A trade secret case carries its own paradox: you sue to protect a secret, yet the proceedings can expose more of it. The court-versus-arbitration choice therefore decides half the outcome — this article compares the practical axes.
The confidentiality axis: arbitration clearly wins
Arbitration under the Commercial Arbitration Law 54/2010/QH12 is private in principle and case documents are not public — a decisive advantage when the subject matter is itself confidential information. Court proceedings under the Civil Procedure Code 92/2015/QH13 are public in principle; parties may request closed hearings where secrecy must be kept under the rules, but controlling information flow remains harder than in arbitration. The more valuable the secret, the heavier this axis weighs in forum choice.
The coercion axis: courts are stronger
Courts hold direct coercive tools: interim measures such as bans on transferring information, evidence preservation, and the State enforcement system behind judgments. Arbitration can grant interim relief within legal limits, but coercion against third parties — a bank, a partner holding the data — still needs court support. Cases risking evidence dissipation, or where the infringer is moving data to third parties, usually need a court, or an arbitration clause that permits seeking court interim measures without losing the arbitration right.
Cost, speed and enforcement
Arbitration is usually faster and its award is final without appeal, but arbitration fees on a large case plus both sides’ counsel can exceed court fees. A court judgment can be appealed, stretching time, while court fees follow the State schedule. Domestically, both awards and judgments pass through civil enforcement; a foreign arbitral award needs recognition in Vietnam. Where the infringer’s assets sit mainly abroad, the balance flips, because an international award travels across borders more easily under the New York Convention.
The choice is rooted in the NDA clause
Most trade secret cases start from a relationship already governed by an NDA or labour and cooperation contracts — the dispute clause in those documents fixes the forum before any dispute exists. A valid arbitration clause in the NDA binds the parties to arbitration, save for matters needing urgent court support. Drafting an NDA today means choosing the forum deliberately by your risk profile: confidentiality and final speed point to arbitration; strong coercion and public deterrent precedent point to court — and add a clause permitting court interim measures either way.
Frequently asked questions
For a trade secret lawsuit, should court or arbitration be chosen?
Prefer arbitration when the asset most needing protection is secrecy itself and the parties have an arbitration clause; prefer court when strong coercion, interim measures against third parties, or a public deterrent judgment is needed.
What are the advantages of arbitration (confidentiality) over court?
Arbitration is private with non-public files, so confidentiality is far stronger; court hearings are public in principle, with closed hearings only in statutory cases and information flow still harder to control.
What are the costs of the two forms?
Court fees follow the State schedule while arbitration is charged per case and dispute value; on large cases arbitration fees can exceed court fees, in exchange for usually faster proceedings and a final award.
How should the arbitration clause be written in the NDA?
That clause is the root of forum choice: a valid arbitration clause in the NDA binds disputes arising from it to arbitration; when drafting the NDA, choose the forum in advance and add a right to seek court interim measures.
This article has been quality-reviewed by the FLAW AI Legal Council