THE ENTRUSTMENT OF THE ARBITRAL AWARD ENFORCEMENT [?Y THáC THI HàNH áN ??I V?I PHáN QUY?T TR?NG TàI]

Our first arbitration case is being processed at the eviction stage now. In legislation, if an arbitral award is granted by an arbitration center in Ho Chi Minh City, the Department of Civil Enforcement (C?c Thi hành án Dan s? Tp. HCM - DCE) shall be the competent agency to execute this award. However, in our case, the defendant lives in another province, so the enforcement procedure will be a bit complicated due to the entrustment procedure to a Sub-Department of the Civil Enforcement (Chi c?c Thi hành án Dan s? - SCE) where the Judgement Debtor is living. Below is a simplified process to entrust the enforcement of an arbitral award.

Stage 1. The statute of limitations and voluntarily enforcing an arbitral award.

In accordance with Article 63 of Law on Commercial Arbitration 2010, within 30 days from the receipt date of arbitral awards, parties reserve the right to request the Arbitration Center to amend, correct, supplement, and explain the arbitral award. Plus, within this statute of limitations, either the Judgment Creditor (the party prevailed in the lawsuit) or the Judgment Debtor (the party that lost the case and is enforced to pay debts/ fulfill obligations) is also entitled to the right to submit a complaint to the competent court, to annul the arbitral award, if it falls into any conditions as prescribed in Article 68 Law on Commercial Arbitration 2010. The arbitral award shall take effect immediately on the issuance date, but parties must wait for at least 30 days to bring the case to the eviction stage.

On the other hand, according to Clause 1 Article 61 of the Law on Commercial Arbitration 2010, the arbitral award must contain a "time limit for enforcement of the award" for the Judgment Debtor to incur liabilities. This term limit is not mentioned in laws and stated in the arbitral award, it depends on the Arbitral Rules of each Arbitration Center, and in most cases, it should be immediately after the commencement of the arbitral award. Therefore, we can contact the Judgment Debtor directly to demand voluntary enforcement after receiving the arbitral award. If both sides can settle an arrangement on the enforcement at this stage, we can shorten the period dramatically.

Stage 2. Submit eviction request.

When the statute of limitations passed, the Judgment Creditor will submit an eviction request to DCE. The eviction request includes the following documents:

• Civil enforcement request form (fulfill information on the legislation template): Should be signed and stamped by the legal representative or authorized person.
• Original arbitral award. Besides the original version for each party, the Arbitration Center shall issue a separate arbitral award for enforcement purposes. DCE shall reject copied versions.
• POA if the applicant (if the applicant is an authorized person). Please note that the POA must mention at least two main points: (1) the authorized person can submit the eviction request on behalf of the company; (2) the authorized person is entitled to sign documents and coordinate with the Enforcer (ch?p hành viên) in the whole eviction process;
• Notarized ID of the applicant and ERC of the company;
• Decision to appoint the applicant (if the authorized applicant occupies a management title).

DCE’s staff will receive qualified documents and grant an appointment letter to handle the request with a timeline of 05 business days.

Stage 3. The DCE reviews the eviction request.

To determine the conditions for accepting an application for eviction, DCE must rely on this content to determine two issues (which were mentioned in Stage 1):

• First, has the time limit for enforcement of the award expired;
• Second, has the party to be enforced requested the court to annul the arbitral award?

To check the time limit for voluntary enforcement, DCE shall base it on the term mentioned in the arbitral award. However, to check whether any party to be enforced requested the court to annul the arbitral award, DCE needs to get the verification and confirmation from the City’s Court (TAND Thành ph?). Within 05 days from the receipt date of the eviction request, DCE will send an official letter together with all relevant documents to the Court and ask for any complaint/lawsuit that has been conducted to annul the arbitral award or not.

This step takes the most time of the whole process because, in practice, it depends on the Court and some of the cases could last two or three months to obtain the confirmation. Therefore, in order to optimize the process, the Judgment Creditor can contact the City’s Court Office (V?n phòng Tòa án Thành ph?) to check the status, but this tip acquires the Judgment Creditor must have good connections with the Court.

Stage 4. Entrust the enforcement of an arbitral award.

After the Court’s verification, DCE shall continue the eviction process. The practice of entrusting enforcement includes three common cases in practice:

1. Direct entrusment;
2. Admitting, issuing an enforcement decision, and then entrusting;
3. Compulsory entrustment.

Firstly, direct entrustment.

In the case of direct entrustment after receiving the arbitral award, if the Judgment Debtor has a place of residence or property in a different province, DCE will issue an entrusting decision immediately (without decreeing an enforcement decision). In terms of law, although the initial competence belongs to the jurisdiction of the enforcement agency receiving the first arbitral award (territorial jurisdiction), as well as it clearly states in the arbitral award the place of residence (or where the property is located) does not belong to this enforcement agency, the competence will be transferred to the local enforcement agency where the Debtor lives or has property.

This procedure depends on the eviction agencies’ decision, as a Judgment Creditor, we do not have many options to optimize this step but follow up closely with the DCE. They should (must) promptly inform us about the entrustment so we can determine which SCE will receive and handle this case so that we can prepare a specific plan to coordinate with the localities.

Secondly, admitting, issuing an enforcement decision, and then entrusting.

In the case of admitting and issuing an enforcement decision before entrusting, immediately after receiving the verdict, the decision of the Court, the person to be enforced has a place of residence or property in a different district or province, the enforcement agency that receives the first instance verdict still admits and issues an enforcement decision in the usual cases and then issues a decision to withdraw (in whole or in part) and issue a delegation decision. With the awareness that issuing admission and issuing an enforcement decision is within the jurisdiction according to the legal regulations. The advantages, in this case, are to strictly manage the input of the enforcement agency, which can be remedied immediately when the enforcement agency does not receive the delegation; in this case, the assigned targets are included in the level of task completion of individuals as well as collectives, but the implementation is too cumbersome, time-consuming, costly and laborious.

Thirdly, compulsory entrustment.

The arbitral award states that the Judgment Debtor is living in the City, and the competence belongs to DCE. However, through the verification results, it is found that the person/entity to be enforced has moved to another locality. Then DCE shall entrust this case to the local enforcement agency where the person/entity to be enforced is currently residing/located.

It should be noted that determining the competence of the eviction agencies is also complicated, and it depends on the determination of the place of residence of the litigant. According to the reference of the Residence Law, the place of residence of citizens in general and of litigants in civil enforcement, in particular, is very wide. A legal place of residence is a house, vehicle, or other house that a citizen uses for residence. The place of residence of a citizen is a legal place where the person regularly lives.

Stage 5. Civil enforcement procedure conducted by SCE.

The next procedures will be performed by SCE as a normal civil enforcement process. Here are seven steps for the enforcement of civil judgments:

(i).??????????Issue an enforcement decision.

Within 05 working days from the date of receipt of the entrusted decision, the Head of SCE shall issue an execution decision and notify in writing DCE that the case has been delegated successfully. In case of executing a decision to apply interim measures, the execution decision must be issued immediately.

SCE shall also inform the Judgment Creditor and the Judgement Debtor about the issuance of the enforcement decision.

(ii).????????Send the judgment enforcement decision.

After issuing the enforcement decision, SCE shall send it to the People's Procuracy at the same level within 03 working days. In addition to the People's Procuracy, SCE must also send the enforcement decision to the People's Committee of the commune, ward, or township (hereinafter referred to as the People's Committee at the commune level) or the agency, the organization involved in the implementation of the enforcement decision.

(iii).??????Notify the enforcement of the judgment.

Along with sending the judgment enforcement decision to the People's Procuracy at the same level, SCE must also notify the parties, persons having rights and obligations related to the enforcement of the judgment so that they can perform their rights and obligations.

Except in cases where it is necessary to prevent the parties from disposing of, destroying property, or evading enforcement of the judgment, the notification must be made within three working days. The enforcement agency may choose one of the following methods to notify:

• Publicly posted: This method is usually applied when the person to be notified does not have a clear place of residence, place of residence, or last place of residence.
• Notification through the media: This method is usually applied when individuals, organizations, or agencies are the parties to the case. The notification is made on daily newspapers, radio, and television stations legally established in Vietnam.
• Sending a notification by mail: This is the most common notification method. The notification letter must be sent directly to the individual (must have the signature or thumbprint of the person or the signature of the legal representative of the organization, agency), for the agency, organization (must have the signature of the person in charge of receiving the notification).

(iv).??????Verify the Enforcement of the Judgment Conditions

The verification of the enforcement of the judgment conditions is divided into two cases as follows:

• If the Head of SCE takes the initiative to issue the enforcement decision: The Enforcer must verify the judgment conditions of the Judgment Debtor.
• If the Head of SCE issues the enforcement decision upon request: In case the parties, although they have applied all possible measures but still cannot self-verify the enforcement conditions, they can request the Enforcer to verify the enforcement conditions of themselves. The request for the Enforcer to assist in verifying the enforcement conditions must be in writing, listing all the measures that the person making the request has applied but have no results, and submitting the relevant documents and evidence.

(v).????????Enforcement of the Judgment.

The enforcement of the judgment will be carried out on the basis of the voluntary implementation of the person to be enforced, if after the legal period specified by the law, the Judgment Debtor does not voluntarily implement the enforcement decision, SCE will force them to implement it.

(vi).??????Payment of Enforcement Fees.

Payment by the Judgment Debtor voluntarily to implement the enforcement decision or to be issued a compulsory enforcement decision shall be paid in the following priority order:

• First are the enforcement fees and the expense for the Judgment Debtor to hand over the house (in case it is the only place of residence) (if the remaining money after performing the payment obligations is not enough for the Judgment Debtor to find a new place to live, then the Judgment Debtor can deduct an amount of money corresponding to the average rent in one year).
• After deducting the above two items, the enforcement money is paid for maintenance; wages, salaries, and allowances under the Labor Code; compensation for damages under the Civil Code. Next is the court fee and finally other fees to be executed in accordance with the decision, and judgment of the Court.
• In the case where the enforcement money is collected from the compulsory Enforcement decision - compulsory Enforcement, the Enforcement for many people is prioritized for those who have requested up to the time of the compulsory Enforcement decision. The remaining executors are paid the remaining money according to another enforcement decision up to the time of payment.
• After completing all payment obligations, the remaining money from the sale of assets will be returned to the Judgment Debtor.

(vii).????Completion of the enforcement.

The execution is completed when one of the following decisions is made:

• The decision of SCE to return the application for execution; or
• The decision of SCE to suspend the execution; or
• Documents and evidence proving that the parties have fully performed their rights and obligations under the execution decision.

The parties have the right to request SCM to confirm the results of the enforcement when the Judgment Debtor has fully implemented the enforcement decision. The head of SCM is responsible for issuing a certificate of the results of the enforcement to parties within 05 working days from the date of receipt of the request./.

?Disclaimer: The article is based on my personal experience and knowledge with a specific case. The information and opinions expressed in this article are my own and do not necessarily reflect the views of any other individual or organization. I welcome your feedback and suggestions. If you see anything that needs to be improved, please feel free to comment.

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