Alongside institutional arbitration — the form familiar to most businesses — Vietnamese law also recognizes ad hoc arbitration: a form with no permanent arbitration center administering the case, where the parties themselves agree on the dispute resolution sequence and procedures. This is the form offering maximum freedom, but also demanding the most thorough preparation.
This article analyzes the legal framework for ad hoc arbitration 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 mechanisms for handling party deadlocks, and an assessment of practical application in Vietnam.
What is ad hoc arbitration
Clause 7 of Article 3 of the Law on Commercial Arbitration defines: ad hoc arbitration is a form of dispute resolution under this Law and sequences and procedures agreed by the parties. Unlike institutional arbitration — where a permanent center provides administrative machinery and ready-made procedural rules — ad hoc arbitration is “built” for each specific dispute: the parties choose arbitrators, agree on the process themselves, and once the case concludes, the ad hoc tribunal’s role also ends.
It must be emphasized: “ad hoc” does not mean “arbitrary”. Every ad hoc proceeding must still comply with the foundational principles in Article 4 — respecting the parties’ agreement, independent and impartial arbitrators, party equality, non-public proceedings, final awards — and other mandatory provisions of the Law. Freedom to design procedures exists only within the framework the Law permits.
The parties design their own procedures: agreement on procedural rules
The soul of ad hoc arbitration is the parties’ right to determine their own procedures. The parties may agree to apply an existing international set of arbitration rules — most commonly the UNCITRAL Arbitration Rules issued by the United Nations Commission on International Trade Law — or build their own process suited to the case’s characteristics.
In practice, a well-drafted ad hoc procedural agreement usually includes: how statements of claim and defense are filed; time limits for each procedural step; the language and venue; evidence rules (whether adversarial witness examination is allowed, the scope of document production); the number and manner of hearings; and how awards are issued. The level of detail in this agreement directly determines the proceedings’ later “smoothness”.
Ad hoc arbitration’s greatest risk also lies here: if the procedural agreement is sketchy or omits arising situations, the parties will have to dispute the case’s substance while also arguing about… how to dispute. This is why ad hoc arbitration is truly suitable only where both sides have lawyers experienced in arbitration.
Forming the ad hoc arbitral tribunal
Article 41 details the formation sequence for ad hoc tribunals where the parties have no other agreement:
- 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, if the respondent gives no notice and the parties have no other appointment agreement, the claimant may request the competent court to appoint an arbitrator for the respondent.
- Where there are multiple respondents, the respondents must jointly choose an arbitrator within 30 days; failing agreement, one or more parties may request court appointment.
- Within 15 days from being chosen or court-appointed, the arbitrators elect another arbitrator as tribunal chairman. If they cannot elect and the parties have no other agreement, the parties may request the court to appoint the chairman.
- Where the parties agree the case is decided by a sole arbitrator but cannot choose one within 30 days, the court appoints at one or more parties’ request (unless the parties agree to ask an arbitration center to appoint).
The fundamental difference from institutional arbitration: in institutional arbitration, when deadlocked, the arbitration center’s Chairman appoints (Article 40); in ad hoc arbitration, this “rescue” role belongs to the court. Within 07 days from receiving the request, the Chief Judge of the competent court must assign a judge to appoint the arbitrator and notify the parties (Clause 5 of Article 41).
Court support when parties deadlock
The law designs courts as a “safety net” for ad hoc arbitration, not as its operator. Beyond appointing arbitrators on deadlock (Article 41), courts also support ad hoc arbitration in these situations:
- Replacing arbitrators: replacement is decided by the tribunal’s remaining members; if they cannot decide, within 15 days from receiving the request, the Chief Judge assigns a judge to decide (Clause 4 of Article 42). The court’s decision is final.
- Reviewing jurisdiction decisions: a party disagreeing with the tribunal’s decision on an invalid, unenforceable arbitration agreement or the tribunal’s jurisdiction may request court review within 05 working days (Article 44).
- Evidence collection and witness summons: where the tribunal cannot collect evidence itself, it may request court assistance (Article 46); similarly for summoning uncooperative witnesses (Article 47).
- Interim emergency measures: the parties may request courts to apply interim emergency measures; requesting court-applied measures is not deemed waiver of the arbitration agreement (Article 48).
- Registering ad hoc awards: under Article 62, ad hoc awards are registered at the court where the tribunal issued the award before enforcement is requested.
Update note: under Law No. 81/2025/QH15 amending Clause 3 of Article 7 of the Law on Commercial Arbitration (effective from 01/7/2025), the court competent for most arbitration-support activities above is the regional People’s Court; requests to set aside awards and register ad hoc awards fall within certain provincial People’s Courts designated by the National Assembly Standing Committee.
Registering ad hoc awards: a mandatory procedure before enforcement
An important practical difference between the two arbitration forms lies in Article 62: ad hoc awards must be registered at the court where the tribunal issued the award before the enforcement-creditor may request the civil judgment enforcement agency to enforce (Clause 1 of Article 62, Clause 2 of Article 66).
The registration procedure is specific: within 01 year from the award’s issuance, the requesting party sends a registration application with the original or certified copy of the award, the hearing minutes (if any), and the arbitration agreement. Within 05 working days, the Chief Judge assigns a judge to review; within 10 days from assignment, the judge verifies the documents’ authenticity and performs registration. Registration or non-registration does not affect the award’s content and legal value — this is an administrative–judicial procedure serving enforcement, not “approval” of the award’s substance.
Businesses should note this 01-year milestone: missing the registration deadline may complicate later award enforcement, although the law provides no direct consequence for late registration.
Advantages of ad hoc arbitration
Ad hoc arbitration has three outstanding advantages. First, maximum flexibility: the parties can design a process perfectly suited to the case’s characteristics — from the number of hearings, evidence presentation, to whether expedited procedures are allowed. For cases with complex, multi-party, multi-contract structures, this flexibility is invaluable.
Second, administrative cost savings: no arbitration center administrative fees; the parties pay only arbitrator remuneration and actual proceeding costs. For large-value cases, this saving can be significant.
Third, high neutrality and confidentiality: the parties fully control arbitrator selection, venue, and language without being bound by any organization’s lists or rules; no third-party institution holds case information beyond the tribunal and the parties.
Disadvantages and practical risks
Freedom’s flip side is responsibility. Ad hoc arbitration’s greatest disadvantage is the lack of professional administrative machinery: everything — from document transfers, time-limit setting, hearing arrangements, to fee advance management — is done by the parties and the tribunal themselves. If one party is uncooperative, proceedings easily stall and require court intervention, which is far slower than an arbitration center’s internal appointment mechanism.
Second, risk from incomplete procedural agreements: as analyzed, a sketchy agreement is the source of satellite disputes over procedure, prolonging and cost-inflating the process — contrary to the original purpose of choosing arbitration.
Third, the award registration procedure in Article 62 adds a step compared to institutional arbitration, and case file storage is done by the parties or arbitrators themselves (Article 64) rather than by a professional organization storing for 05 years.
For these reasons, in Vietnam, ad hoc arbitration accounts for a small share of total resolved arbitration cases — most businesses, including FDI enterprises, still choose institutional arbitration at centers like VIAC. Ad hoc arbitration usually appears only in cases where all parties have legal teams well-versed in international arbitration, or in investment disputes with special structures.
Frequently asked questions
Is ad hoc arbitration lawful in Vietnam?
Yes. Clause 7 of Article 3 of the Law on Commercial Arbitration defines and recognizes ad hoc arbitration as one of the two arbitration forms, alongside institutional arbitration. The Law devotes specific provisions to this form, such as Article 41 on forming ad hoc tribunals and Article 62 on award registration.
May the parties agree to apply the UNCITRAL Arbitration Rules in Vietnam?
Yes. The essence of ad hoc arbitration is sequences and procedures agreed by the parties (Clause 7 of Article 3), and the parties may agree to apply the UNCITRAL Arbitration Rules or any other rule set, provided they do not contravene mandatory provisions of Vietnamese commercial arbitration law.
What if the parties cannot agree on arbitral procedures?
The Law has “default” provisions filling gaps: Article 41 on tribunal formation, the principles in Article 4, and the tribunal’s power to decide procedural matters within the law’s scope. Relying on default provisions instead of detailed agreement, however, always risks disputes, so the more detailed the procedural agreement, the better.
Do ad hoc awards have the same enforceability as institutional awards?
Yes, their legal value is the same: final awards effective from issuance (Clause 5 of Article 61). The only difference is that ad hoc awards must be registered with the court under Article 62 before requesting the civil judgment enforcement agency to enforce.
Can interim emergency measures apply in ad hoc arbitration?
Yes. Under Articles 48–50, ad hoc tribunals may apply interim emergency measures such as prohibiting changes to asset status, seizing assets, or prohibiting transfers of property rights. The parties may also request courts to apply interim emergency measures without being deemed to have waived the arbitration agreement.
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. We advise on drafting ad hoc arbitration agreements and “tailor-made” procedural rules for each case; represent clients in ad hoc arbitral proceedings, as well as in court support procedures — from arbitrator appointment to award registration.
If your business is considering ad hoc arbitration for a special transaction, 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. The choice of arbitration form depends on each transaction’s and 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.
- Choosing arbitrators in disputes — standards and strategies for choosing arbitrators.
- Interim emergency measures in arbitration — tools protecting rights during arbitral proceedings.
