Filing for arbitration does not begin on the day the request is submitted — it begins on the day the business reviews its entire legal "luggage". A defective arbitration agreement, a limitation period that has already lapsed, or an evidence file missing a critical link can each cause the case to collapse before the arbitral tribunal has a chance to consider the merits. The legal framework cited is the 2010 Law on Commercial Arbitration, as amended and supplemented by Law No. 81/2025/QH15, effective from 01/07/2025. The checklist below has eight steps — each step is not merely a box to tick, but a substantive legal issue that must be handled correctly.
1. Reviewing the arbitration agreement: the "ticket" into the proceedings
Under Article 5 of the 2010 Law on Commercial Arbitration, a dispute is resolved by arbitration only where the parties have an arbitration agreement; under Article 6, if a party files a lawsuit with a Court while an arbitration agreement exists, the Court must decline to accept the case (unless the agreement is invalid or incapable of being performed). The review has four layers.
The form layer: the agreement must be established in writing under Article 16 — an arbitration clause in the contract, a separate agreement, or forms deemed to be in writing such as exchanges by email or a reference to a document containing an arbitration clause. The content layer: does the agreement clearly designate the arbitration centre and the procedural rules, or is it merely general wording?
The signing-authority layer: did the signatory have authority to represent the business — this is also a ground for refusing recognition of a foreign arbitral award (point a, clause 1, Article 459 of the Civil Procedure Code)? The scope layer: does the current dispute fall within the scope of the agreement? Filing beyond the scope is a ground for setting aside the award.
2. Checking the limitation period for filing
Article 33 provides: unless sectoral law provides otherwise, the limitation period for bringing a claim under arbitration procedures is 02 years from the time lawful rights and interests are infringed. Three points to note: sectoral laws may set a different limitation period (construction, maritime, insurance); the time when "lawful rights and interests are infringed" does not always coincide with the time the contract was signed; and the limitation period is an issue the respondent has the right to invoke.
The golden rule: determine the limitation period and "lock in" the intended filing date as soon as the dispute emerges, then plan the preparation backwards from that milestone.
3. Request for arbitration, advance on costs and the financial plan
Under Article 30, the claimant prepares a request for arbitration and sends it to the arbitration centre (institutional arbitration) or to the respondent (ad hoc arbitration), together with the original or a copy of the arbitration agreement and the relevant documents and evidence. The request must state: the date; the names and addresses of the parties; a summary of the dispute; the basis and evidence for the claim; the value of the assets claimed; and the arbitrator selected by the claimant.
As to when the proceedings commence (Article 31): for institutional arbitration, from when the centre receives the request for arbitration (unless the parties agree otherwise); for ad hoc arbitration, from when the respondent receives the request. This milestone "freezes" the limitation period. A practical note: the arbitration centre may require certified copies of evidence — prepare notarisation and certification in parallel with drafting the request; do not wait until a supplementation request arrives before starting.
In parallel, build the financial plan: the claimant must pay an advance on arbitration costs when filing — the centre only notifies the request to the respondent after receiving proof of payment of the advance (Article 32). Beyond the initial advance, budget for the arbitration fees under the centre’s fee schedule, lawyers’ fees, appraisal/expert costs, logistics costs, and the costs of the post-award stage (recognition, leave for enforcement, judgment enforcement). The strategic question: how does the total expected cost compare with the amount that can be recovered?
4. Strategy for selecting arbitrators
Under Article 39, the arbitral tribunal consists of one or more arbitrators as agreed by the parties; if there is no agreement on the number, the tribunal consists of three arbitrators. Under the three-member model, each party selects one arbitrator; if the respondent fails to select within the time limit, the President of the arbitration centre appoints one instead.
The selection criteria are not only general reputation but specific suitability: understanding of the field of the dispute, experience handling similar types of disputes, ability to work in the language of the proceedings, availability over time, and independence, impartiality and absence of conflicts of interest. Start identifying and approaching potential arbitrators early — reputable individuals often have schedules booked many months ahead.
5. The respondent’s perspective: the statement of defence and the right to counterclaim
For the respondent, the "clock" runs from receipt of the request for arbitration: within 30 days from the date of receiving the request and the accompanying documents, the respondent must send a statement of defence to the arbitration centre unless the parties agree otherwise (Article 35); this time limit may be extended. The statement of defence includes the date, the respondent’s name and address, the basis and evidence for the defence, and the arbitrator selected by the respondent or proposed for appointment.
Two points respondents often miss. First, the right to counterclaim (Article 36): the counterclaim must be filed at the same time as the statement of defence — missing this moment means losing the most effective counter-attack. Second, if no statement of defence is filed, the resolution process still proceeds (clause 5, Article 35).
6. Building the evidence file: witnesses and experts
Under clause 1, Article 46, the parties have the right and the obligation to provide evidence to the arbitral tribunal. The process has four steps. Inventory: catalogue all relevant documents — contracts, appendices, emails, meeting minutes, delivery and payment records, electronic data — and assess the strengths and weaknesses of each group.
Preservation: issue an internal "hold" instruction, preventing the deletion of emails, the overwriting of data or the destruction of documents on a cycle. Structure: each claim in the request for arbitration (or each argument in the statement of defence) must be tied to specific evidence — a logically organised file is far more persuasive than thousands of pages of loose documents. Gap-filling: identify which evidence is in the hands of the other party or a third party, and the plan to obtain it (asking the arbitral tribunal to request its production, or seeking the Court’s assistance).
Witnesses in arbitration are usually the business’s own personnel — the people who directly negotiated, performed the contract or supervised the project. Preparation work: identify who knows the facts best, assess their willingness to cooperate, prepare written statements, and "rehearse" the answers to cross-examination. For experts, distinguish experts engaged/consulted by the arbitral tribunal from experts retained by each party; for technical disputes, retaining your own expert early is often the decisive investment. Note: key personnel may have left by the time the dispute escalates — approach witnesses early and have a backup plan.
7. Urgent interim measures and preserving the status quo
"Winning the case" is of little value if the assets have been dissipated and the award exists only on paper. In parallel with preparing the filing, the business must assess immediately: is there a risk that the other party will dissipate assets, destroy evidence, or cause irreparable harm? The Law on Commercial Arbitration gives the arbitral tribunal the power to apply urgent interim measures; where necessary, the parties may request the Court to apply them — the competent Court is the Court of the place where the measure needs to be applied (point dd, clause 2, Article 7).
From 01/7/2025, under clause 3, Article 7 as amended by Law No. 81/2025/QH15, this authority belongs to the regional People’s Court (to be distinguished from Resolution No. 81/2025/UBTVQH15 on the organisation of the Court system — two different instruments). A request for urgent interim measures must be prepared like a "file within a file": prove the urgency, specify the assets or acts to which the measure is to apply, and provide for the obligation to compensate for damage if the request is later determined to be groundless.
8. The enforcement plan for the award: start before filing
The last step of the checklist, but the one that must be thought of first: where will the award be enforced, and how? For a domestic arbitral award, the award is enforced under the law on civil judgment enforcement — review from the outset: what assets does the party obliged to enforce have, where are they, what is their legal status, and are there signs of dissipation?
For an award to be enforced abroad — or a foreign arbitral award to be enforced in Vietnam — the procedure for recognition and leave for enforcement under Part Seven of the Civil Procedure Code (Chapter XXXVII) must be factored in, with a time limit of 03 years and the corresponding refusal grounds under Article V of the 1958 New York Convention. The requirements of this procedure must be "built in" from the time the filing is prepared, not patched up after the award has been issued. The overarching principle: prepare the arbitration case with the mindset of "how to get it enforced", not merely "how to win".
Frequently asked questions
How long does preparing an arbitration file usually take before filing?
Good practice is to allow at least 1–3 months for reviewing the agreement, inventorying evidence, selecting arbitrators and drafting the request; complex cases may need 6 months or more.
What should be done if the arbitration agreement is found to be defective?
If the defect can be cured by a supplementary agreement (for example, clarifying the arbitration centre), the parties may sign a supplementary agreement — Article 5 permits an agreement made before or after the dispute arises. If the defect is serious (invalid, incapable of being performed), the entire strategy must be reassessed, including the option of suing in Court under Article 6.
Is the respondent required to file a statement of defence?
Legally, not filing does not stop the proceedings — the resolution process still proceeds (clause 5, Article 35). Strategically, however, not filing means giving up the opportunity to present one’s views, submit rebuttal evidence, select an arbitrator and, in particular, the right to counterclaim (Article 36).
Is an enforcement plan needed right from the stage of preparing to file?
Yes. It is necessary to determine from the outset: where the assets of the party obliged to enforce are, under which mechanism the award will be enforced, and whether the requirements of the enforcement procedure have been met. The enforcement plan feeds back into how the filing is prepared.
Contact FLAT LAW FIRM
FLAT LAW FIRM is a boutique business law firm specialising in foreign investment (FDI), cross-border transactions and commercial dispute resolution. We accompany businesses from the first step of the checklist: reviewing the arbitration agreement, assessing the limitation period and the prospects of success, building the evidence strategy, selecting arbitrators, and designing the award enforcement plan right from the filing stage. An arbitration case that is well prepared from the start is usually shorter, cheaper and has a significantly higher success rate. If you are considering filing for arbitration, please contact us for a comprehensive assessment of your case before filing.
Disclaimer
The content of this article is general information only about preparing a commercial arbitration case file in Vietnam and does not constitute legal advice for any specific case. Each case has its own particularities in terms of the arbitration agreement, evidence and strategy; businesses should consult a lawyer before making legal decisions.
Useful links
- Resolving disputes by commercial arbitration — an overview page on arbitration in Vietnam
- Enforcing arbitral awards in Vietnam — the destination of every preparation plan
- Arbitration costs and cost allocation — budgeting before filing
- Evidence in arbitration proceedings — building a winning evidence file
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This legal analysis has been verified against current Vietnamese regulations and cross-border FDI transaction practices by the attorneys at FLAT LAW FIRM.
