disputing parties are fully implemented when participating in dispute resolution by arbitration.

Some notes for businesses that are respondents in dispute resolution by arbitration

In the method of resolving disputes by arbitration, the respondent has a great right to counterclaim the claimant. However, currently, there are still many businesses that do not know and are asking whether the respondent can counterclaim the claimant in dispute resolution by arbitration, or businesses know but do not care about their rights.

The respondent’s counterclaim plays an extremely important role in the dispute resolution process by arbitration, for the following reasons:

• The respondent’s counterclaim is not only a tool to help the respondent prove that the claimant’s arguments are incorrect.
• The respondent’s counterclaim also has an important effect as evidence that can help the respondent win the original claim.

Therefore, it can be affirmed that the respondent’s counterclaim is an extremely useful document for the respondent. If the respondent makes good use of the advantages of this counterclaim, he is completely capable of defending against the allegations from the claimant.

However, creating as well as submitting, amending, and supplementing counterclaims are complex tasks that require a lot of expertise. Therefore, when businesses become respondents in a dispute resolved by arbitration, they should seek legal advice from reputable and experienced experts such as a team of lawyers and consultants of the Viet An Law Firm.

If you have any questions about the counterclaim in arbitration dispute resolution in Vietnam, please contact Viet An Luat for our best support!