It is not clear if under Vietnamese law, the parties can agree in an arbitration agreement that the award of the tribunal must be a unanimous award instead of a majority award.

In practice, in a three-arbitrator tribunal of which two are appointed by the parties, the vote of the chairman of the tribunal becomes crucial. This is because the party-appointed arbitrator will likely try to find arguments in favor of the relevant appointing party and the vote of the chairman will likely decide the case. Unlike a court judgement, an arbitration award is confidential (i.e., the public cannot know how an arbitrator decides or reaches his/her conclusion on a case), and is final and binding (i.e., there is no review of the awards by another arbitrator). Accordingly, there is limited public review and peer review of an arbitration award. This gives rise to the risk that the tribunal (or the chairman) decides the case wrongly. One possible way to mitigate this risk is to require the award of the tribunal to be a unanimous award (or to be subject to a higher-than-majority voting). If this is not possible then another way is to remove the rights of the parties to select the arbitrators so that there will be no influence by the parties on the party-appointed arbitrators.

The Commercial Arbitration Law 2010 provides that an arbitration tribunal will issue its award on the basis of majority voting. In case there is no majority, the award will follow the decision of the chairman. Unlike Article 29 of the UNCITRAL Model Law, the Commercial Arbitration Law 2010 does not clearly provide that the parties to an arbitration agreement could agree to change the majority voting rules of the tribunal. As such, one could argue that it is not possible for the parties to an arbitration agreement to require the award of the tribunal to be a unanimous award (or to be subject to a higher-than-majority voting such as 4/5 (or 3/4) votes).

However, such an interpretation is contrary to the principle of parties autonomy in arbitration. Under the Civil Code 2015 and the Commercial Arbitration Law 2010, an agreement which does not violate a prohibition of a law should be valid and should be respected by the tribunal.

This post is written by Nguyen Quang Vu.