Rule 16.4 of VIAC arbitration rules does not allow an arbitrator to privately meet or contact any party relating to the dispute “during arbitration proceeding”. VIAC rules do not regulate the communication between a party with a prospective arbitrator before such party appoints its own candidate. As such, a party in a VIAC arbitration proceedings could arguably have private meeting and discussion with a prospective arbitrator to discuss the dispute. In particular,

Since under VIAC arbitration rules, an arbitration proceeding starts when VIAC receives the Statement of Claim which includes details of the Claimant’s appointed arbitrator. Therefore, the Claimant may argue that it can meet privately with a prospective arbitrator to discuss the dispute with the prospective arbitrator before the arbitration proceeding starts as long as such discussion does not violate other rules of VIAC.
On the other hand, the Respondent could also argue that before appointment a prospective arbitrator is not the arbitrator of the dispute. Therefore, the Respondent could also meet privately with a prospective arbitrator to discuss the dispute with the prospective arbitrator before making formal appointment as long as such discussion does not violate other rules of VIAC.

Unlike VIAC rules, SIAC rules, HKIAC rules, or ICC rules all have express requirement on communication with prospective arbitrators. For example, SIAC rules provide that a party must not communicate privately with any candidate for appointment as an arbitrator except to advise the candidate of the general nature of the controversy and of the anticipated proceedings; to discuss the candidate’s qualifications, availability or independence in relation to the parties; or to discuss the suitability of candidates for selection as the presiding arbitrator.

This post is written by Nguyen Quang Vu with research assistance by Trinh Phuong Thao and Tran Kim Chi.

Vietnam Business Law