Governing law of an arbitration agreement in the absence of an express choice in Vietnam
Under the law of Vietnam, in case a contract between a Vietnamese and a foreigner (i) selects Vietnamese law as its governing law for the whole contract, (ii) selects a foreign seated arbitration as the dispute resolution mechanism, but (iii) fails to specify the governing law of the arbitration agreement, it is likely that the law of the country where the arbitration is seated (not Vietnamese law) will be the governing law to such arbitration agreement. This is because:
Similar to the separability doctrine, which is widely accepted in the practice of international commercial arbitration, the Law on Commercial Arbitration 2010 also provides that the arbitration agreement is "completely independent" from the main contract. Accordingly, the governing law of the main contract should not automatically be the governing law of the arbitration agreement. However, the Law on Commercial Arbitration 2010 does not clarify what is the governing law of the arbitration agreement in the case illustrated above. This is different from common law position where the governing law of the contract will be considered as governing law of the arbitration agreement unless there is evidence to the contrary;