In arbitral proceedings, no decision affects a case’s outcome more than choosing arbitrators — the persons who will directly decide and issue final awards that the parties can hardly appeal on substance. A good, independent arbitrator knowledgeable in the dispute field can steer proceedings in the right direction; a wrong choice can cost a business the entire case.
This article presents the legal framework for arbitrators under the 2010 Law on Commercial Arbitration (Law No. 54/2010/QH12, amended and supplemented by Law No. 81/2025/QH15 effective from 01/7/2025), the procedures for choosing and replacing arbitrators, and practical selection strategies for businesses.
Who arbitrators are in arbitral proceedings
Clause 5 of Article 3 of the Law on Commercial Arbitration defines: an arbitrator is a person chosen by the parties or appointed by the arbitration center or the court to resolve disputes under this Law. The arbitral tribunal — comprising one or more arbitrators — is the sole body competent to decide cases and issue awards.
Article 21 provides arbitrators’ core rights and obligations: accepting or refusing to resolve disputes; being independent in resolving disputes; refusing to provide information relating to the dispute; receiving remuneration; keeping the dispute’s content confidential; ensuring disputes are resolved impartially, promptly, and timely; and complying with professional ethics rules. These are standards businesses may expect of any arbitrator in their case.
Legal standards to serve as an arbitrator
Article 20 sets the standards arbitrators must meet:
- Full civil act capacity under the Civil Code;
- A university degree and at least 5 years of practical experience in the studied field;
- In special cases, experts with high professional qualifications and extensive practical experience, even without meeting the university-degree and 5-year requirements, may also be chosen as arbitrators.
Additionally, Clause 2 of Article 20 excludes certain persons from serving as arbitrators despite meeting the above standards: persons currently judges, procurators, investigators, enforcement officers, officials of courts, procuracies, investigation agencies, or judgment enforcement agencies; and persons who are suspects, defendants, persons serving criminal sentences, or have completed sentences but not yet had criminal records expunged.
Moreover, Clause 3 of Article 20 allows arbitration centers to prescribe higher standards for arbitrators on their own lists — hence listed arbitrators at major centers often meet requirements stricter than the law’s minimum.
The practical point: the “university degree + 5 years’ experience” standard is the law’s minimum threshold, not a quality measure. A tens-of-millions-of-dollars EPC dispute demands arbitrators with decades of construction experience and FIDIC knowledge — requirements far beyond this minimum.
Number of arbitrators: one or three
Article 39 provides that tribunals may comprise one or more arbitrators as agreed by the parties; absent agreement on number, the tribunal comprises three arbitrators.
Choosing between one and three arbitrators is a strategic decision. A three-member tribunal — each party choosing one arbitrator and these two (or an appointment mechanism) choosing the chairman — brings balance and diverse perspectives, suited to complex, high-value cases. A sole arbitrator significantly saves costs and shortens time, suited to relatively simple, medium-value cases.
Arbitration clauses should clearly fix the number of arbitrators from the outset. Defaulting to three for a small case forces the business to bear three arbitrators’ costs unnecessarily; conversely, a complex case entrusted to a sole arbitrator may exceed one person’s capacity.
Procedures for choosing and appointing arbitrators
How arbitrators are chosen depends on the arbitration form the parties agreed:
- Institutional arbitration (Article 40): within 30 days from receiving the statement of claim and the center’s arbitrator-selection request, the respondent must choose its arbitrator or request the center’s Chairman to appoint. Failing that, within the next 07 days, the center’s Chairman appoints an arbitrator for the respondent. Within 15 days from the arbitrators’ selection or appointment, they elect one as tribunal chairman; failing election, the center’s Chairman appoints within 07 days.
- Ad hoc arbitration (Article 41): within 30 days from the respondent’s receipt of the statement of claim, the respondent must choose an arbitrator and notify the claimant. After this period without notice, the claimant may request the competent court to appoint an arbitrator for the respondent. Within 15 days from selection or court appointment, the arbitrators elect the chairman; failing election, the parties request court appointment. Within 07 days from receiving the request, the Chief Judge assigns a judge to perform the appointment.
On determining the court competent to appoint ad hoc arbitrators: under Article 7 (as amended by Law No. 81/2025/QH15, effective from 01/7/2025), it is the regional People’s Court where the respondent resides or is headquartered — a procedural detail lawyers must update when making arbitration-support requests.
Disclosure obligations and grounds for replacing arbitrators
Arbitrators’ independence and impartiality are protected by two mechanisms: the self-disclosure obligation and the parties’ right to request replacement.
On disclosure, Clause 2 of Article 42 requires: from being chosen or appointed, the arbitrator must notify in writing the arbitration center or tribunal and the parties of circumstances that may affect his/her objectivity and impartiality. This is a proactive and continuing obligation — not only at selection but throughout the proceedings as new circumstances arise.
On the right to request replacement, Clause 1 of Article 42 lists four cases: (a) the arbitrator is a relative or representative of one party; (b) the arbitrator has related interests in the dispute; (c) there are clear grounds showing the arbitrator is not impartial or objective; (d) the arbitrator was a mediator, representative, or lawyer of any party before the dispute was brought to arbitration, unless accepted by the parties in writing.
Replacement procedures: for institutional arbitration, where the tribunal is not yet formed, the center’s Chairman decides; where formed, the remaining members decide (Clause 3 of Article 42). For ad hoc arbitration, the tribunal’s remaining members decide; failing decision, the competent court’s Chief Judge assigns a judge to decide within 15 days (Clause 4 of Article 42). The decision of the center’s Chairman or the court is final (Clause 5 of Article 42).
An important note: if an arbitrator cannot continue due to force majeure or objective obstacles, or is replaced, choosing or appointing the substitute follows the Law’s sequence and procedures; the new tribunal, after consulting the parties, may reconsider matters raised at previous hearings (Clauses 6 and 7 of Article 42).
Practical arbitrator selection strategy
Beyond meeting legal standards, a wise arbitrator choice should consider these strategic factors:
- Expertise matching the dispute’s nature: prioritize arbitrators with practical experience in the case’s field — construction, banking, insurance, intellectual property, energy. An industry-knowledgeable expert grasps technical issues quickly without the parties explaining from scratch.
- Procedural management experience: especially important for the tribunal chairman — who leads the entire proceedings, runs hearings, and usually has the decisive voice when votes lack majority (Clause 2 of Article 60). An inexperienced chairman may let proceedings drag or lose control.
- Availability and time management: an arbitrator overloaded with dozens of simultaneous cases is a common cause of procedural delays. Businesses have the right to inquire about candidates’ current workloads.
- Language and multicultural ability: for foreign-element disputes, arbitrators need fluency in the agreed language and familiarity with international commercial practice.
- Thorough conflict-of-interest checks: review candidates’ relationships with the parties, the parties’ lawyers, and other arbitrators — prior work relationships, shareholdings, advisory roles, or personal relationships that may affect objectivity. Discovering conflicts late, after proceedings have gone far, is a cost and time disaster.
- Avoid choosing by “relationships”: choosing arbitrators for personal acquaintance while ignoring professional competence and independence is a common — and dangerous — mistake, because grounds under points b and c of Clause 1 of Article 42 can well be invoked by the other side to request replacement, or become set-aside grounds under points b and d of Clause 2 of Article 68.
Frequently asked questions
May a foreigner serve as an arbitrator in Vietnam?
Yes. The Law on Commercial Arbitration does not require arbitrators to be Vietnamese citizens; only Article 20’s standards must be met, without falling under Clause 2 of Article 20’s exclusions. In practice, foreign-element arbitrations in Vietnam often have foreign arbitrators on the tribunal.
May one party’s lawyer serve as arbitrator in that same case?
It should not, and the law has blocking mechanisms. Point d of Clause 1 of Article 42 provides that an arbitrator who was a representative or lawyer of any party before the dispute was brought to arbitration must be replaced, unless accepted by the parties in writing. The independence and impartiality principles in Articles 4 and 21 also rule out this possibility.
What if disagreeing with the arbitrator appointed by the center’s Chairman?
The party may request replacement if falling under one of the four cases in Clause 1 of Article 42 (relative/representative of a party, related interests, lack of impartiality/objectivity, former mediator/representative/lawyer of a party). The arbitration center Chairman’s decision on replacement is final.
Do arbitrators have a duty of confidentiality?
Yes. Clause 5 of Article 21 provides that arbitrators must keep confidential the content of disputes they resolve, except where information must be provided to competent state agencies under the law. This obligation exists alongside the non-public proceedings principle in Clause 4 of Article 4.
If an arbitrator is replaced mid-case, must proceedings restart?
Not necessarily. Under Clauses 6 and 7 of Article 42, the substitute arbitrator is chosen or appointed under the Law’s sequence; the new tribunal, after consulting the parties, may reconsider matters raised at previous tribunal hearings — whether to reconsider is the new tribunal’s decision.
Contact FLAT LAW FIRM
FLAT LAW FIRM is a boutique business law firm specializing in foreign investment (FDI), cross-border transactions, and commercial dispute resolution in Vietnam. With experience representing clients in many domestic and international arbitrations, we advise on arbitrator selection strategies suited to each case — from candidate assessment, conflict-of-interest checks, to handling arbitrator replacement requests during proceedings.
For the best adjudicating team for your business’s dispute, contact us for advice.
Disclaimer
This article is for general information on Vietnamese commercial arbitration law at the time of publication only and does not constitute legal advice for any specific case. Arbitrator selection depends on each dispute’s specific circumstances; businesses should consult a lawyer before deciding.
Useful links
- Arbitration dispute resolution — FLAT’s overview page on commercial arbitration.
- Institutional arbitration in commercial disputes — resolving disputes at arbitration centers.
- Ad hoc arbitration in Vietnam — the form where parties design their own procedures.
- Setting aside arbitral awards in Vietnam — improper tribunal composition is a set-aside ground.
