The article Provisional Emergency Measures belongs to a series of articles on Commercial Arbitration in Vietnam published by CNC in 2022. For further articles related to Commercial Arbitration in Vietnam, please visit at:

• 6 Provisional Emergency Measures
• 17 Provisional Emergency Measures in Vietnam
• Request the Arbitrator to apply provisional emergency measures

Provisional Emergency Measures in Vietnam

 

Definition and characteristics

 

The concept of Provisional Emergency Measures under Vietnamese law has not been defined in any legal documents. However, by stipulating the cases in which involved parties or their legal representatives or agencies, organizations or individuals may have the right to petition the application of one or more provisional emergency measures. Therefore, it can be understood that: provisional emergency measures are measures applied by the Court or the Arbitral Tribunal “to temporarily settle the emergent requests of the involved parties, to protect life, health, property, collect and protect evidence, preserve the existing state and avoid causing incurable damage, and secure the resolution of the case or judgment of enforcement” ^[1]. Accordingly, the characteristics of the provisional emergency measures under Vietnamese law are to:

• Temporarily settle urgent requests of the involved party directly related to the case which is being settled by the Court and needs to be resolved immediately. Any delay, would adversely affect the life, health, honor, dignity, and property of the involved party;

For example: A inflicted injuries on B. The Court is resolving a claim for damages due to health infringement. B needs money immediately to treat injuries at the hospital and therefore asks the court to apply provisional emergency measures to compel A to perform in advance a portion of the obligation of restitution damages caused.

• Collect and protect evidence of a case which is being managed or settled by the court in a case where the involved party obstructs the collection of evidence or the evidence is, or is likely to be, destroyed or is challenging to take thereafter;

For example: A sues B in a dispute regarding the boundary of property adjacent to B, and A requests the Court to apply a provisional emergency measure in the form of prohibiting any change of the current status of the property in dispute, and forces B to maintain the current status of the separating boundary of the land – not to be relocated.

• Preserve the existing state and avoid incurable damage, i.e. preserving the relationship and subject matters directly related to the case being settled by the Court;

For example: In a divorce case, a passbook savings account at the bank is registered under the name of the wife, and the husband requests the Court to apply a provisional emergency measure to block the wife’s account to secure the division of marital property.

• Secure the resolution of a case or judgment enforcement, i.e., ensure that the basis for resolving a case is sufficient to ensure that the court’s judgments or decisions are enforced – the conditions for enforcement of the judgement are thoroughly met.

For example: A is the plaintiff, asking the Court to compel B to pay A a loan of 1,000,000,000 VND. To secure the enforcement of the judgment, A requests that the court apply provisional emergency measures to freeze the property owned by B which is house X worth 900,000,000 VND.

 

Therefore, the features of provisional emergency measures under Vietnamese law are “provisional” and “urgent”:

• These are called “Provisional emergency measures” as any delay in the application will seriously affect the interests of a party/parties. For instance, in a dispute over ownership of property, if the arbitral tribunal does not immediately apply the measure “Distrained assets under dispute”, there is a risk that one party will deprive assets, which could make the tribunal’s decision unenforceable.
• Provisional emergency measures are provisional because the decision to apply them is only valid for a certain period of time and is not final. The court or arbitral tribunal can change or cancel the application of these measures.

 

Provisional Emergency Measures under Vietnamese Law

Provisional Emergency Measures under Vietnamese Law are stipulated in the Civil Procedures Code as follows:

1. Sending minor persons, legally incapacitated persons, and persons with limited cognition or behavioral control to individuals or organizations to be raised or fostered, including education
2. Enforcing the prior performance of part of an alimony obligation
3. Enforcing the prior performance of part of an obligation to compensate for damage to individuals whose lives and/or health have been infringed upon
4. Enforcing employer obligations to provide employees with advance wages, health insurance, social insurance, treatment costs for occupational accidents or occupational diseases or compensations and allowances for occupational accidents or occupational diseases
5. Suspending the execution of decisions on unilateral termination of labor contracts or decisions on the dismissal of employees
6. Distraining disputed properties
7. Prohibiting the transfer of property rights over disputed properties
8. Prohibiting the change of current conditions of disputed properties
9. Permitting the harvesting and sale of subsidiary food crops or other products and commodities
10. Freezing accounts at banks or other credit institutions – the State treasury; freezing properties at places of their deposit
11. Freezing properties of the obligor
12. Prohibiting involved parties from performing, or forcing them to perform certain acts
13. Prohibiting obligors from leaving Vietnam
14. Prohibiting contact with victims of family violence
15. Suspending bid closing and activities related to bidding
16. Arresting aircraft or ships to ensure the settlement of a lawsuit
17. Other provisional emergency measures provided for by law

Hence, in the process of the resolution of a case, the involved parties or their legal representatives or agencies, organizations or individuals may have the right to petition the application of one or more of the above provisional emergency measures to temporarily settle urgent requests of the involved party, to protect life, health, property, collect and protect evidence, preserve the existing state and avoid causing incurable damage, and secure the resolution of the case or enforcement of a judgment.

 

The application of provisional emergency measures in arbitration proceedings

Whenever a commercial dispute arises and a party requests an Arbitrator to settle the dispute (arbitration proceedings), there are many instances in which the dispute settlement will no longer be meaningful if the Arbitral Tribunal does not immediately apply provisional emergency measures.

For example, prior to the arbitral tribunal making an award decision, a party had deprived assets to evade its obligations and thus was no longer able to execute the award. Therefore, the entitled party must request that the arbitral tribunal apply provisional emergency measures to prevent the obligor from depriving assets.

Before 2011, only a court of law had the authority to apply provisional emergency measures in Vietnam. For the first time, the Law on Commercial Arbitration 2010 (effective from January 1, 2011) granted the Arbitration Council the right to apply provisional emergency measures. Accordingly, at the request of one of the parties, the arbitral tribunal may apply one or several provisional emergency measures against the other [2].

However, the arbitration council’s competence to apply provisional emergency measures is more limited than that of a court of law. Provisional emergency measures that the arbitration council may apply include [3]:

1. Prohibiting any change in the status of assets under dispute;
2. Prohibiting or forcing any disputing party to commit one or more certain acts to prevent acts which adversely affect the process of arbitral proceedings;
3. Distraining assets under dispute;
4. Requesting preservation, storage, sale or disposal of any asset of one disputing party or all disputing parties;
5. Requesting temporary money payments between the parties;
6. Prohibiting the transfer of the rights to assets under dispute.

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[1] Article 2, Resolution No. 02/2020/NQ-HDTP dated September 24, 2020, On guidelines for certain regulations on provisional emergency measures of the civil procedure code.

Nguyen Thi Hoai Thuong (Author), Vietnam Civil Procedures textbook, Ho Chi Minh City University of Law, Hong Duc Publishing House – Vietnam Lawyers’ Association, 2019, p. 292-293.

[2] Article 49, The Law on Commercial Arbitration 2010.

[3] Article 49, The Law on Commercial Arbitration 2010.

 

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