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This is evident that the attorney plays an integral role in the arbitration procedure currently. The parties in a dispute usually engage the competent lawyers who master the legal knowledge to protect their own legitimate rights and interests. Parties pursuing arbitration proceeding may incur a significant amount of costs, in which the main expense is legal fees. In some cases, arbitral tribunals award the successful party a considerable amount of costs and attorneys’ fees from the unsuccessful party; on the contrary, in other cases tribunals decide little or nothing that the winning party claims. When arbitral tribunals consider a claim for costs and fees, including the attorneys’ fees, three issues are taken into account in general: (i) whether they have authority to award these costs and fees; (ii) if so, how should they allocate them between the parties appropriately; and (iii) how much should they award.(1)
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In Vietnam, claim for reimbursement of attorney fees is more often accepted by the arbitral tribunals.(2) The arbitrators are supported by Law on Commercial Arbitration 2010 (LCA 2010), namely Article 61(1)(h) allows the arbitral tribunal to allocate the arbitration costs and other related costs although the meaning of the phrase “other related costs” has still not been clarified thoroughly in legal documents. In addition, Article 36(2) of VIAC Rules opens further ground for VIAC arbitrators by the provision that the arbitral tribunal will have the power to decide that one party shall bear all or part of the legal costs or other reasonable expenses incurred by the other party.
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Due to the lack of certain provisions about defining the legal costs as well as determining the attorney fees as damages, the arbitral tribunals often make decisions this issue inconsistently. The recent trial practices towards the given legal matter should be taken into account, in which the claim for reimbursement of the attorney fees could be accepted by arbitrators on the basis of damage incurred by the claimant. Take a part of an arbitral award of VIAC in 2013 as an example, “in addition, the claimant also provides evidence proving that he had to pay the attorney fees serving the dispute resolution of 50000,000. The arbitral tribunal finds that the above the attorney fees arising from respondent’s breach of the contract and are justified by the nature of this case, so it is an acceptable type of damages”.(3) In the tribunal’s view, attorney fees which the claimant incurred resulted from respondent’s breach of the contract, then claimant had the right to claim the attorney fees to pursue the arbitration proceeding.
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In the absence of an express theory, the tribunal must examine whether the attorney fees are considered as a type of damages under the laws of Vietnam. Pursuant to Article 303 of Law on Commerce 2005, in order to prove the attorney fees that are the damages one party has to bear owing to the breach of contract of other party, the aggrieved party must demonstrate the three factors (i) breach of the contract, (ii) direct and actual damage and (iii) causal link between damage and the breach.
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In this circumstance, this is the fact that one party violates the agreed responsibility in a mutual contract or basic obligations stated in the existing law. This leads to the hiring the attorney of the aggrieved party to defend against the violation affecting its rights and interests. More importantly, the causal link between the breach and the damage that is reasonable fees for attorney might be recognized clearly. Additionally, the winning party could prove the attorney fees should be considered as the direct benefit that the aggrieved party would have received if there was no breach under Article 302.2 of Law on Commerce 2005 to support their claim for reimbursement. As a consequence, many arbitral tribunals and even judges in particular cases approve of the claim for reimbursement of attorney fees when the requesting party, usually the successful one proves their claim fully meeting three mentioned factors.
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From the authors’ perspective, it is rational for the arbitral tribunals to assert the claim for reimbursement for the lawyer fees. The reason for our standpoint is that the fees for lawyer are damages which one party bears on account of the violation of the other. In other words, if there is not the breach leading to litigation, one party will not shoulder fees for the attorney to protect its own rights and interests. In addition, besides the illustrated domestic regulations, Common Law countries often ascertain fees for the lawyer might be the obligation of the unsuccessful party to the successful one. For instance, according to Order 59 rule 1 of the Rules of Court in Singapore, “costs” include fees, charges, disbursements, expenses and remuneration. This consists of a wide range of amount payable such as hearing fees, filing fees for court papers, professional fees charged by lawyer, disbursements for miscellaneous expenses such as photocopying charges that the loser is required to pay.
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In conclusion, although the existing Vietnam legal system does not regulate towards the winning party’s right of requesting the losing one to repay the attorney fees as damages explicitly, almost the arbitral tribunals tend to accept this order as a practice in arbitration. Nevertheless, in order to accelerate the persuasion and the unification in judgement, the legislators should supplement and interpret this issue in detail.
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Source:https://m.facebook.com/story.php?story_fbid=1561419460708078&id=327567457426624
Xoài Nghệ 